Commonwealth v. Cunningham , 247 Pa. Super. 302 ( 1977 )

PRICE, Judge:

The appellant contends, inter alia, that his right to a speedy trial was violated since he was not brought to trial within 180 days from the filing of the criminal complaint as required by Pa.R.Crim.P. 1100(a)(1). We agree with this contention, reverse the judgment of sentence, and order the appellant discharged.

The criminal complaint involved herein was filed on August 6, 1974. The case was first listed for trial on January .15, 1975, within the 180 days prescribed by the applicable rule, but appellant did not appear. The dissent, citing Pa.R.Crim.P. 1100(b) (p. 311), finds that trial commenced on that date and that all time elapsed thereafter is immaterial under the Rule. We refute this finding. The comment to Rule 1100 clearly states the intention of the Rule in respect to.the commencement of trial:

“A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire . . . or to some other such first step in the trial.”

We do accept, however, that the evidence therefore establishes the unavailability of appellant as of January 15, 1975, and as such, commences a period of unavailability pursuant to Pa.R.Crim.P. 1100(d)(1).

The crucial question then becomes how many days are thus excludable. This in turn depends upon a record determination of the availability of appellant subsequent to the trial’s first listing on January 15, 1975.

Appellant’s Motion to Dismiss, filed September 3, 1975, and hence properly and timely filed pursuant to Pa.R. Crim.P. 1100(f) alleges that Montgomery County, through its Sheriff’s Office, filed a detainer against appellant at the Holmesburg Prison in Philadelphia on February 5, 1975. Although it is true appellant was incarcerated under one of the various aliases used by him, it is also apparent that at least the Sheriff of Montgomery County on that date had located the appellant. The dissent’s discussion of the time period from February 5, 1975 to the actual commencement of the trial on September 4, 1975 (pp. 311 and 312) is therefore not applicable.

Although we can find no testimony by appellant offered on the Motion to Dismiss, it was apparently conceded by the district attorney at hearing (N.T. 14) that such a detainer was in fact filed on February 5, 1975, but that the district attorney’s office was not advised that the Sheriff had located appellant. The Commonwealth also admits this point in its brief, where it explains:

“Accordingly, a bench warrant was issued which was the basis for lodging a detainer against him at the Holmesburg Prison in Philadelphia, where he was located by Montgomery County authorities on February 5, 1975 (Commonwealth’s Brief p. 2)” (Emphasis added)

Under the record and by the Commonwealth’s admission, it is evident that the appellant was available for trial after February 5, 1975. Therefore, under Pa.R.Crim.P. 1100(d)(1), the appellant was unavailable only from January 15, 1975, until February 5, 1975, a period of 22 days.¹ Pursuant to Pa.R.Crim.P. 1100, assuming this computation, trial should have commenced on or before February 25, 1975. In fact it commenced on September 4, 1975, a period of 212 days after the filing of the detainer, 187 days after the expiration time of Rule 1100, and 389 days after the filing of the criminal complaint.

We would end this opinion at this point but for a curious turn taken in this appeal. The lower court (p. 307) clearly based its refusal of the appellant’s Motion to Dismiss upon Pa.R.Crim.P. 1100. In addition, at the time of dismissal, the lower court specifically based the denial on the finding that appellant was unavailable. (N.T. 15) At no point in the lower court’s opinion can mention be found that Pa.R. Crim.P. 1100 is inapplicable by reason of the Act of June 28, 1957, P.L. 428, Sec. 1 (19 P.S. § 881). This argument first appears in the Commonwealth’s Brief before this Court:

“The Trial Court properly denied defendant’s motion to dismiss under Rule 1100(f), because it has no application to the facts of the case.” (Commonwealth’s Brief p. 4) “In fact, the Commonwealth does not rely at all on Rule 1100.” (Commonwealth’s Brief p. 4)

Rule 1100 was the sole argument presented by the Commonwealth in the lower court and was the sole basis of the lower court’s denial of appellant’s motion.

We are not prepared, however, to hold that the Commonwealth’s present argument is not properly before us. On the one hand it is clear that had appellant shifted the basis of his motion to dismiss from the Rule in the lower court to the statute on this appeal we would have applied the doctrine of waiver. On the other hand we, as an appellate court, may independently arrive at a different ground than that advanced on appeal in affirming the lower court. This principle that an appellate court may affirm if any ground for affirmance exists has often been announced. Prynn Estate, 455 Pa. 192, 315 A.2d 265 (1974); Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970). We therefore accept the Commonwealth’s argument, since we independently could adopt it as a basis for affirming.

