375 A.2d 134 | Pa. Super. Ct. | 1977
On February 2, 1975, a complaint was filed against the appellant charging him with various criminal offenses. Appellant’s trial on these charges commenced on September 9, 1975.
The record shows that the Commonwealth continued the instant case from February 10, 1975, until March 14, 1975, from March 14, 1975, until June 20, 1975, and from June 20, 1975, until July 11, 1975, because the complainant was hospitalized and unable to testify. On September 9, 1975,
In denying the appellant’s petition to dismiss, the lower court excluded from its computation of the mandatory period the 130 days between February 10, 1975, and June 20, 1975. The lower court was clearly wrong in so doing. Pa.R.Crim.P. 1100(d) provides that periods of delay may be excluded from the computation of the prescribed time only if such periods of delay are caused by: “(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.” See Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). All periods of delay beyond the mandatory period “ ‘. must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of the rule, [Pa.R. Crim.P. 1100(c)],
. The record is not clear as to whether trial commenced on September 9, 1975, or on October 7, 1975. The appellant, in his brief, concedes that trial began on September 9, 1975. In any event, an exact determination of this issue is not necessary for a resolution of the merits of the instant appeal.
. Pa.R.Crim.P. 1100(a)(2) provides that “[t]rial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”
. Pa.R.Crim.P. 1100(c) provides in pertinent part that:
“At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. ’ ’
. The 180th day in the instant case was August 1, 1975.