NO. 00183 Pittsburgh, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. 8006979 of 1982
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Cavanaugh, Popovich and Hester, JJ.
[ 340 Pa. Super. Page 89]
This is an appeal from the judgment of sentence entered on February 9, 1982, in the Court of Common Pleas of Allegheny County by the Honorable Samuel Strauss. Appellant was sentenced to a term of imprisonment of not less than two years or more than four years for violating the Uniform Firearms Act, 18 Pa.C.S. § 6101 et seq. Appellant avers on appeal 1) that the trial court erred in denying appellant's pre-trial motion to dismiss pursuant to Pa.R.Crim.P. 1100, and 2) that the trial court erred in denying appellant's request to suppress alleged statements made by him to the police at the time of his arrest because the Commonwealth failed to provide him the mandatory discovery required under Pa.R.Crim.P. 305(B)(1)(b). We affirm.
Appellant first contends that the trial court erred in denying his pre-trial motion to dismiss and bases this contention on the Commonwealth's alleged failure to exercise due diligence in bringing him to trial within 180 days as required by Pa.R.Crim.P. 1100. The pertinent facts relating to this contention are not in dispute.
[ 340 Pa. Super. Page 90]
Appellant was arrested on August 29, 1980, and charged with violating the Uniform Firearms Act, 18 Pa.C.S. § 6101 et seq. Appellant was subsequently incarcerated in a federal penitentiary in Morgantown, West Virginia, on an unrelated charge.*fn1 Under Rule 1100(a)(2),*fn2 the trial was to commence within 180 days from August 29, 1980, the date on which the complaint against the appellant was filed, or February 25, 1981. Trial was listed to commence on January 29, 1981, well within the 180 day limit. However, the trial did not commence on that day because appellant had escaped from the federal correctional facility in Morgantown, West Virginia on December 25, 1980. At the time of his escape, appellant knew that trial was listed for January 29, 1981. He then fled to Canada where he was apprehended on January 15, 1981. It was not until February 13, 1981, however, that he was returned to federal custody at Buffalo, New York. He was not returned to Pennsylvania or to the federal institution in West Virginia where the Commonwealth previously knew it had access to him. On February 6, 1981, the Commonwealth filed a petition to extend the time to commence trial pursuant to Rule 1100(c). On February 11, 1981, defense counsel filed an answer opposing the grant of this petition. The order was granted by the Honorable Ronald E. Dauer on February 19, 1981. This order stated that appellant "shall be tried not later than 45 days after [his] return to Pennsylvania."
[ 340 Pa. Super. Page 91]
On June 23, 1981, the Commonwealth filed a Writ of Habeas Corpus ad prosequendum requesting the extradition of appellant from Buffalo, New York, to stand trial in Pennsylvania. Pre-trial proceedings commenced on July 29, 1981, and trial commenced the following day before the Honorable Samuel Strauss, clearly within the 45 days permitted by the order of February 19, 1981. Appellant was found guilty, and this appeal followed.
Appellant argues that the Commonwealth owed a duty to exercise due diligence to bring him to trial but that instead it waited several months from the time the extension order was granted to do so*fn3 even though it was within the Commonwealth's power to procure his return prior to that time. Appellant contends that the Commonwealth's duty to exercise due diligence should be implied or read into Judge Dauer's order of February 19, 1981. The Commonwealth, on the other hand, argues that it had no duty to exercise due diligence because the order did not explicitly require it.
Under Rule 1100, the Commonwealth has 180 days in which to bring the defendant to trial. However, Rule 1100 is tolled under the following circumstances:
(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
(2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
[ 340 Pa. Super. Page 92]
(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court's inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
(4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and ...