*1 Pennsylvania, Appellant, COMMONWEALTH Melvin YANCEY. Pennsylvania. Court of Superior March Submitted 2, 1977. Decided Dec. Dis- Glass, E. Assistant and H. Goldblatt Deborah Steven Attor- District Fitzpatrick, F. Emmett and Attorneys, trict Commonwealth, appellant. for ney, Philadelphia, Luber, appellee. Philadelphia, I. Michael WATKINS, Judge, JACOBS, Before President CERCONE, PRICE, HOFFMAN, VAN der VOORT and SPAETH, JJ. *2 VOORT,

VAN der Judge: The Commonwealth of has from appealed two Court of the Orders of Court Common Pleas of which Philadelphia County by con- following victions was discharged pursuant to Pa.R.Crim.P. 1100.1 The facts of each of two same, relevant the cases the being the Commonwealth was granted permission to consolidate appeals. the 29, 1974,

On November the defendant and two co-defend- entered a store in jewelry ants Philadelphia and robbed the employees of various items of jewelry and cash. The police three apprehended the individuals the store and discover- ed that carrying defendant was a A firearm. com- was against 30, filed the defendant on plaint2 November jewelry 1974 for the store and on that date robbery same a second was filed him for complaint3 against robbery of a Prompt Rule 1100. Trial. 1. (a)(2) complaint Trial in court case in a a which written is filed

