Appeal from the Order January 10, 1984 in the Court of Common Pleas of Philadelphia County, Criminal No. 8211-1558-1559.
Leonard Deutchman, Assistant District Attorney, Philadelphia, for Com., appellant.
Jeffery P. Shender, Assistant Public Defender, Philadelphia, for appellee.
Cirillo, President Judge, and Rowley and Beck, JJ.
[ 359 Pa. Super. Page 89]
This is an appeal from an order of the Court of Common Pleas of Philadelphia County discharging the defendant-appellee, John Armstead, on the grounds that the Commonwealth failed to comply with Pa.R.Crim.P. 1100. We reverse.
The Commonwealth filed a criminal complaint against the appellee on November 3, 1982, charging him with burglary and attempted theft. Under the 180 day period mandated by Rule 1100, appellee's mechanical run date was May 2, 1983. The run date is the date by which the Commonwealth must bring a defendant to trial under Rule 1100. See Pa.R.Crim.P. 1100. Appellee was given a trial date of January 12, 1983 which was later relisted, first to February 9 and then to April 12. The relisting became necessary when the State Legislature failed to fill certain judicial vacancies. The appellee was adjudged incompetent to stand trial on April 12. He was not adjudged competent to stand
[ 359 Pa. Super. Page 90]
trial until July 1, 1983 when the matter was continued to October 21, 1983 and marked MUST BE TRIED. The Commonwealth was unable to proceed to trial on October 21, 1983 due to the unavailability of a Commonwealth witness and a continuance was granted to October 24. On that date a Rule 1100 hearing was held and the defendant was dismissed.
The court determined that the Commonwealth had not brought the appellee to trial within 180 days. The trial judge held that once the defendant was declared competent on July 1, he became available for trial. Therefore, the court reasoned that the period between July 1 and October 21 must be included for Rule 1100 purposes, meaning that the Commonwealth exceeded the permissible run date by several months.
The Commonwealth presents two issues on appeal: (1) whether the period of unavailability attributable under Rule 1100 to a defendant declared incompetent to stand trial extends only to the date he is declared competent or extends to the next available trial date; and (2) whether judicial unavailability caused a delay from November, 1982 to April 12, 1983, thereby tolling the 180 day period under Rule 1100.
Under the Pennsylvania Rules of Criminal Procedure, the Commonwealth must bring an accused to trial within 180 days of the filing of a criminal complaint against him. The Commonwealth may only try a defendant beyond the 180 day period if the period of time exceeding 180 days was automatically excludable under the Rule or was excluded by virtue of a valid court order. See Pa.R.Crim.P. 1100. In the instant case, the Commonwealth asserts that even if the 180 day period was running from November 3 to April 12, it was tolled from April 12 to October 21 because of the appellee's unavailability. Appellee argues that he was only unavailable for trial from the date he was ...