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filed: April 11, 1988.


Appeal from the Judgment of Sentence entered June 5, 1987, Court of Common Pleas, Lycoming County, Criminal Division at No. 85-11,348.


Ronald C. Travis, Williamsport, for appellant.

Amy L. Hallenbeck, Assistant District Attorney, Montoursville, for Com.

Olszewski, Del Sole and Johnson, JJ. Del Sole, J., files a dissenting opinion.

Author: Johnson

[ 373 Pa. Super. Page 583]

This case involves an interpretation of Paragraph (d)(3)(i) of Rule 1100. Prompt Trial, Pa.R.Crim.P., which requires that periods of delay resulting from the unavailability of the defendant shall be excluded in determining the period for commencement of trial. We are asked to decide whether attempts by the defendant to qualify for Accelerated Rehabilitative Disposition (ARD), involving contacts with the attorney for the Commonwealth, would operate to overcome the "unavailability" of the defendant resulting from an

[ 373 Pa. Super. Page 584]

    outstanding bench warrant issued for failure to appear at a scheduled arraignment. We conclude that such preliminary contacts do not render the defendant "available" under Rule 1100(d)(3)(i), and therefore affirm the judgment of sentence.

The Honorable Thomas C. Raup conducted a non-jury trial on a case stated basis in May, 1987. The judge found Craig A. Snyder, Defendant, guilty of driving under the influence of alcohol (D.U.I.), failure to stop at a stop sign, reckless driving, and disorderly conduct. The reason advanced for proceeding on a case-stated basis was to preserve the issue of Defendant's right to dismissal of the charges based upon the Commonwealth's alleged violation of Rule 1100. Judge Raup sentenced the Defendant to a term of forty-eight hours to one year at the Lycoming County Prison on the D.U.I. conviction, together with a $700 fine. Defendant received a concurrent sentence of one years' probation on the disorderly conduct conviction, with a special condition of that probation being a $300 fine. The Sentencing Order dated June 5, 1987 and filed June 10, 1987 is silent as to the disposition of the convictions on failure to stop at a stop sign and reckless driving.

The sole issue presented on this appeal is whether the court erred in denying Defendant's oral motion, submitted at the conclusion of the case-stated non-jury trial, in the nature of a motion in arrest of judgment asserting the Rule 1100 issue.

From our review of the record, including the Transcript of Proceedings of March 13, 1987 (Hearing on Defendant's Motion to Dismiss Under Rule 1100) the following facts emerge. Following Defendant's arrest on December 2, 1985, a written complaint was filed on December 4th and a preliminary hearing was scheduled before a district justice in Jersey Shore, Lycoming County. Before the scheduled hearing date, the Defendant appeared before the district justice, waived his right to a preliminary hearing, received a written notice of his arraignment scheduled for January 27,

[ 373 Pa. Super. Page 5851985]

in the Lycoming County Court of Common Pleas, and was released on his own recognizance.

On or before January 2, 1986, Defendant appeared in his attorney's office and signed an Entry of Appearance and Waiver of Arraignment form. The form was not then filed. On January 27, 1986, the case was called in court and the Defendant did not appear. At the Commonwealth's request, a bench warrant was issued the same day. Nearly six months later, while the bench warrant was still outstanding, Defendant's counsel filed the Entry of Appearance and Waiver of Arraignment form with the Clerk of Court's office on July 16, 1986. The record does not reflect any service of a copy of the form on the Office of the District Attorney at any time.

The bench warrant was served on the Defendant on January 6, 1987. The same day, the Defendant was brought before the issuing judge who determined that "the error is on the part of Defense Counsel for not having appropriately filed a waiver of arraignment." The issuing judge released the Defendant under the previously filed recognizance bond, to appear before the court as directed for purposes of further hearings.

Two days later, defense counsel filed a Rule 1100 motion which was denied on March 13, 1987, following the oral presentation of certain stipulated facts and documents. See Transcript of Proceedings, March 13, 1987.

The case-stated non-jury trial was thereafter promptly held on May 5, 1987 resulting in a guilty verdict.

At the March 13, 1987 hearing on the Rule 1100 motion to dismiss, the following facts were presented to the court, being theretofore outside the official court records. On January 2, 1986, defense counsel wrote to the District Attorney, indicating his representation of the Defendant and enclosing an A.R.D. application. On January 13, 1986, the District Attorney's office wrote to the West Branch Drug and Alcohol Center, requesting that the Center contact Defendant to arrange for certain testing in connection

[ 373 Pa. Super. Page 586]

    with the A.R.D. application. The Center contacted Defendant and the testing was accomplished on January 29, 1986.

Following receipt of the results of the Court Reporter's Network (CRN) examination, the District Attorney's office wrote to Defendant on February 25, 1986, informing him that he was being denied access to the A.R.D. Program. The stipulation of March 13, 1987, as orally presented by defense counsel, indicates that subsequent to Defendant receiving notice of his denial for A.R.D. sometime around February 25, 1986, nothing was done with regard to the case until January 6, 1987, when Defendant was seized pursuant to the bench warrant.

We begin our analysis by setting forth the pertinent subsection of Rule 1100, as it was in effect at all times material herein:*fn1

Rule 1100. Prompt ...

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