against 30, the defendant after June 1974 shall commence no later eighty (180) days than one from hundred the date on which the complaint is filed. jewelry robbery, In following 2. filed store appellant charged following with the offenses: 6, 1972, 1482, 334, 3701, Robbery. Act of Dec. P.L. No. 18 Pa.C.S. § 6, 1972, 1482, 334, 3921, Act of P.L. Dec. 18 No. Pa.C.S. Theft. § 1972, 6, 1482, 334, 3925, Receiving Act of P.L. Dec. No. 18 Pa.C.S. § property. stolen 6, 1972, 1482, 334, 903, Conspiracy. Act of Dec. P.L. No. 18 Pa.C.S. § 1972, 6, 1482, 334, Act of Dec. P.L. No. Pa.C.S. §§ PUFA. 1972, 6, 1482, 334, 908, Act of Dec. P.L. No. Pa.C.S. § Prohibited weapon. offensive 1972, 6, 1482, 334, 907, Act of Possessing Dec. P.L. No. 18 Pa.C.S. § instruments of crime. complaint arising charged 3. The from the Gino Restaurant incident with: 1972, 6, 1482, 334, 3701, Robbery. Act of Dec. P.L. No. Pa.C.S. § 1972, 6, 1482, 334, Act of Dec. P.L. No. 18 Pa.C.S. Theft. § that occurred on November Restaurant 1974. Gino’s the two offenses were set for Preliminary hearings date, preliminary 1974. On that hearings December However, December there were continued to to be a on the record as to discrepancy why appears continued. The Court Municipal Hearing were hearings the cases were continued due to the indicates Sheet transcript of defense counsel. The Court Municipal absence that the co-defendant failed to On Decem- appear. indicates hearings, the date of continued preliminary ber warrant was because he a bench issued defendant that it was not appear. alleges failed to March 1975 that it discovered that the defendant until in the Delaware Prison at Broad Mead- lodged County ows a County robbery charge. preliminary on Delaware were then-scheduled for hearings May On date, however, no voluntary defender was appointed; *3 was available and the record indicates that the de- judge fendant was incarcerated in the Federal Peniten- Lewisburg the defend- tiary. Apparently regarding information erroneous, ant’s in was but no Lewisburg incarceration provided of how this information came to is explanation pass was then for either or the record. case by party 27, 5, 1975, which time continued from 1975to June May 3, it 1975. The reason for this again July was continued to continuation was that it was the belief that the defendant 2, 1975, was still in the the case Lewisburg July Prison. On 7, was continued to due to the failure of July 7, 1975, Commonwealth witness to appear. July brought 6, 1972, 1482, 334, 3925, Receiving Act of Dec. No. P.L. 18 Pa.C.S. § property. stolen 1972, 1482, 334, 6, 903, Conspiracy. Dec. Act of P.L. No. 18 Pa.C.S. § 6, 1972, 1482, 334, 2702, Agg. Act of Dec. P.L. No. 18 Pa.C.S. § Assault. 6, 1972, 1482, 334, 2705, Recklessly Act of Dec. P.L. No. 18 Pa.C.S. § endangering person. another 6, 1972, 1482, 334, 6106, 6108, Act of Dec. P.L. No. 18 Pa.C.S. §§ PUFA. 1972, 1482, 334, 907, Possessing Act of Dec. P.L. No. 18 Pa.C.S. § instruments of crime. 6, 1972, Act of Dec. P.L. No. 18 Pa.C.S. Prohibited § weapons. offensive continuation, the reason for which another was that to hear the case declined judge assigned to do so because transcript there was no of the prior proceedings. It was then referred to the court administrator who listed the case 1975. On that date the case August was continued because all in the mistaken parties persisted belief that defendant was still in the Prison. Lewisburg On August 1975, the district filed an attorney application for an order the time for commencement of trial extending pursuant 1100(c)4 of the Rules of Criminal Proce A hearing dure. on Commonwealth’s application was However, scheduled for on that September date the hearing was continued order to give newly appointed an defense counsel5 opportunity answer the application. preliminary defendant’s hearing held finally on 4, 1975, whereafter September he was held for court. On 16, 1975; the September hearing on the Commonwealth’s for an extension of time in application which to bring defendant to trial was continued to September 23, 1975 because the district attorney was unavailable. Following September the court granted the Commonwealth an extension of time to October 1975.6 (c) prior expiration period At time to the for commence- attorney may apply ment of for the Commonwealth to the extending court for an order the time for commencement of trial. A application copy upon of such shall through be served attorney, any, if and the defendant shall also have the to be granted only heard thereon. Such shall be if trial cannot prescribed period despite be commenced within the diligence by Any the ify spec- Commonwealth. shall or date within which trial shall be commenced. necessary private 5. It appointed to have represent counsel being represented defendant since his co-defendant was the Public *4 Defender’s Office. Although petition the Commonwealth’s was not filed within the days, initial 180 the court determined that a days total of 136 were not to be included in the calculations because either the defendant or attorney prepared were not available or proceed. Therefore, the court the petition Commonwealth’s concluded, to extend the time bring in which to the defendant to timely trial was filed and further- more, the displayed Commonwealth diligence in its efforts to bring the defendant days to trial within 180 and an extension of time proper. 1975; cases were listed for trial on robbery Both October however, the Commonwealth moved trial on the jewelry the and court to extend the time robbery petitioned store the Restaurant until the robbery trial on Gino’s completion case. This robbery store jewelry request granted the lower court. At no time to either trial by prior did the file a written under Rule application 1100(f)7 defendant have the dismissed. charges 20, 1975,a

On October found the jury appellant guilty on all from his charges stemming participation the jewelry store the of robbery except charge On October conspiracy. trial, having waived his to a right jury defend- ant was found guilty by judge on all the charges stemming from the Gino’s Restaurant robbery. Post verdict motions 27,1975 were filed in both cases on wherein October defend- ant contended that he was not brought to trial on either case within the of time under Rule required 1100 of the Rules of Criminal Procedure and therefore convictions should be vacated and the cases dismissed. Ivins the defendant’s Judge granted motion in arrest of and on the judgment discharged store jewelry The basis of his decision robbery. was that to the contrary decision Commonwealth’s for an hearing judge’s petition not filed within extension of time was 180 days excluding any required automatic extensions under Rule 1100. Judge Richette with Ivins’ and Judge reasoning concurred likewise in the discharged concerning case the robbery the Gino’s Restaurant. the orders of Following court defendant, the discharging appealed to this Court. issues are presented by

