Commonwealth v. Bastone ( 1978 )

VAN der VOORT, Judge,

dissenting:

In this case the complaint was filed on August 24, 1975 charging robbery and other associated crimes. The 180 day run date was therefore February 20, 1976. The trial did not take place until June 4, 1976 which was 285 days after the complaint was filed and 105 days after the run date of February 20, 1976. After the complaint was filed the preliminary hearing was scheduled for August 29th. The hearing had to be continued first because the defendant was unavailable since he was in the hospital and the hearing was re-scheduled for September 9th, thus defendant’s unavailability caused 11 days delay.

The preliminary hearing was re-scheduled for September 9th, but this was continued to September 16th for the reason that defendant was unavailable, he being in prison, thus 7 days delay was caused by the defendant’s unavailability.

The trial of - the case was set for November 3, 1975. It was continued to February 17th upon the application of the defendant’s attorney. This continuance of 106 days was uninterrupted. These continuances began on November 3rd when trial was postponed until December 4th. It was continued upon application of defendant’s attorney from December 4th to January 6, 1976 and was further continued upon application of defendant’s attorney from January 6th to February 17th. This total continuance resulted in a delay of 106 days from which I would subtract the 30 days grace period provided by Pa.R.Crim.P. 1100(d)(2)¹ thus leaving 76 days delay caused by a continuance brought about by the defendant. The defendant later on waived 22 days delay occurring from May 3rd to May 25, 1976.

To me it seems clear that the 18 days delay caused from August 29th to September 16th, plus the 76 days delay from November 11th to February 17th, plus the 22 days delay waived by the defendant comes to a total of 116 days. Subtracting these 116 days from the 285 days which had run between the time of filing the complaint and the actual trial leaves 169 days within which period of time trial was had. The appellant in this case has used virtually every means at his command to sabotage the court procedure in this case. For this playing fast and loose with the trial court, the majority would reward the defendant by vacating his sentence and ordering him discharged. I dissent to this decision.

I would affirm the judgment of sentence of the court below.

JACOBS, President Judge, joins in this opinion.

1 . The majority holds that the appellant’s attorney by filing separate applications causes this lengthy continuance to be fractured and segmented into three separate continuances and in accordance with Commonwealth v. Shields, 247 Pa.Super. 74, 371 A.2d 1333 (1977) would subtract 90 days from this period of continuances.