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Commonwealth v. Boczkowski3/23/2004
avorable to the prevailing party" and we will not disturb the decision below absent an abuse of discretion. Commonwealth v. Hill, 736 A.2d 578, 581 (Pa. 1999). Pursuant to the Rule and this Court's holding in Hill, a capital defendant must be brought to trial within 365 non-excludable days of the filing of a complaint against him. Id. at 584. See also Commonwealth v. Cook, 676 A.2d 639, 645 n.11 (Pa. 1996); Commonwealth v. Spence, 627 A.2d 1176, 1181 n.4 (Pa. 1993). "The term 'excludable time' derives from Rule 1100(c) and refers to any period of time which is excludable from the calculation of determining whether a Rule 1100 violation has occurred." Hill, 736 A.2d at 584. Rule 1100(c) mandated as follows:
(c) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant's arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or the defendant's attorney;
(ii) any continuance granted at the request of the defendant or the defendant's attorney.
We find no abuse of discretion in the trial court's ruling.
The complaint charging appellant with his wife's murder was filed on November 14, 1994, and his jury trial commenced on April 5, 1999, 1,603 days later. From that time period, appellant concedes that it is appropriate to exclude: (1) the 966 days from October 5, 1995 through May 27, 1999, during which the Commonwealth's pre-trial appeal of the trial court's ruling on appellant's motion in limine was litigated (this 966 days includes the period during which appellant's petition for allowance of appeal was pending in this Court following the Superior Court's ruling in the Commonwealth's favor); and (2) the 63 days between February 1, 1999 and the date trial ultimately commenced, April 5, 1999, because appellant had requested that the February 1 trial date be rescheduled. Excluding these two periods leaves 574 days between the filing of the complaint and the commencement of appellant's trial.
Appellant takes issue with the trial court's exclusion of two other large blocks of time:
(1) the 147 days from May 1, 1995 to September 25, 1995, occasioned by a defense request for a postponement; and (2) the 148 days from May 27, 1998, when this Court denied his allocatur petition following the Commonwealth's successful pre-trial appeal, and October 22, 1998, when appellant was returned from North Carolina to Pennsylvania for trial.
As to the first period, appellant argues that the trial court erred in excluding this period from the Rule 1100 calculation because it was the Commonwealth's lack of due diligence in providing him with discovery which occasioned his postponement request. Invoking Rule 1100(c)(2), the Commonwealth counters by noting that, on April 10, 1995, the same date that appellant requested the continuance, he explicitly waived his Rule 1100 rights both in a record colloquy and a written colloquy. Both waiver colloquies noted that the next trial listing was September 25, 1995. Moreover, the written waiver explicitly noted that this time was excludable time under Rule 1100. Appellant inexplicably does not acknowledge the existence of the explicit waivers, much less does he argue that the waivers were deficient in some fashion. Under the plain language of Rule 1100(c)(2), this
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