*1 A.2d 765 Pennsylvania COMMONWEALTH BEAN, Appellant. Roger Pennsylvania. Superior Court of Feb. 1976. Submitted Decided Dec. *2 Allentown, appellant.
Henry Perkin, for S. Allentown, appellee. Orloski, Richard J. JACOBS, WATKINS, Judge,
Before President and HOFFMAN, CERCONE, PRICE, der and VAN VOORT SPAETH, JJ. Judge: VOORT,
VAN der Rog- appellant 4,1974, by jury, On December after trial Timely guilty er Bean was found of indecent assault. denied, appellant post argued trial motions were and and pay prosecution to un- sentenced to costs dergo imprisonment Lehigh County in the Prison for a years. Appeal term of six months to two was taken judgment September 30, imposed from the of sentence argues first the Common *3 appellant’s application wealth failed to file an answer to quash days being to indictment within of served seven with application, Commonwealth, that and that the Pennsylvania reason of of Procedure Rule Criminal 308(a),1 must be deemed to the “well have admitted pleaded Appellant’s re appellant’s application. facts” of Although is misplaced. liance on is Rule applicable generally pretrial applications to to answers applications relief, apply for it for does not to answers to ap dismissal for violation of Rule 1100. This becomes parent provides it that when is understood that Rule 305 pretrial applications for least ten relief must be filed at days provides applica trial, while before that any may tions for relief time under Rule 1100 be filed at pretrial before trial. with Since Rule which deals applications relief, inapplicable for is to situa- Rule 1100 Applications 1. Rule 308. to Answers Pretrial (a) may days after serv- Answers be filed not later than seven pretrial except ice application, good of the shown. for cause to the well Failure answer shall be deemed an admission of pleaded application. facts averred in the deals with 308, which tions, logically that Rule it follows inappli- relief, is applications for also pretrial to answers copy provides of (f) that a Rule 1100 cable. Section be served 1100 shall application for under Rule relief an Commonwealth, shall have attorney who for the the on us, the case right In the before to heard thereon. be the day for Attorney the set trial on was served District judge application. The lower court copy the a with why day show the indictment a rule to cause issued Attorney quashed, to which the District be should not hearing held on A October an answer. was filed day filed an Order the lower court same and appellant’s application. find the Com- denying We answering appellant’s appli- tardy in not was monwealth to have admitted not be deemed cation and should application. quite incon- appellant’s It would be facts attorney provide sistent to application right on to dismiss to be heard an
with right answer had not because an then foreclose that and days. seven been within filed argument is
Appellant’s Com second comply bring not with Rule monwealth failed days filing of the ing appellant of the to trial within 270 excluding complaint. properly from the that, find We granted request delay period at the two continuances attorney, within trial was commenced appel required period. complaint charging Since assault filed on November lant with indecent Septem trial not listed for until and the case was *4 27, days passed, days 1974, or more a total of 329 59 ber permitted the time. by the rules in effect at than were hearing court, of however, The lower determined by (totaling, our continuances October that two granted request calculations, days) at the of 94 had been accordingly attorney. The lower court appellant’s application We find denied for dismissal. (d) (2) but Section all under days delay. period these 94 must be excluded from the Subtracting days days delay. 64 from 329 leaves 265 Appellant properly period tried within the of time by mandated Rule
Appellant’s argument final is that the court trial refusing jury following point in erred to the read charge: gentlemen, you pros- “Ladies and when consider the testimony concerning ecutions’ the defendant’s [sic] identity you any prior must consider inconsistent identifying you statements made If witness. you contradictory, find them must return a verdict of guilty.” not clearly refusing
The trial court Was
correct in
to so in-
jury.
testimony
struct
When
of a witness varies
from an
witness,
earlier statement made
the dis-
crepancy may
credibility,
affect the witness’s
but it does
require
jury
not
an instruction that
disbelieve
Alessio,
witness.
537, 544,
Commonwealth v.
313 Pa.
(1934);
Judgment affirmed.
HOFFMAN, dissenting J., opinion files a in which SPAETH, J., joins.
PRICE, J., dissents.