Several Commonwealth for However, our review. we must initially consider the issue raised Commonwealth that the defendant waived his (f) attorney may At time before the defendant or his apply dismissing charges to the court for an prejudice order with ground copy on the this Rule has been violated. A of such upon attorney Commonwealth, be shall served Any who shall also have the to be heard thereon. charges prejudice shall dismiss the with discharge the defendant. *5 to raise the right argument that he should have been dis- 1100(f). charged under Commonwealth maintains defendant’s failure to file a written application commencement of trial prior constitutes a waiver of that claim. It argues although the defendant partici- in the on the pated petition Commonwealth’s for an time extension of although issue was raised orally strict prior compliance 1100(f) with Rule a requires written made prior to trial before such relief can by case, be considered court. In the present the first time the issue was presented in writing was in the defend- post-verdict ant’s motions. The court entertaining post- motion, Ivins, (later verdict J. joined Richette, by J.) had to us, confront the e., issue i. facing same did the defendant waive his to raise the claim right under Rule 1100(f)since he failed to file a written application. lower court ruled that he had not waived his right under 1100(f) because he prior had to trial orally argued that the trial court should override Judge Greenburg’s Common- wealth an extension. The court then proceeded to conduct another full hearing on the issue of whether or not the Commonwealth’s petition under Rule 1100(c) was timely filed. It has been the rule in this Commonwealth for some time that the proper method of challenging the denial of a right to a trial has been speedy by filing motion to quash the indictment. Commonwealth v. Roundtree, 458 Pa. (1974); A.2d 285 Gates, Commonwealth v. 429 Pa. (1968). With the promulgation Rule 1100 specific time limits and procedures have been codified for the purposes of an protecting accused’s to a speedy trial and making standards to be more applied managea- ble. Strict compliance with the dictates of the Rule are therefore necessary order to prevent confusion and to preserve its function. proper Accordingly, we find that by the defendant’s failure to file a written application before trial pursuant to Rule 1100(f) he has waived his right to have that issue considered.8

8. cf. Sprankle, Pa.Super. 361 A.2d 385 (1976). it was determined that error the lower court

Having defendant, it is unnecessary to dis- discharged to have issues raised the Commonwealth. remaining cuss the *6 9, of June The Order of the Court below vacating are hereby discharging verdicts and are and said verdicts reinstated and the cases are reversed sentencing. remanded result.

PRICE, J., concurs in the HOFFMAN, J., dissenting opinion. files a SPAETH, J., notes his dissent.

HOFFMAN, dissenting: Judge, Commonwealth, contends that the post-verdict Appellant, to Rule appellee pursuant in discharging court erred motions Pa.R.Crim.P.; I Appendix. disagree 19 P.S. 1100(f), motion court order. therefore, post-verdict affirm the would, 30, 1974, stemming two from complaints November On were The against appellee. robberies filed two separate November at a Philadelphia occurred on robberies 30, 1974, on November at a food restaurant1 and fast charged to the fast food restaurant incident 1. The related appellee with: Code, Robbery: Act of December P.L. No. The Crimes 6, 1973; 3701. § eff. June Pa.C.S. § Code, supra; 18 3921. § Theft: The Crimes Pa.C.S. Code, supra; Property: Receiving Stolen Crimes Pa.C.S. 3925. § Code, supra; Conspiracy: The 18 Pa.C.S. 903. § Crimes Code, supra; Aggravated The Crimes 18 Pa.C.S. 2702. § Assault: Code, supra; Recklessly Endangering Another Person: The Crimes 2705. 18 Pa.C.S. § Code, to be without a License: The Crimes Firearms Not Carried supra; 18 Pa.C.S. 6106. § Property Carrying Public in Philadel- Firearms on Public Streets or Code, phia: supra; 18 Pa.C.S. 6108. § The Crimes Code, supra; Possessing of 18 Pa. Instruments Crime: Crimes 907. C.S. § Code, Weapons: supra; The Crimes 18 Pa.C.S. Prohibited Offensive § store.2 The Philadelphia jewelry preliminary court hearing continued the scheduled for 10,1974, December until 17, 1974.3 When December failed to appellee appear at this the same court issued a bench hearing, warrant for his 11, 1975, arrest. On March the Philadelphia District Attor- office a detainer ney’s lodged against appellee in Delaware where he had been County incarcerated at Broadmeadows 17, 1974, Prison since December on an unrelated charge. The rescheduled preliminary hearing was continued from 27, 1975, May to June appointment defender to voluntary represent appellee. The criminal transcript also reflects that there was no judge available on Further, May the transcript states that appellee was incarcerated at the federal at prison Be- Lewisburg.4 cause of its unsubstantiated belief that the court Lewisburg, continued the preliminary hearing once *7 5, 1975, from June to again 1975. The July hearing 7, 1975, then until postponed July because a Commonwealth witness did not appear. Administrative confusion on July 1975, caused another continuance. 18, 1975, On August the preliminary hearing 1,1975, was relisted for October because of the unsubstantiated belief that appellee was an inmate at Lewisburg Prison. At the district attorney’s request, date for the preliminary hearing was advanced. The court conducted the finally hearing on September 4, 1975, after which appellee was held for trial. 26, 1975,

