Commonwealth v. Casper

SPAETH, President Judge,

concurring:

Manley, I believe, holds that an accused is “unavailable” when he “appears for a court proceeding without counsel and without waiving his right to counsel. . . .” Id., 503 Pa. at 485, 469 A.2d at 1044. Therefore, when appellant appeared on May 27 at his preliminary hearing without counsel, he was “unavailable”. Manley also holds that “the period of delay caused thereby [appearance without counsel] is excludable from the computation of time for commencing trial under Rule 1100 on the ground that the accused is obviously unavailable for trial.” Id. In Manley the Court excluded the period of time from the day that the accused appeared without counsel until the day before the day that counsel entered an appearance for the accused. Therefore, here we should exclude the period of time from May 27, when appellant appeared at his preliminary hearing without counsel, until August 13, the day before counsel entered an appearance on appellant’s behalf. This period is excludable because appellant’s unavailability caused a delay in the proceedings. Pa.R.Crim.P. 1100 (d)(3)(i). See, Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979) (plurality opinion) (automatically exclude period of delay in preliminary proceedings resulting from defendant’s appearance without counsel), Commonwealth v. Millhouse, 470 *367Pa. 512, 368 A.2d 1273 (1977) (same). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977) (uncounseled accused who requested continuance prior to scheduled proceeding not “unavailable”). I therefore agree with the majority that the Commonwealth’s petition to extend filed on November 24, 1981, was timely. But see, Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979), where the Court stated:

[A]ny occurrences between the filing of the complaint and the commencement of the trial which did not affect the time in which the trial was commenced, is [sic] beyond the purview of the Rule and therefore not properly considered as a “delay in the proceedings” within the terms of section (d) of the Rule. “Delay in the proceedings” as used in the Rule requires an actual frustration in the commencement of trial. A postponement of an arraignment which does not in any way prolong the time for the commencement of trial is irrelevant to the question of a speedy trial and is therefore not in fact to be considered in determining the application of Rule 1100 in a given case.

Id., 484 Pa. at 123, 398 A.2d at 975.

I admit that I am uncertain how to reconcile this statement with the decisions in Millhouse and Bussey (which were cited in Manley, though Morgan was not).