John F. Wagner, Jr., Uniontown, for appellant.
Lawrence D. McDaniel, Conrad B. Capuzzi, Dist. Atty., William M. Radcliffe, Asst. Dist. Atty., Uniontown, for Commonwealth.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case.
Following a jury trial, appellant was convicted of voluntary manslaughter for the slaying of his wife. A sentence of from four years to twelve years was subsequently imposed. Appellant now appeals that judgment of sentence.
The sole issue raised concerns the applicability to the facts of this case of our rule of criminal procedure
governing the time within which a defendant must be tried or retried, Pa.R.Cr.P. 1100. Specifically, appellant contends that paragraph (e)*fn1 of that rule was not complied with, and that in consequence his judgment of sentence should be reversed and he should be discharged. For the reasons hereinafter stated, we agree.
Appellant was originally convicted of murder in the second degree for the killing of his wife. On appeal from the judgment of sentence following that conviction, this Court on November 26, 1973, ordered the judgment reversed and granted appellant a new trial. Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973). On February 26, 1974, 92 days after our decision, appellant petitioned the court of common pleas to dismiss the charges against him, because of non-compliance with Rule 1100(e).*fn2 On the same day the Commonwealth filed a petition for extension of time pursuant to Rule 1100(c),*fn3 nunc pro tunc. Two days later, the trial court rejected appellant's petition to dismiss and granted the petition of the Commonwealth. Appellant was then subsequently retried on April 19, 1974, with the result indicated above.
It is apparent that neither the Commonwealth's petition for an extension of time nor the actual commencement of trial was within the time limits prescribed by
Rule 1100. In our view, this is dispositive. The time limits set forth in the rule are definite; there is no provision for the granting of any ...