572 A.2d 230 | Pa. Super. Ct. | 1990
Appellant, John Monahan, was convicted of unauthorized use of an automobile, receiving stolen property, theft and defiant trespass following a bench trial before the Honorable Anthony J. DeFino. Post-trial motions were denied and appellant was sentenced to twenty-three (23) months imprisonment on the unauthorized use of an automobile charge and two (2) years consecutive probation on the theft charge. Appellant was ordered to pay restitution. This direct appeal followed. We affirm.
Appellant first contends that the lower court erred by denying his motion to dismiss under Rule 1100 because he was not tried within 365 days and second by refusing to dispose of this motion prior to trial.
The complaint in this case was filed on July 1, 1987, resulting in an original Rule 1100 run-date of December 28, 1987. At this time, Rule 1100 required trial to commence within 180 days excluding delay attributable to the defendant or his attorney, judicial delay, or other delay occurring despite the Commonwealth’s due diligence. (Original Rule) The preliminary hearing was continued once, from July 9 to July 20, 1987, because the complaining witness failed to appear. Trial was originally listed for November 5, 1987, but was postponed until January 26, 1988, because a Commonwealth witness was not available. Meanwhile, on December 31, 1987, Rule 1100 was amended to extend to 365 days the time within which trial must commence. (Interim Rule) This amendment retained the exclusions caused by the accused, e.g., unavailability of defendant or his attorney, waiver, or delay caused by defense-requested contin
Relying on Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989), appellant contends that his case is governed by the Interim Rule. Since his trial was not held within 365 days, appellant claims his right to discharge is absolute.
Clearly under either the Original Rule or the Final Rule, appellant would not be entitled to discharge. Under the Original Rule, both the unavailability of a Commonwealth witness and the court’s backlog are valid reasons to allow an extension of time. Commonwealth v. Lafty, 333 Pa.Super. 428, 482 A.2d 643 (1984); Commonwealth v. Bell, 386 Pa.Super. 164, 562 A.2d 849 (1989). The Final Rule specifically provides that, if the court determines that the Commonwealth exercised due diligence and the circumstances occasioning the postponement are beyond the Commonwealth’s control, a motion to dismiss based on a violation of Rule 1100 shall be dismissed. Pa.R.Crim.P. 1100(g). On this appeal, appellant does not argue that the Commonwealth was not duly diligent.
For the same reason, appellant’s claim that the trial court erred in refusing to dispose of his Rule 1100 motion prior to trial must be rejected. The court was under a directive of the Supreme Court not to dispose of any such motions. It was powerless to disobey that directive.
Judgment of sentence affirmed.