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Commonwealth v. Boczkowski3/23/2004
time is excludable. Subtracting this 147-day excludable period from the Rule 100 calculation leaves 427 days.
Turning to the second disputed period, by the time this Court entered its order on May 27, 1998 denying appellant's allocatur petition following the Superior Court's ruling on the Commonwealth's appeal of the motion in limine, appellant had been tried, convicted, and sentenced to life imprisonment in North Carolina for the 1990 murder of his first wife. On August 3, 1998, the Commonwealth requested temporary custody of appellant from North Carolina authorities pursuant to the Interstate Agreement on Detainers (IAD), 42 Pa.C.S. § 9101 et seq., in order to try him for the murder sub judice. Appellant, however, refused to sign the waiver which would have permitted his immediate return for trial pursuant to the IAD. Appellant eventually failed in his attempts to prevent the transfer in the North Carolina trial and appellate courts and he was ultimately returned to the Commonwealth on October 22, 1998. Appellant does not dispute that he was unavailable for trial in Pennsylvania during this period because he was incarcerated in North Carolina.
Appellant nevertheless argues that this time should not be deemed excludable for Rule 1100 purposes because his initial 1995 transfer to North Carolina for trial there was achieved by the Commonwealth in violation of a pending Pennsylvania court order which had stayed extradition to North Carolina pending disposition of the Pennsylvania murder charge.
The Commonwealth responds that the 148-day delay in appellant's return to Pennsylvania was occasioned solely by his refusal to sign an IAD waiver and his concomitant decision to fight his return to Pennsylvania in the North Carolina court system. The Commonwealth notes that it acted diligently in attempting to secure appellant's return and, thus, this period of appellant's unavailability was properly excluded under the plain terms of Rule 1100(c)(3)(i). With respect to appellant's claim that it secured his 1995 transfer to North Carolina in violation of the pending extradition order, the Commonwealth notes that the extradition circumstances changed dramatically once it took its pre-trial appeal of the ruling on appellant's motion in limine, since that appeal could possibly take years to resolve, and that its acquiescence in the transfer request made by North Carolina authorities ensured that the delay occasioned by its appeal would not impede appellant's right to a speedy trial in North Carolina. The Commonwealth deems it notable in this regard that appellant did not object at the time of his transfer to North Carolina, nor does he now suggest that there was a valid argument by which he could have successfully opposed extradition once the pre-trial appeal was taken. In light of all of these circumstances, the Commonwealth argues, the sanction of dismissal requested by appellant would be unreasonable.
Although we will discuss the Commonwealth's alleged violation of the initial extradition order in resolving appellant's penalty phase claim concerning the aggravating circumstance in this case, we need not address it to resolve the Rule 1100 issue. This is so because exclusion of this 148-day period is not necessary to determine that trial was held within the 365 days afforded under Rule 1100. As the Commonwealth accurately notes, appellant executed a second explicit, written waiver on November 23, 1998, waiving his Rule 1100 rights from that date until "April 5, 1999 + 60 days." Thus, it is not simply the 63-day period from February 1, 1999 to April 5, 1999 which was excludable after appellant was returned from North Carolina, but also the 70-day period from November 23, 1998 to Feb
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