Opinion
Argued April 14, 1978.
Decided November 17, 1978.
Appeal from the Court of Common Pleas, Criminal Division, of Fayette County, at Criminal Action No. 745 of 1975; Munson, Judge
Simon B. John, Assistant Public Defender, with him Thomas P. Ruane, Jr., Public Defender, Uniontown, for appellant.
Gerald R. Solomon, District Attorney, Uniontown, submitted a brief for Commonwealth, appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
OPINION
Judgment of sentence as to criminal conspiracy and theft by receiving stolen property is vacated; the conviction and judgment of sentence as to unlawful taking or disposition is affirmed.
SPAETH, J., files a dissenting statement in which PRICE, J., joins.
HOFFMAN, J., did not participate in the consideration or decision of this case.
Since 41 days elapsed between the complaint and appellant's first escape, and 159 days between his return to Allegheny County Prison and the motion to dismiss, we should order appellant discharged. See Commonwealth v. Cunningham, 247 Pa. Super. 302, 305 id., n. 1, 372 A.2d 473, 474 id. n. 1 (1976). Cf. Commonwealth v. Porter, 251 Pa. Super. 346, 350-351 id. n. 2, 380 A.2d 812, 814 id. n. 2 (1977) (defendant's incarceration in county prison if unknown could have been determined by due diligence); Commonwealth v. Woodson, 248 Pa. Super. 545, 547, 375 A.2d 375, 375-76 (1977) (no due diligence shown where bench warrant issued for defendant who was incarcerated in county prison). But cf. Commonwealth v. Clark, 248 Pa. Super. 184, 188 id. n. 5, 374 A.2d 1380, 1382 id. n. 5 (1977) (defendant who was in county prison may have been unavailable where he received notice of scheduled trial but did not inform anyone of his need to appear).
PRICE, J., joins in this dissenting statement.