*4 SPAETH, Before CAVANAUGH, HESTER and JJ. SPAETH, Judge:
Appellant was robbery, convicted of recklessly theft and endangering argues another person. He on appeal should he be because discharged to speedy a trial 1100, Appendix, has been violat- Pa.R.Crim.P. P.S. under ed. 15, 1978, against criminal issued February complaint a
On listed. There just with the crimes charging him appellant, 1100(a), the had fore, under Pa.R.Crim.P. later, 14, 1978,1 days one hundred to August eighty or 30,May Trial was for appellant’s trial. scheduled commence date, However, appellant without appeared on that 1978. On June the Common and trial was continued.2 counsel 1100(c) a to petition pursuant wealth filed Pa.R.Crim.P. trial, the lower court of time to commence and an extension the should be why petition a rule to show cause granted on and a hearing The Rule returnable June was granted. necessary, if for June deemed was scheduled petition, on the appellant, were on petition served Copies 14. defender, represented counsel who and the public hearing. No answer to the preliminary at his appellant Moreover, hearing filed was held. no and no denying or it—was petition—either on the order September appellant court. On by entered lower 1100(f)for dismissal pursuant to Pa.R.Crim.P. filed a motion ground that the Common charges against him on of the pre had failed commence within thé wealth to answer, filed an Rule 1100. The Commonwealth by scribed 27. was held on At hearing on the petition and found that hearing, lower court the conclusion for trial on that because May was unavailable appellant during not scheduled the summer court terms were criminal 30May trial date after the next available months special crimi- although and that out-of-term mandatory prescribed mistakenly computes 1. 1100(a) ending August as Rule hearing by private represented preliminary Appellant was at his 25, 1978, district attor- this counsel informed the counsel. On entering ney’s in the he be an case office that would not representing at trial. On when would not be counsel, appeared instructed him lower court without public apply or of the defender. On about for the services represent appointed defender was appellant. *5 months, held the summer during appel nal trials had been prior September lant’s trial could not have been held during past “all of the courts this summer were because findings, with matters.” On these the lower court busy appellant’s motion to dismiss. The lower court also denied grant “petition that it would the Commonwealth’s stated today the time of trial until or tomorrow or Friday extend week, there’s a during this whenever court available for trial Although of this case.” the lower court did not explicitly that the petition being granted state was the one the Com monwealth filed on June we must assume that this was petition the court as the Commonwealth had filed no other. The record shows no request by the Commonwealth either or at the hearing ruling before for a *3 the lower court on petition.1 its June The next day, September the Commonwealth filed its second time, for an extension of alleging that it could not try appellant on or before because “there were no judges available and no courtrooms available since all judges occupied courtrooms were with other cases.” Appellant opposed an extension but admitted the unavaila bility judge. of courtrooms and a trial On October court, lower hearing, granted without a an extension of time until the next criminal beginning court term November 27. was tried on December
The Commonwealth argues that all of the
May
1 until
25 should be excluded in determining
the timeliness of appellant’s trial. The Commonwealth rea
appellant
sons that
was unavailable during
this
with
in the meaning
1100(d)(1)
of Pa.R.Crim.P.
he ap
because
for trial
peared
on
30 without counsel
and the next
available
trial date was
25. While we find that
Indeed,
appears
the Commonwealth
still to believe that an order
petition.
was never entered on
its June
See
Brief
Commonwealth’s
(“It
signed
petition”).
at 2
is admitted that no order was
Moreover,
argue
appeal
the Commonwealth does not
on this
that its
timely
trial of
because an extension of time was
granted
petition.
on its June 1
for trial on
30 and for
was unavailable
*6
could be
period
public
thereafter until a
defender
reasonable
him, see,
v.
g.,
to
e.
Commonwealth
appointed
represent
v.
221,
(1979);
A.2d
Commonwealth
404
1309
Bussey,
Millhouse,
512,
(1977);
470
1273
Commonwealth
Pa.
368 A.2d
258,
not
Smith,
(1978),4 may
As
at
consider,
purported
the lower court
charges,
dismiss the
1100(c)
Rule
outstanding
sponte,
sua
Commonwealth’s
may
that was filed on June 1. One
have serious
petition
power
doubts that
the court had the
to consider a
for all intents had been
abandoned
previously
1100(c),
proceeded
could have
ex
Pa.R.Crim.P.
the Commonwealth
Frank,
See,
parte.
g.,
398
371
e.
Commonwealth v.
