where accused appears for court proceeding without counsel and without waiving his right to counsel, the period of delay is excludable because the accused is unavailable for trial
How later courts described this case
- where accused appears for court proceeding without counsel and without waiving his right to counsel, the period of delay is excludable because the accused is unavailable for trial
- where a defendant who has not waived his right to counsel is unrepresented at any stage in the proceeding, any delay caused thereby is excludable time
Written by the judges who cited it.
The opinion
ZAPPALA, Justice,
dissenting.
The majority of this Court has once again embarked upon a path of abandoning one of our own rules of court. Rule 1100 was promulgated to insure to the accused his Sixth Amendment rights of a speedy trial. Without digressing into a discussion of the abuse from which this right evolved, it suffices to say that this Court adopted Rule 1100 as a means of alleviating a subjective approach to the problem of a speedy trial. In the Rule itself, we provided not only safeguards to the accused, but the means by which the Commonwealth can proceed when such delays are caused by the accused. These exceptions are embodied in Section *487 (d) of the Rule and are limited to those instances in which the delay is caused either by the failure of the accused or his attorney to appear at the trial, or by the accused petitioning the court for a continuance.
Contrary to what the majority states today, Commonwealth v. Millhouse, 470 Pa. 512 , 368 A.2d 1273 (1977), is quite distinguishable from this appeal. In Millhouse , the defendant undertook a course of numerous delays calculated to stall the judicial process. In so doing, the defendant did actually delay the judicial proceedings, which is the critical factor in evaluating a speedy trial claim. We stated in Millhouse:
“The actual ‘period of delay’ at any stage of the proceedings attributable to the ‘unavailability of the defendant or his attorney’ is an automatic exclusion from the time limits of either Pa.R.Crim.P. 1100(a)(1) — 270-day rule or (a)(3) — 180-day rule (citation omitted).”
Millhouse, 470 Pa. at 517 , 368 A.2d at 1276 .
Furthermore, we stated:
“We are of the opinion that a defendant who has not waived his right to counsel is ‘unavailable’ when that defendant appears for proceedings in connection with his case without defense counsel and such defendant is financially capable of retaining counsel. If the ‘unavailability’ results in an actual delay in the proceedings, that delay is automatically excluded...”
Millhouse, 470 Pa. at 517 , 368 A.2d at 1276 .
In Millhouse , we did not exclude the entire period for which the defendant was unrepresented by trial counsel, but only that period during which the trial would have proceeded but for the defendant’s dilatory tactics. Mr. Justice Nix in his dissent in Commonwealth v. Bussey, 486 Pa. 221, 233 , 404 A.2d 1309, 1316 (1979), correctly characterized the essence of Millhouse , "... the defendant purposefully abused the judicial system by causing a four-month delay through his dilatory efforts to retain private counsel.” Appearing at trial without counsel even though financially capable of doing so is not per se unavailable if the defendant refuses *488 to waive his right to be represented by an attorney. Millhouse requires that the unavailability results in actual delay. Today, this Court appears to be adopting such a per se rule notwithstanding that Millhouse required actual delay. 1
This record clearly establishes that the Appellee undertook no action to delay judicial proceedings. In fact, he is a' victim of judicial delay. While it is true that the Appellee failed to be represented by an attorney on May 30, it is also true that the Commonwealth had approximately 21/2 months to commence the trial. The majority finds support for its decision in the fact that the Appellee failed to respond or appear at a hearing to show cause why the Commonwealth’s petition for extension should not be granted. Not only did the court fail to enter an order on this petition, the court also failed to enter an order requiring the Appellee to appear at the June 14 hearing on the Commonwealth’s motion. Without such an order, the Appellee could not appear at the hearing as he was incarcerated, having been unable to secure bond for his release. Therefore, it is unfair and unjust to punish the Appellee for failing to appear on that date.
Notwithstanding the Commonwealth’s failure to pursue this trial, it is evidently clear, at least to this member of the Court, that the real injustice lies with the lower court. To refuse to hold a routine criminal docket matter during the summer months when it is apparent that it would alleviate situations such as this is appalling.
It is inherently unfair to hold an accused responsible for a delay which he did not cause. There is no indication on the record that the Commonwealth intended to pursue a criminal trial during the summer months, nor does the record indicate that the court ever attempted to set a trial for the Appellee during the summer months. The record is notice *489 ably void of any evidence demonstrating to what extent the docket of the Court of Common Pleas was filled. Since it is incumbent upon the Commonwealth to justify the reasons for delay in proceeding and the Commonwealth has failed to sustain the burden, I would affirm the order of the Superior Court and discharge the Appellee.
ROBERTS, C.J., joins in this dissenting opinion.
. I find it rather inconsistent that this Court is adopting a per se rule in this instance after having recently overruled the per se interested adult rule in Commonwealth v. Christmas, 502 Pa. 218 , 465 A.2d 989 (1983), and the six hour arraignment rule in Commonwealth v. Keasley, 501 Pa. 461 , 462 A.2d 216 (1983).