On August appellant filed an application to extend the time for trial pursuant to Rule 1100(c).5 After jewelry 2. The charged related to the appel- store incident crimes, exception with aggravated assault, lee the same with the of complaint. as the first 3. The reason for the continuance is transcript unclear. The criminal However, tocappear. states the co-defendant failed the Munici pal hearing appellee’s attorney present. Court list states that was not allegation. 4. The record does not reflect source of this It is unclear Lewisburg whether was incarcerated at Prison at anytime disposition relevant to the of the instant case. 5. Rule states: on

hearing argument September on the propriety of 1100(c)extension, a Rule pre-trial motion court 16, 1975, continued the to hearing September to afford appellee’s newly appointed counsel6 an to opportunity re- spond appellant’s application. 16,1975, On September court continued the Rule 1100(c) September 23, 1975, because the district attorney was unavailable.7 On 30, 1975, court, September pursuant to Rule 1100(c), extended the mandatory period commencement of trial on both complaints 29, 1975, from May the 180th day filing after the of complaint, October Trial commenced on the store jewelry robbery October after the days of the filing complaint. On 20, 1975,the jury October returned a verdict of guilty on all criminal charges except conspiracy. On October 1975,the trial court also granted appellant’s second Rule 1100(c)appli- cation to extend the time for trial on the restaurant robbery 12, 1975, charges beyond October on the condition that the case be trial called to immediately upon completion of store trial. jewelry On October after appellee trial, waived his to a right jury the trial court8 found of all appellee guilty charges from the stemming restaurant incident. prior expiration “At time to the for commence- attorney may apply ment for the Commonwealth to the extending court for an order the time for commencement of trial. A copy upon of such through shall be served attorney, any, if and the defendant shall also have the to be granted only heard thereon. Such shall be if trial cannot prescribed period despite be commenced within the diligence by *8 Any granting application

the Commonwealth. order spec- such shall ify period the date or within which trial shall be commenced.” represented appellee’s Because the Public Defender’s office co-de- fendant, appointed private represent the court appellee. counsel transpired September 23, 7. There is some confusion as to what Although appellant mentions that there was a on its 1100(c) application, entry Rule I have not found a docket for such a hearing. any I testimony Nor have been able to locate notes of that date. robbery jewelry 8. The restaurant court was different from the trial robbery store trial court. filed motions on both post-verdict cases on Octo- Appellee wherein he that argued ber him to trial within bring days failed to in accordance June with Rule 1100. On the post-verdict motions court, after expressly holding appellee had preserved issue, granted the Rule motion and ordered the of sentence vacated and judgments appellee discharged. This followed. appeal contends that the lower

Appellant court erred in discharg- More ing appellee. specifically, appellant asserts that appel- failure to file a lee’s written application to dismiss the charges pursuant 1100(f)9 to Rule constituted a waiver of his Rule 1100 rights. alternative, In the appellant argues that its Rule petition was timely filed because appel- lee was “unavailable” for much of the prescribed and that appellant had exercised “due diligence” in bringing to trial.