Burton,
(1979);
A.2d 663
Commonwealth v.
(1977).
A.2d 946
majority
distinguish
The dissent’s assertion that
would
Mill-
“[t]he
Bussey
from the within situation on the basis that in those
house
cases the defendants could
not true. See the
counsel,”
slip op.
afford
at
opinion.
paragraph
first
of footnote 4 of this
Nor
opinion
Bussey.
conflict with Millhouse and
As the dis-
does
show,
quotations
opinions
that when
sent’s
those
hold
an accused
appears
proceeding
waiving
for a court
without counsel and without
*8
counsel,
delay
thereby
right
his
excluded on the
versely,
caused
will be
ground
that the accused was “unavailable.” Con-
proceeding
appears for a court
when an accused
without
waiving
right
counsel and without
thereby
to counsel but does not cause
proceedings,
in the
no
117,
of time is excludable.
Morgan,
(1979);
v.
484 Pa.
4. Defendant was scheduled for trial on May appeared defendant without counsel and the case was continued by the Honorable M. Kosik.
5. The defendant has not been hampered in any way by thus far and will not be so hampered if the granted. extension is allegations
These
clearly were
support
insufficient to
grant of an extension of time to commence trial. That
appellant appeared without counsel on May 30 did not show
that he
14;
could not be
August
tried before
and lack of
prejudice to the accused is not a factor to be considered
aby
court in determining whether to grant an extension of time.
Mayfield,
Commonwealth v.
362 A.2d
grounds,
rev’d on other
(1976).
A.2d 1345
Perhaps recognizing the inadequacy of the Common
averments,
wealth’s
the lower court did not
rely
them in
Rather,
the extension.
judicial
it took
notice that
criminal court terms had not been scheduled for the summer
months and
although
out-of-term
special
criminal tri
als
summer,
were held during the
appellant could not have
been tried previously because all of the courts were busy
with other matters.
taking
notice,
After
the court
found that
the Commonwealth had been duly diligent in
bringing appellant to trial. The
petition,
Commonwealth’s
however, did not aver that
the Commonwealth had been
diligent, or that criminal court terms had not been sched
uled, or that the Commonwealth had asked the court admin
istrator to
appellant’s
schedule
trial for the summer but the
administrator
found such scheduling
impossible.
had
to be
See generally
Smith,
Commonwealth v.
386 in (1978) Support 138 (Opinion 386 A.2d Pa.Super.
255
Lewis,
371
v.
Affirmance); Commonwealth
due diligence).
what constitutes
(1977) (discussing
A.2d
act
purporting
was
short,
the lower court
petition
In
the
the
petition
the
different from
fundamentally
was
upon
fact, together with the Common-
filed. This
Commonwealth
the lower court
rule on
to request
failure
wealth’s
file,
the lower
the conclusion
compels
it did
petition
the extension.
court erred in
14, the one hundred
long
August
tried
after
Appellant was
filing
complaint
of the criminal
eightieth day following
between
period
against him. While
for
the Commonwealth’s
might
December 1
be accounted
time,
between
an
second
for
extension
At
for.
27 remains unaccounted
August
14 and
for
for
at
most,
days
several
unavailable
failed to obtain an
the end of
and the Commonwealth
beyond August
the time for trial
extending
order
discharged.
HESTER, J.,
dissenting opinion.
files
HESTER, Judge, dissenting:
would affirm for the reason set
I
dissent.
I
respectfully
v.
Chapman,
in
in Commonwealth
my Opinion
forth
(1979). I
for the further
473,
(1977),is as to indigent Millhouse, supra, the accused who without preliminary proceeding himself for a presented *10 not his right counsel and did waive to counsel. For this reason, that, proceeding We concluded delayed. the accused was under such circumstances unavailable 1100(d)(1) meaning within the of Pa.R.Crim.P. and that period delay resulting from the i. e. unavailability, counsel entered an was to be appearance, until automati- excluded. cally
Instantly, Bussey appeared preliminary at a proceeding counsel, right counsel, without did not waive his was financially capable retaining private counsel. The in the delay proceeding was the result of these circum- stances and counsel did not enter into the case until Hence, January was unavailable for Bussey it period, pursuant and must be excluded to Pa.R.Crim.P. 1100(d)(1).” Millhouse,
In Commonwealth v.
