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filed: January 4, 1985.


No. 1882 Philadelphia 1983, Appeal of the Order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at Misc. No. 82-9943. (MC 81-07-1474)


Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Del Sole, Johnson and Hoffman, JJ. Johnson, Judge, dissenting.

Author: Del Sole

[ 339 Pa. Super. Page 167]

The sole issue raised in the instant appeal is whether the Appellant was tried in the Philadelphia Municipal Court within the time constraints imposed under Rule 6013 of the Pennsylvania Rules of Criminal Procedure, Pa.R.Cr.P. 6013. Since we find that Appellant was not tried within the time period set forth by Rule 6013, the judgment of sentence is reversed and Appellant is discharged.

The Appellant, Tyrone Haynes, was arrested on July 18, 1981, and charged with aggravated assault, simple assault and reckless endangerment of a person arising out of an altercation in a laundromat in Philadelphia. The preliminary arraignment was held on July 19, 1981, at which time a trial date was set for August 12, 1981 in Philadelphia Municipal Court. On August 12, 1981, Appellant, through counsel, requested and was granted a continuance until September 29, 1981. On September 29, 1981 the Appellant did not appear, a bench warrant was issued and the Commonwealth orally requested an extension of time for trial under Rule 6013. The record establishes the Commonwealth knew that as of October 16, 1981, Appellant was in the custody of the United States Army in the stockade at Fort Dix, New Jersey on the charge of being away without leave (AWOL).

On or about March 24, 1982, the Appellant was arrested in Philadelphia and accorded a bench warrant hearing on March 26, 1982. The record is silent as to the whereabouts or actions of Appellant between October 16, 1981 and March 24, 1982, nor does it state the date Appellant was released from Army custody. When asked by the trial court the Commonwealth was unable and the Appellant unwilling to

[ 339 Pa. Super. Page 168]

    give such information. In any case, Appellant was given a trial date of May 17, 1982, at the bench warrant hearing. For some reason, Appellant was not brought to court on the new date for trial and the case was continued until June 18, 1982. On June 18, 1982, Appellant's counsel withdrew and the Defender Association of Philadelphia was appointed. A defense continuance was granted until August 3, 1982. On that date, the trial court granted the Commonwealth's oral motion to extend under Rule 6013 and denied Appellant's motion to dismiss for failure to comply with Rule 6013. Immediately after, the Appellant was tried and convicted and then sentenced to two years probation.

On August 17, 1982, Appellant filed a petition for a writ of certiorari to the Philadelphia County Court of Common Pleas requesting that said court order the Philadelphia Municipal Court to certify and send a complete transcript to the Common Pleas Court and that his conviction be reversed and he be discharged based on an alleged violation of Rule 6013. On July 6, 1983, the petition for a writ of certiorari was denied after which Appellant filed this timely appeal.*fn1

On June 28, 1974, the Supreme Court of Pennsylvania adopted Rules of Criminal Procedure for the Philadelphia Municipal Court effective July 1, 1974. Pa.R.Cr.P. 6000-6013. In doing so the Court prescribed certain rules of criminal procedure applicable only to cases instituted or transferred to the Philadelphia Municipal Court. Rule

[ 339 Pa. Super. Page 1696013]

(a)(2) provides that trial in a Municipal Court case in which preliminary arraignment is held after June 30, 1975, shall commence no later than 120 days from the date on which the preliminary hearing is held. Subsection (c)(1) allows the Commonwealth to file a petition to extend the time for commencement of trial and subsection (d) prescribes that in determining the period for commencement of trial the following time is excluded: any period of time for which the defendant is unavailable or any time period covered by a defense continuance. Thus, Rule 6013 is remarkably similar to Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Pa.R.Cr.P. 1100. We will accordingly review the instant case in a manner similar to Rule 1100 cases.

Appellant concedes that certain time must be excluded from the calculation of the period for commencement of trial under Rule 6013. Since Appellant was arrested on July 19, 1981, the mechanical run date for Rule 6013 was November 16, 1981. Appellant agrees that the period from August 12, 1981 until September 29, 1981, must be excluded because of the defense continuance and that the period of September 29, 1981 until October 16, 1981, should be excluded because of the Appellant's unavailability, for a total of 66 excluded days. However, Appellant contends that the time period between the date the Commonwealth knew Appellant was in Army custody, October 16, 1981, and the date of Appellant's later arrest, March 24, 1982, cannot be excluded because the Commonwealth failed to exercise due diligence in obtaining the custody of Appellant from the Army. In fact, Appellant argues that the Commonwealth did absolutely nothing to secure his custody from the Army and did not know his exact whereabouts during the period of October 16, 1981, until March 24, 1981. This, the Appellant contends, ...

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