Commonwealth v. Chapman

HESTER, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Erie County.

Appellant, after a jury trial, was convicted of attempted burglary and loitering and prowling at night time. Post verdict motions were denied and a jail sentence of five to ten years was imposed.

Appellant asserts that he was denied his right to a speedy trial, as mandated by Pa.R.Cr.P. 1100(a)(1), thus requiring his discharge. We disagree and therefore will affirm the judgment of sentence.

The complaint herein was filed on July 11, 1973. The case was scheduled for trial on February 21, 1974. On that date, the Commonwealth was ready to proceed. However, defense counsel could not proceed because the case of another defendant he represented was called for trial the same day. Later that day, the entire jury panel was dismissed, thus making it impossible to select any more juries during the February trial term. Since Erie County’s next trial term was in May, appellant’s trial was rescheduled for May 15, 1974.

The run date, for Rule 1100 purposes, from the date the complaint was filed, was April 7, 1974.¹

On May 9, 1974, appellant filed a motion to dismiss under Rule 1100(f). The case was continued pending the outcome of appellant’s motion. Defense counsel and the district attorney submitted a stipulation of facts regarding the motion on January 15, 1975. On January 20, 1975, appellant’s motion was denied.

Appellant contends that since he was not tried within 270 days of the date the complaint was filed and the Commonwealth never moved for a continuance, his motion to dismiss should have been granted.

We disagree. The actual period of delay at any stage of the proceedings attributable to the “unavailability of the defendant or his attorney” is automatically excludable from the time limits of Pa.R.Cr.P. 1100(a)(1) — 270 day rule or 1100(a)(2) — 180 day rule. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

Instantly the Commonwealth was ready to proceed with trial on February 21, 1974 — well within the 270-day limit. Defense counsel could not proceed. Thus the next available trial date was May 15, 1974.

Under Rule 1100(d)(1), no continuance was necessary. This was not a case of judicial delay. Appellant was not tried within 270 days because his counsel could not be present. Whatever the reasons trial could then not be held until May, the original fact remains — appellant’s counsel was unavailable, thus fostering the resultant delay.

Therefore in “counting” the 270 days, we exclude those days which fell between February 21,1974 and May 15,1974. See Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977). Thus, appellant’s motion to dismiss was inopportune; for the 270 days would not have expired before May 15, 1974.

We see nothing “harsh” or unfair in the result reached here. Our criminal courts are overflowing with cases. Court calendars must be precisely planned, months in advance. Where a defendant cannot proceed on the date assigned, through his own fault, we see no reason to charge the subsequent delay to the Commonwealth, when the court schedule does not permit trial until a few months later.

Judgment of sentence affirmed.

PRICE, J., files a dissenting opinion.

1 . Pa.R.Crim.P. 1100(a)(1) provides that “[t]rial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.”

5. April 7, 1974, was the 270th day following filing of a written complaint against appellant.