470 Pa.
(1977),
opinion
of this Court at
Pa.R.Crim.P. 1100(d)(1) provides: “(d) In determining period for commencement of trial, there shall be excluded therefrom such at delay any stage of the proceedings as results from: “(1) the unavailability of the defendant or his attor- ney;”
The actual “period of delay” any stage at of the pro- ceedings attributable to the “unavailability of the defend- ant or his attorney” is an automatic exclusion from the time limits of either 1100(a)(1)—270 Pa.R.Crim.P. rule day (a)(3)—180 or rule. Shelton, See Commonwealth (1976). A.2d 694 who has that a defendant opinion
We are of when that is “unavailable” to counsel waived with his in connection appears proceedings defendant is finan- and such defendant case without defense counsel “unavailability” If the retaining counsel. capable of cially proceedings, in the results in an actual case The record in the instant excluded. automatically able to retain financially while appellee, reveals that the counsel, counsel unrepresented by defense ar- preliminary of the the date February 28, 1974, the date that Abraham raignment, *11 on his behalf. Needleman, appearance entered his Esquire, however, held despite arraignment, The preliminary thus, not actual defense counsel and the absence of it is clear inadequate, record is Although resulted. “una- resulting appellee’s the first actual that date, the 1974. On that occurred on March vailability” retained counsel.” appellee were until proceedings delayed 69 days opinion . . . We are therefore of 28, 1974, the date that until from March áppellee, on behalf of appearance counsel filed his defense rule and of the 270 computation is excluded from the Term, 1975 at No. 718 October Superior the order of Court is reversed. try appellant could not
It is clear that Commonwealth right waived to counsel or represented by until he was Bus- distinguish Millhouse and majority counsel. The would that in those cases within situation on the basis sey from the my opinion, counsel. In could afford the defendants Millhouse. The Bussey in and key that is not the factor entered their appear- counsel had not controlling fact is that The Commonwealth was of the defendants. ance in behalf represented by were they to the defendants try unable to counsel. counsel or had waived their us, trial was scheduled for In the situation before The complaint. the issuance of days following judicial facilities were ready, court time, available, for the first appellant appeared, but the without counsel. Appellant had been represented by private up point. counsel to this The Commonwealth could not then proceed to try appellant without counsel. He was then directed by the court to proceed immediately public defender’s office to ascertain if he qualified for the services of that office. The record public discloses that the defender did not appearance enter his for appellant until September 1, 1978. The majority concludes from this that: “it may not be said was unavailable for the entire period.” (At pp. 1342-1343). The record does support this conclu- sion. Surely had a responsibility exercise diligence in applying for the services of defender. the public Until defender entered his Septem- ber the Commonwealth did not have the means to require appellant’s appearance at trial prior to that date in violation of his right to counsel. Another conclusion of the majority that is not supported by the record is the state- most, ment: “At appellant was unavailable for trial for several days at the end of May_____’ (At 1345). p. Insofar as the concerned, Commonwealth was the appellant was unavailable for trial until the public defender entered his appearance.
I submit that the application of the spelled rule out in *12 Millhouse and Bussey would mandate that 30, 1978 to the date defense counsel entered his appearance, be automatically excluded as delay resulting from the unavailability of counsel.
Appellant was convicted by a jury a brutal armed $41,000.00 wherein robbery was taken from the victims after they had been threatened and beaten. received a fair trial. In my opinion, his conviction should not now be set aside and he discharged, not because he is now found to be not guilty of armed robbery but due to an alleged violation of Rule 1100 which he himself created. The dis- senting opinion of Judge Wieand in Commonwealth v. War- ner, 269 409 A.2d (1979) is particularly appropriate stated, here. There he A.2d 36: away, the one
“Thus, legalese stripped all the is when and his counsel remains is clearly fact that and July thereby continuance in for the responsible were they Now September. trial until of the delay achieved very delay use the agreement seek to avoid their By trial on the merits. caused to avoid a they which which result, encourage games we such a permitting trial courts. Per- with Rule 1100 in the being played are contribute to the disillu- regrettably, we haps even more a criminal comprehend which cannot of a sionment a defendant to cause which allows justice system to obtain a of his own advantage and then take him.” charges against criminal dismissal of serious such a result I believe that Due to the fact respectfully Rule 1100 I required by undesirable and judgment of sentence. I would affirm the dissent. 422 A.2d Pennsylvania ex rel. Janice ATKINS COMMONWEALTH SINGLETON, Appellant. George H. Pennsylvania. Superior Court of Argued 1980. March Sept. Filed Reargument Dec. Denied