HOFFMAN, dissenting: Judge, Appellant discharged pur- contends that he should be 1100(f), suant to Rule Pa.R.Crim.P., he because was not brought days to trial until 329 after the issuance of the days complaint, criminal peri- after the relevant time expired. 1100(a) od (1), had Pa.R.Crim.P. *5 upon facts: parties agree several relevant a crimi The 2, 1973, charging complaint on issued November was nal assault. He on appellant with indecent was arrested De 3, preliminary hearing at time a was cember which for See Pa.R. 140(f)(1), scheduled December 10. 10, preliminary hearing On December the was Crim.P. disagree parties for The about who moved continued. alleges the that the con the continuance: Commonwealth counsel; ap request of tinuance was at the the defense hearing pellant states the continued for “some that was however, court, unknown reason.” The lower as found hearing preliminary 10, follows: “December 1973—first requested —defendant a because illness.” continuance hearing 5, February 1974, was rescheduled for but again postponed that was The Commonwealth time. postponement Appellant to the as refers a continuance. day alleges one or that he “at that time for a two asked Again, the continuance.” lower court found “hear ing rescheduled from December 10—defendant resched unavailability uled another continuance because again, hearing rescheduled, counsel.” Once was 14, again, continued, 1974, March it in in this was stance, because the victim was not attend. ill and could Finally, hearing May 8, 1974. held was on Term, 1974, September
Trial was scheduled for be- yond day period. trial, September the 270 on Prior to 27, quash the 1974, filed a motion to indictment.1 The court denied the motion on October Appellant subsequently convicted indecent appeal post-trial assault. This followed mo- the denial of tions. technically appellant argues in its
1. The brief with prior he filed it petition did not file trial because parties to judge directed trial court after calendar had 1100(b) and proceed See Rule trial to voir dire before the court. peti I believe Pa.R.Crim.P. the Comment to Rule Pa.R.Crim.P.; 305, 310, cf. timely Rules tion was filed. See Robinson, Pa. Cf. Commonwealth Pa.R.Crim.P. 29, 1976) (Concurring (filed Super. March A.2d 1005 PRICE, opinion J.) Although produced Rule 1100 copious litigation,2 has my directly point. research reveals no case on I believe question posed that the by appellant he is enti- —whether *6 discharge tled to delay because the extensive before his preliminary hearing chargeable is not to him —can an- be solely by swered reference to the Rule. 1100(d) provides
Rule determining pe- the “[i]n riod for commencement of trial, there shall be excluded period therefrom such delay any stage pro- of the ceedings as results from:
“(1) unavailability the of the defendant or his attor- ney;
“(2) any continuance in
thirty (30) days
excess of
granted
request
at the
of the
attorney,
defendant or his
provided
only
period
beyond
the
(30th)
the thirtieth
day shall be so
delay
excluded.” If the
is excluded under
1100(d),
Rule
petition
Commonwealth need not
ex-
to
period;
tend the
period
automatically.
is extended
Cf.
Shelton,
Commonwealth
8,
v.
469 Pa.
In the
case,
instant
the Commonwealth contends that
delay
from
1973,
December 10,
until
14, 1974,
March
See,
Whitaker,
436,
g.,
e.
Commonwealth
v.
467
359 A.2d
Pa.
5,
Bunch,
22,
(filed May
1976);
174
Commonwealth v.
466 Pa.
351
O’Shea,
491,
(1976);
A.2d 284
Commonwealth
v.
465 Pa.
350 A.2d
Woods,
255,
(1976);
872
Commonwealth
v.
Pa.
461
The lower court referred to the as the re- brief, of two sult continuances. In its while the Com- argues they continuances, monwealth were it also periods delay resulting to the refers as from the una- vailability Arguably, counsel. thereby instant case would be controlled provides 1100(d)(1), which determining peri- “[i]n *7 od for commencement of trial, there shall be excluded period delay any therefrom such of stage pro- of the ceedings as results from:
“(1) unavailability of the defendant or his attor- ney.” continuances, for two
Appellant his counsel asked and bright unavailability. no I find apparently of because especially if the continuance line between a continuance — delay unavailability caused a requested because of is —and provides unavailability. to Rule The Comment (d)(1), in purposes subparagraph addi- that “[f]or precluding any the availabili- tion to other circumstances ty attorney, should or his the defendant defendant during period any of time be deemed unavailable for apprehended which he not his wherea- could be because by due bouts were unknown and could not be determined extradition, diligence; during or a or which he contested grant responding jurisdiction delayed refused to or ex- physically or'during tradition which the defendant was mentally incompetent during proceed; or or which the to compulsory process requir- defendant was absent under ing appearance elsewhere in other connection with
judicial proceedings.”
I
to mean that
read
Comment
juris-
an accused is unavailable if the court does not have
against
opposed
proceed
him,
situation
diction to
as
a
deny
grant
in which a court has discretion to
or
a contin-
Pa.Super.
Reese,
uance.
v.
See Commonwealth
(1975).
The lower court
found
attorney
was un
first the
and then his
because
Assuming
on
accused is unavailable
available.
that an
hearing,
do not believe that the Common
date
a
I
indefinitely
rescheduling
delay
a hear
wealth can
before
argue
ing
period should
then
the entire
be
charged against
Commonwealth v.
accused. Cf.
(1976);
Wade,
Pa.Super. 454,