Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Oct. T., 1974, No. 4541, in case of Commonwealth of Pennsylvania v. Robert King Mayfield.
Joseph A. Malloy, Jr., with him Perrin C. Hamilton, and Hamilton, Darmopray & Malloy, for appellant.
Jean B. Green and Donald J. Martin, in propriis personis, and Waters, Fleer, Cooper & Gallager, submitted a brief for amici curiae.
Stewart J. Greenleaf, Assistant District Attorney, with him Bert M. Goodman, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Jacobs, J. Watkins, P.j., and Van der Voort, J., join in this dissenting opinion.
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Appellant argues that the lower court erred by granting the Commonwealth an extension of time for commencement of trial pursuant to Pa.R.Crim.P. 1100(c).*fn1 The Commonwealth based its petition for a time extension upon a claim that trial could not be commenced within 180 days from the date the criminal complaint was filed against the appellant, as required by Pa.R.Crim.P. 1100(a)(2),*fn2 because of an overcrowded court docket. The Commonwealth further contends that it exercised the requisite due diligence in bringing the appellant to trial and that the Commonwealth should not be held responsible for any period of delay occasioned solely by the judiciary. In Commonwealth v. Shelton, 239 Pa. Superior Ct. 195, 203, 361 A.2d 873, 877 (1976), we refuted this contention, holding, inter alia, that "Rule
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. . . precludes an extension of the prescribed time period predicated upon judicial delay." Therefore, because the appellant's trial did not commence within the time period prescribed by Rule 1100(a)(2), we reverse the judgment of sentence and discharge the appellant.
Also, the record shows that the judges of the court below normally grant the Commonwealth an extension of time for commencement of trial unless the accused can show some prejudice. Although the lower court granted the Commonwealth's petition in this case solely upon a belief that the Commonwealth had exercised due diligence, we feel constrained to remark that prejudice to an accused is not a factor to be considered by the court in deciding whether an extension should be permitted under Rule 1100(c). Rule 1100(c) allows the lower court to grant the Commonwealth an extension of time only upon a finding that the Commonwealth exercised due diligence in bringing the case to trial. The rule does not relax the requirement by allowing the court to extend the time if an accused would not suffer any prejudice as a result of such extension. Prejudice is simply not a factor in the application of the rule.
We reverse the judgment of sentence and discharge the appellant.
Judgment of sentence reversed and appellant ...