Com. v. Smith

• Citation: 396 A.2d 744,262 Pa.Super. 258
• Parties: COMMONWEALTH of Pennsylvania v. Otis SMITH, Appellant.
• Decision Date: 29 December 1978
• Court: Superior Court of Pennsylvania

Page 744

396 A.2d 744 262 Pa.Super. 258 COMMONWEALTH of Pennsylvania
v.
Otis SMITH, Appellant. Superior Court of Pennsylvania. Submitted March 20, 1978.
Decided Dec. 29, 1978.

Page 745

[262 Pa.Super. 261] Eugene H. Clarke, Jr., Philadelphia, for appellant.

Eric B. Henson, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.

SPAETH, Judge:

This appeal arises from judgment of sentence imposed upon appellant's conviction of burglary, conspiracy, and four counts of robbery. Appellant makes four arguments in support of his prayer for discharge, or, in the alternative, remand for a new trial.

-1-

Appellant argues that his rights under Pa.R.Crim.P. 1100(a) were violated. ¹ Appellant was arrested on March 28, 1975. Accordingly, the one hundred eighty day period prescribed in the Rule for the commencement of trial ended on September 25, 1975. Appellant, however, was not tried during that period. On October 6, 1975, the Commonwealth filed a petition pursuant to Pa.R.Crim.P. 1100(c) for an extension of time to commence trial. This petition was initially denied by the lower court as untimely; but upon reconsideration, the court vacated its original order, and granted the petition. Trial commenced on April 20, 1976.

[262 Pa.Super. 262] Our cases hold that a petition under Pa.R.Crim.P. 1100(c) must be filed prior to the expiration of the mandatory period set forth in the Rule for the commencement of trial, or set forth in a previous order granting an extension of time. Commonwealth v. Delauter, --- Pa.Super. ---, 390 A.2d 1354 (1978); Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977); Commonwealth v. Dandy, 252 Pa.Super. 387, 381 A.2d 972 (1977). Moreover, the Commonwealth will not be allowed to file a petition nunc pro tunc. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). However, in calculating the mandatory period for the commencement of trial, all periods of delay defined in Pa.R.Crim.P. 1100(d) must be excluded. Commonwealth v. Shelton, supra; Commonwealth v. Dandy, supra; Commonwealth v. Miller, 247 Pa.Super. 132, 371 A.2d 1362 (1977). Rule 1100(d) provides:

In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:

(1) The unavailability of the defendant or his attorney;

(2) Any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.

In the present case, the lower court held that three periods of delay had to be excluded. ²

Page 746

² Because we find that at least one period of delay was properly excluded, and that this period was sufficient to make the filing of the Commonwealth's petition timely, we do not consider whether the other periods were also properly excluded.

[262 Pa.Super. 263] On June 9, 1975, a status hearing was held for appellant's case, and the case was listed for trial on August 4, 1975, all pre-trial motions to be filed within two weeks of that date. On July 30 appellant's attorney advised the court that he would be unavailable for trial on August 4 because he was going on vacation. As a result, the case was continued until August 27, 1975. Appellant contends that even though this twenty-three day delay was caused by his attorney's vacation, the delay must be treated as a continuance under subsection (d)(2) of the Rule, and that since the continuance did not exceed thirty days, none of it can be excluded from the one hundred eighty day mandatory period. We believe that the delay, caused by the unavailability of appellant's counsel, must be entirely excluded, and that consequently the one hundred eighty day period did not end until October 18, twelve days after the Commonwealth filed its petition for an extension of time.

It is true that the distinction between a continuance under subsection (d)(2) and a delay caused by the unavailability of a defendant or his attorney under (d)(1) is sometimes hazy especially if the defendant requests the...