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COMMONWEALTH v. RAY (04/22/76)

decided: April 22, 1976.

COMMONWEALTH
v.
RAY, APPELLANT



Appeal from order of Court of Common Pleas of Montgomery County, Oct. T., 1974, Nos. 3802 and 3834, in case of Commonwealth of Pennsylvania v. William E. Ray.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, submitted a brief for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring and Dissenting Opinion by Van der Voort, J. Watkins, P.j., and Jacobs, J., join in this concurring and dissenting opinion.

Author: Price

[ 240 Pa. Super. Page 34]

This is an appeal*fn1 from an order of the Court of Common Pleas of Montgomery County granting the

[ 240 Pa. Super. Page 35]

Commonwealth an extension of time for commencing trial pursuant to Pa.R.Crim.P. 1100(c).*fn2 The Commonwealth predicated 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),*fn3 because of an overloaded court docket. The Commonwealth therefore 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. This contention is without merit.

In Commonwealth v. Shelton, 239 Pa. Superior Ct. 195, 361 A.2d 873 (1976), we conducted an extensive review of the purposes to be served by Rule 1100, holding, inter alia, that "Rule 1100 . . . precludes an extension of the prescribed time period predicated upon judicial delay." Id. at 203, 361 A.2d at 877. We find that the principles and holding enunciated in Shelton control the instant case. Therefore, because the appellant's trial did not commence within the time period prescribed by Rule 1100(a)(2), we reverse the order of the lower court and discharge the appellant.

Additionally, we note that we do not approve the methods employed by the Commonwealth in this case. It is clear that a procedure is developing concerning Rule

[ 240 Pa. