Agаin we are asked to decide whether a delay caused by a cо-defendant is chargeable to appellant for purposes of computing the 180-day period in which a defendant must be brought to trial under Pa.R.Crim.P. 1100. On thе basis of
Commonwealth v. Brown,
- Pa.Super. -, -,
A criminal complаint was filed against appellant, Edward Hagans, on January 8, 1975, charging him with burglary, robbеry, theft, receiving stolen property, endangering the life of another person, and conspiracy. According to the time limits for trial set forth by Pa.R. Crim.P. 1100, appellant’s trial should have commenced on or before July 7, 1975, assuming there were no delays occasioned by appellant. See Pa.R.Crim.P. 1100(d). On August 27, 1975 appellant presented a motion to dismiss the charges to the lower court because of the violation of the 180-day rule of Pa.R.Crim.P. 1100. The motion wаs denied and trial commenced on September 8, 1975 in which appellant was found guilty as charged. At no time were any extensions for the commenсement of trial granted to the Commonwealth.
The lower court found that although appellant “did not actively request any continuances,” he “stоod idly by and was content to let William Hagans and Williamson [appellant’s сo-defendants] wage the delaying warfare.” Opinion of court below аt 5. The lower court further *396 stated: “From what appears before me, Edwаrd Hagans [appellant] timely was tried because he did not meaningfully dissoсiate himself from his co-defendants’ delays and accepted their benefits as a matter of trial tactics.” 1<L. at 6. After subtracting the days of delay caused by the co-defendants from the total number of days it took to bring aрpellant to trial, it appears that appellant was tried within the 180-dаy period. For that reason the lower court denied appellant’s motion to dismiss under Pa.R.Crim.P. 1100.
We would be inclined to agree with the lower court if thе Commonwealth had presented affirmative evidence that appellant consented or gave the appearance of approval to the delays caused by the co-defendants. For example, in
Commonwealth v. Hickson,
235 Pa.Superior Ct. 496,
However, in the present case, there is no evidence that appellant made any statements or acted in any other manner that would indicate that he approved of the delays occasioned by his co-defendants. Rule 1100 does not create any further duty on the part of a defendant who is prosecuted by thе Commonwealth along with his co-defendants in a joint trial to affirmatively disassociate himself from their delays. Instead, our Court has often noted “it is not the defendant’s duty to bring himself to trial.”
Commonwealth v. Adams,
Because of the violation of Pa.R.Crim.P, 1100, judgment is reversed and appellant is discharged,