First, I must address the contention that appellee waived his Rule 1100 1100(f) Rule rights. appears to require a defendant to file a written application for an order dismiss- ing the with charges prejudice. I refuse to find, however, that appellee waived his Rule 1100rights by to do so. failing One reason that a written is application preferred is to enable Commonwealth to know the specific basis of a defendant’s claim and to focus its narrowly response. How- ever, case, in the instant it was appellant who filed a Rule 1100(c) petition. Appellee responded the application and, was untimely by implication, that appellee should be discharged pursuant 1100(f). Rule Because appellant had notice of appellee’s precise contentions, it did not suffer any or prejudice from surprise the fact that appellee did not file a written 1100(f) application. 1100(f)

9. Rule states: “At time before attorney may apply defendant or his dismissing to the charges prejudice court for an order with on the ground copy that this Rule has been A violated. of such upon attorney Commonwealth, shall be served who shall Any also have the to be heard thereon. charges prejudice shall dismiss the with discharge the defendant.” *9 488 a written by requiring applica

A second function served that the contentions are framed accurately tion is to ensure and review. appellate for This properly post-verdict and in been satisfied the instant case. Cf. Rule has also purpose Pa.R.Crim.P.; 19 Commonwealth v. 1123(b), Appendix. P.S. 727 In (1977). fact, 249 375 A.2d Kinsey, Pa.Super. nor the post-verdict neither motions appellant, appellee, to frame the issue court contend suffi appellee failed review. on ciently judicial argument for Oral appellant’s transcribed on the record. 1100(c) petition fully Moreover, court expressly rejected motion a post-verdict contention that waived his Rule 1100 rights by Rule 1100(f) application to file a written and found failing the issues to be framed and for review. properly ripe Hence, to a mechanical that a Rule requirement adherence be in 1100(f)application writing post-ver benefit review serves no in the instant appellate' purpose dict case. at bar can be other in distinguished case from cases

which courts of have a appellate found Rule failure 1100waiver because of defendant’s to raise the issue. v. 473 Pa. Taylor, in 374 For Commonwealth example, (1977), the defendant did not at a Rule appear communicate either 1100(c) and failed to his opposi- a continuance. The request tion to the extension or Su- that the could not contest preme Court concluded defendant petition. of the Commonwealth’s In appeal grant Burton, v. 246 371 A.2d 946 Pa.Super. Commonwealth 1100(c) at a Rule (1976), appeared hearing, defendant of the grant but did not contest extension. Our Court to object precludes that “the failure our subsequent stated finding.” review of the court’s Commonwealth v. lower 371 Burton, Pa.Super. A.2d at supra, 948. be construed as instant case cannot another instance where a litigant’s neglect precludes subsequent reliance on an breach of Rule 1100. To the alleged contrary appellee the Rule diligence attending demonstrated hear- grant and in extension. ing contesting Sprankle, Pa.Super. A.2d the most (1976), provides apposite precedent instant case. In the Commonwealth filed Sprankle, timely *10 As in the bar, Rule case at the lower application. court a hearing granted conducted the extension. Cercone, writing for the found Judge Majority, that the defendant did not waive his Rule 1100 by failing to rights file a written to dismiss: dismiss,

“In this to or a held petition pursuant to the would then forth petition, the same put the hearing made at on the arguments Commonwealth’s to petition extend. court would then make the same on the as made Commonwealth’s It ruling petition. to require appellant would be senseless to employ a procedure wasteful a preserve speedy trial.” v. Sprankle, 241 supra, Pa.Super. at 361 at 386. A.2d Sprankle,

As in it is difficult to imagine what purposes other than convenience and the prevention occasional of administrative confusion are served aby mechanical rule file that the failure to a written Rule 1100(f) application result, constitutes waiver. As a I would conclude that did not waive his Rule 1100 appellee not rights by commit- ting to that which was raised paper and contested below. I hold, to the contrary, would that raised sufficiently 1100 preserve Rule claim below to it for our review. waiver, Having found no I turn to the merits of appel- lant’s argument. Appellant Rule 1100 contends postverdict motions court erred concluding that its Rule not 1100(c)application timely filed. In Commonwealth Shelton, Pa. 364 A.2d (1976), Court Pennsylvania Supreme stated: “The Commonwealth not seek may an extension' pursuant (c) tunc, to section of the Rule nunc is, pro the applica- tion an for extension must be filed prior to the expiration of set mandatory period forth in the . . Rule . [cita- tions . . . Whether or not an application for omitted]

