Commonwealth v. Bean

¶1dissenting:

¶2Appellant contends that he should be discharged pursuant to Rule 1100(f), Pa.R.Crim.P., because he was not brought to trial until 329 days after the issuance of the criminal complaint, 59 days after the relevant time period had expired. Rule 1100(a) (1), Pa.R.Crim.P.

¶3*373The parties agree upon several relevant facts: a criminal complaint was issued on November 2, 1973, charging appellant with indecent assault. He was arrested on December 3, at which time a preliminary hearing was scheduled for December 10. See Rule 140(f)(1), Pa.R.Crim.P. On December 10, the preliminary hearing was continued. The parties disagree about who moved for the continuance: the Commonwealth alleges that the continuance was at the request of defense counsel; the appellant states that the hearing was continued for “some unknown reason.” The lower court, however, found as follows: “December 10, 1973 — first preliminary hearing —defendant requested a continuance because illness.” The hearing was rescheduled for February 5, 1974, but was again postponed at that time. The Commonwealth refers to the postponement as a continuance. Appellant alleges that he “at that time asked for a one or two day continuance.” Again, the lower court found that “hearing rescheduled from December 10 — defendant rescheduled another continuance because of unavailability of counsel.” Once again, the hearing was rescheduled, for March 14, 1974, and again, it was continued, in this instance, because the victim was ill and could not attend. Finally, the hearing was held on May 8, 1974.

¶4Trial was scheduled for the September Term, 1974, beyond the 270 day period. Prior to trial, on September 27, 1974, appellant filed a motion to quash the indictment.1 The court denied the motion on October 31, 1974. Appellant was subsequently convicted of indecent assault. This appeal followed the denial of post-trial motions.

¶5*374Although Rule 1100 has produced copious litigation,2 my research reveals no case directly on point. I believe that the question posed by appellant — whether he is entitled to discharge because the extensive delay before his preliminary hearing is not chargeable to him — can be answered solely by reference to the Rule.

¶6Rule 1100(d) provides that “[i]n 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.” If the delay is excluded under Rule 1100(d), the Commonwealth need not petition to extend the period; the period is extended automatically. Cf. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (filed October 8, 1976); Commonwealth v. Cutillo, 235 Pa.Super. 131, 339 A.2d 123 (1975); compare Rule 1100(c), Pa.R.Crim.P., with Rule 1100(f), Pa.R.Crim.P. The Commonwealth is permitted to raise an argument that the accused caused the delay in its answer to a petition under Rule 1100(f), Pa.R.Crim.P.

¶7In the instant case, the Commonwealth contends that the delay from December 10, 1973, until March 14, 1974, *375was caused by appellant and that this period of time — 94 days — should be excluded from the time between the complaint and trial. Therefore, according to the Commonwealth, only 235 days elapsed from the time of the filing of the complaint until the case was tried. At the same time, the Commonwealth argues that both postponements were the result of appellant’s requests for continuances.

¶8The lower court referred to the early delays as the result of two continuances. In its brief, while the Commonwealth argues that they were continuances, it also refers to the periods of delay as resulting from the unavailability of appellant and his counsel. Arguably, the instant case would thereby be controlled by Rule 1100(d)(1), which provides “[i]n 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.”

¶9Appellant and his counsel asked for two continuances, apparently because of unavailability. I find no bright line between a continuance — especially if the continuance is requested because of unavailability — and a delay caused by unavailability. The Comment to Rule 1100 provides that “[f]or purposes of subparagraph (d)(1), in addition to any other circumstances precluding the availability of the defendant or his attorney, the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; or during which he contested extradition, or a responding jurisdiction delayed or refused to grant extradition or'during which the defendant was physically or mentally incompetent to proceed; or during which the defendant was absent under compulsory process requiring his appearance elsewhere in connection with other *376judicial proceedings.” I read the Comment to mean that an accused is unavailable if the court does not have jurisdiction to proceed against him, as opposed to a situation in which a court has discretion to grant or deny a continuance. See Commonwealth v. Reese, 237 Pa.Super. 326, 352 A.2d 143 (1975).

¶10The lower court specifically found that delay occurred because first the appellant and then his attorney was unavailable. Assuming that an accused is unavailable on the date of a hearing, I do not believe that the Commonwealth can delay indefinitely before rescheduling a hearing and then argue that the entire period should be charged against the accused. Cf. Commonwealth v. Wade, 240 Pa.Super. 454, 360 A.2d 752 (1976); Commonwealth v. Adams, 237 Pa.Super. 452, 352 A.2d 97 (1976). Unless counsel agrees to a specific time period, Commonwealth v. Hickson, supra, I believe that the total time chargeable against an accused is only the specific number of days during which he is unavailable. See Commonwealth v. Reese, supra. This view is bolstered by the Comment, which provides that an accused is unavailable for that period during which, for example, he cannot be located or during which he is on trial. The Comment does not suggest that additional time may be excluded if, once the defendant is available, the case cannot be scheduled expeditiously.

¶11Therefore, I would reverse the judgment of sentence and order appellant discharged.