It is clear that Pa.R.Crim.P. 1100 does not suspend the Act of June 28, 1957, P.L. 428, § 1 (19 P.S. § 881) (the so called “180-day rule,” which deals with the disposition of charges outstanding against a prisoner, upon his request for trial). It is not, however, clear just how the statute was to be interrelated to Rule 1100.

We believe that the Pennsylvania Supreme Court, by its failure to suspend this statute, could only have intended it remain effective to the extent that its provisions did not conflict with those of the Rule or that a defendant was, under Pa.R.Crim.P. 1100(a)(1), to be given a viable method of securing trial in less than 270 days. The second of these alternatives has now, for all practical purposes, lost its usefulness since presumably the cases where a complaint is filed after June 30, 1973, but before July 1, 1974, have crossed the bar of appellate procedure and sailed into history.

There remains, therefore, only the purpose of survival of the statute unless the Rule indicates a contrary result. This in effect limits the application of the statute only to those situations where the whereabouts of the defendant is unknown and the Commonwealth, by the exercise of due diligence, is unable to locate him. The statute is preserved in those limited circumstances for the purpose of imposing an obligation upon the defendant to inform the seeking authorities of his whereabouts. Absent the defendant so informing under those circumstances no time limit is brought to bear on the right to speedy trial.

Viewed in this light the vitality of the Rule is observed and preserved. To adopt the view urged by the Commonwealth does violence to the concept of speedy trial first announced in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972) and firmly adopted in Pa.R.Crim.P. 1100.

This is a matter of first impression and the lower court was never given the opportunity to comment upon it or research it. The Commonwealth cites no authority for the proposition advanced by it, relying solely on a public policy argument that we cannot accept. Since the statute was adopted prior to the concept of speedy trial in this Commonwealth as it presently exists, and indeed prior to any of the landmark United States Supreme Court cases of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), we are satisfied that the legislature in the adoption of this statute did not intend, nor contemplate, any inference with the current conceptions of speedy trial. To the contrary, we believe that in 1957 the legislature intended the statute to protect more adequately the right to a speedy trial by giving a defendant a specific method by which to assert that right, while at the same time, adequately protecting the Commonwealth by assuring that a defendant, by concealment of his whereabouts, could not assert a speedy trial right and avoid trial.

The statute then has no application to the appeal now before us. It is now conceded both on the record and by brief, that Montgomery County filed its detainer against appellant on February 5, 1975. His whereabouts were known. The Rule provides the Commonwealth with the right to petition for an extension of time. Whether or not this could properly have been granted need not concern us, since no such request was ever made. The time for trial expired, whether from a breakdown in communications between the office of sheriff and district attorney in Montgomery County or simply because the district attorney’s left hand didn’t know what his right hand was doing or a combination of these reasons.² It matters not to this interpretation, and although we are sure there will be further complaint concerning the discharge of “convicted” criminals on an “outrageous”³ technicality it seems clear that Pa.R. Crim.P. 1100 dictates the reversal of the lower court’s denial of the appellant’s motion to dismiss and that appellant be discharged.

The judgment of sentence is reversed and the appellant is ordered discharged.

VAN der YOORT, J., files a dissenting opinion in which WATKINS, President Judge, and CERCONE, J., join.

1 . In its brief, the Commonwealth, interestingly, would even shorten this period as only running from January 15, 1975, to January 21, 1975, the date when appellant became a prisoner in Philadelphia, thus concluding the 180 day period under Rule 1100 ended on February 8, 1975 (Brief p. 6).

2 . The organizational prowess of the Montgomery County prosecutorial forces was also displayed before this court in Commonwealth v. Gerald Woodson, (filed (J.1726/75). In Woodson, the Commonwealth filed a petition for an extension of time pursuant to Rule 1100 on February 3, 1975, alleging that appellant, Woodson, was “at large” and that a bench warrant had been issued for his arrest. In fact, on February 3, the appellant was in the Montgomery County Prison, where he had been since August 27, 1974, when he had been apprehended on the bench warrant.

3 . I refer here to previous comment on other Pa.R.Crim.P. 1100 interpretations.