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filed: April 19, 1985.


NO. 03406 PHILA. 1983, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Nos. 1724 to 1726 November, 1982


John J. Calabro, Philadelphia, for appellant.

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

Spaeth, President Judge, and Olszewski and Cercone, JJ.

Author: Spaeth

[ 341 Pa. Super. Page 502]

This is an appeal from judgment of sentence for burglary and related charges. Appellant argues that the trial court erred in (1) denying his Rule 1100 motion to dismiss, (2) admitting his inculpatory statements, and (3) admitting evidence obtained through a search of appellant. He also argues that trial counsel was ineffective. We find appellant's arguments without merit and therefore affirm.

Rule 1100 requires that trial commence no later than 180 days from the date on which the complaint is filed, but excludable from this period, is "such period of delay at any stage of the proceedings as results from: (i) the unavailability of the defendant or his attorney; (ii) any continuance granted at the request of the defendant or his attorney." Pa.R.Crim.P. 1100(a)(2) and (d)(3). The complaint in this case was filed on November 3, 1982, resulting in a run date of May 2, 1983. Appellant was not tried until August 18, 1983 -- 108 days beyond the run date. Appellant concedes, however, that as a result of his motion for a continuance, 76 days are excludable. N.T. 8. Excluding this period brings the run date to July 17, 1983.

The Commonwealth argues that it may exclude a second period. On February 14, 1983, appellant, who had been on bail, failed to appear for trial. Instead, his sister-in-law appeared and told the court, and the district attorney, that appellant was in federal custody in Lexington, Kentucky. N.T. 8-9. The case was continued to March 21, so that the Commonwealth could initiate extradition proceedings. On March 21 appellant was still in custody in Kentucky, and the case was continued to June 3. On March 24 the Commonwealth obtained custody of appellant. On June 3 appellant's counsel requested and was granted a continuance, and on August 18 trial commenced. Under Pa.R.Crim.P. 4013(c), appellant as a person admitted to bail was required to "give written notice to the issuing authority, the clerk of courts, the district attorney, and the court bail agency or other designated court bail officer, of any change of address within forty eight (48) hours of the date of such

[ 341 Pa. Super. Page 503]

    change . . . ." The Commonwealth's argument is that because appellant failed to give written notice that he was in custody in Kentucky -- of his "change of address" -- and because he failed to appear for trial when his case was called on February 14, he violated the conditions of his bail, and that "any resulting delay [is] excludable under Rule 1100(d)(1)." Brief for Commonwealth at 5.

A defendant on bail who fails to appear at a court proceeding of which he has been properly notified is unavailable from the time of that proceeding until he is subsequently apprehended or voluntarily surrenders, and the Commonwealth is entitled to exclude this period without any showing of due diligence. Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978); Commonwealth v. Derrick, 322 Pa. Super. 517, 469 A.2d 1111 (1983); Commonwealth v. Colon, 317 Pa. Super. 412, 464 A.2d 388 (1983); Commonwealth v. Williams, 299 Pa. Super. 226, 445 A.2d 537 (1982); Commonwealth v. Bell, 283 Pa. Super. 196, 423 A.2d 1056 (1980). We have held that this principle applies even where the defendant is incarcerated, and therefore can not appear, if he has not complied with the notice requirement of Rule 4013(c). Commonwealth v. Byrd, 325 Pa. Super. 325, 472 A.2d 1141 (1984); Commonwealth v. Colon, supra 317 Pa. Super. at 421, 464 A.2d at 393; Commonwealth v. Williams, supra 299 Pa. Super. at 230, 445 A.2d at 539. However, in each of these cases the district attorney was unaware of the defendant's incarceration. Here, in contrast, the district attorney was informed of appellant's whereabouts, even though, contrary to Rule 4013(c), not in writing and not until the day set for trial. We therefore do not agree with the trial court, which found Byrd "dispositive." Slip op. of tr. ct. at 2.

Nevertheless, we find that appellant was accorded his right to a speedy trial. Under Rule 1100(d), the Commonwealth may exclude not just the time that the defendant or his attorney is unavailable for trial, but the entire period of delay that results from such ...

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