an timely extension is filed is determined computing

amount of time which has from the elapsed of the filing to the date on which the Commonwealth files its application, less any periods which are properly excludable pursuant (d) section of Rule. If the time so computed exceeds the mandatory period of the Rule . . . then is untimely.” (emphasis supplied). also Harris, See Commonwealth v. Pa.Super. (1976). 1100(d) provides, in part, that “[i]n determining commencement there shall be excluded therefrom such period of delay of the stage proceedings as results from: (1) the unavailabil- ity defendant or his attorney. . . .” The Com- ment to Rule 1100 defines unavailability as “any period of time which during could not be apprehended [the defendant] because his whereabouts were unknown and could not be determined *11 by diligence.” Our appellate courts have held that the Commonwealth bears the burden of showing due diligence. Mitchell, Commonwealth v. 472 553, Pa. 372 (1977); Clark, Commonwealth v. 248 Pa.Super. 184, (1976); 374 A.2d 1380 Commonwealth v. McCafferty, 242 218, Pa.Super. 363 A.2d 1239 (1976); Commonwealth v. Adams, 452, 237 352 Pa.Super. A.2d 97 (1975). case,

In the instant appellant’s Rule 1100(c) application 26, was filed on August 1975, 107 after the days expiration of the mandatory 180 day period.10 Therefore, the relevant whether, is inquiry was appellee “unavailable” pursuant to Rule 1100(d)(1) 107 or more days because unless a period excluded, of at least 107 days is appellant’s application will have been untimely.

Appellant argues that appellee unavailable for 161 days because of his incarceration in a Delaware County prison from December 1974 to May In Com monwealth v. 242 McCafferty, supra, at Pa.Super. 363 “ A.2d at we said that . . . the duty imposed 1100(a)(2) 10. Rule states: complaint “Trial in a against court case in which a written is filed the defendant after June hundred 1974 shall commence no later than one eighty (180) days from the date on which the is filed.” Rule 1100 to by bring the Commonwealth defendant to trial within the is not affected prescribed period by fact elsewhere or his failure of his incarceration to demand trial.” The still has the responsibility unable, despite efforts, “show that it was its duly diligent locate in the Delaware [appellee] County prison and to at trial . . . insure his attendance .” Commonwealth v. Clark, 248 Pa. supra, Super. (Dis A.2d at 1384. HOFFMAN, J.). I with the senting Opinion by agree post- court that verdict motions failed to introduce appellant evidence in the record of its efforts to ascertain appellee’s whereabouts and to secure his at trial.11 presence Further, argue cannot that appellant unavailable after 11, 1975,when appellant March learned of appellee’s wherea bouts.12 Commonwealth Cunningham, Pa.Super. also (1977); 372 A.2d See Comment to Rule 1100. As a result, because has not sustained its burden of showing caused appellee’s unavailability the 161 day in it cannot use delay question, delay extend the period for the of its Rule timely filing 1100(c) application. Therefore, day the 180 period expired before the August filing application, it rendering untimely. Harris, See Commonwealth v. supra. According I would affirm- the ly, post-verdict motions court order vacating of sentence13 judgments and discharging appel lee in accordance with Rule 1100(f). Clark, supra,

11. Contrast the instant case with Commonwealth v. which the record was insufficient to determine whether the Com- dispatched duty diligence. monwealth had result, its to exercise due As a *12 judgment our Court vacated the of sentence and remanded for Here, findings. disposition inappropriate further would be no because there is evidence on the record that exercised diligence appellee’s to ascertain whereabouts. day delay 12. Because I have concluded that none of the 161 was appellee’s unavailability, attributable to I would hold that the March April granted by 1975to 1975 exclusion the court which ruled appellant’s 1100(c) application, was unwarranted. appellant’s August 13. Because I have concluded that 1975 Rule filed, untimely it follows that its second application to extend the time for the commencement of the restau- robbery untimely rant trial filed on October 380 A.2d 887 COMMONWEALTH of Harry HILL, Appellant. Superior Court of Pennsylvania.

Submitted March Decided Dec. Therefore, improperly granted. I would also affirm the lower court’s discharging appellee charge. on this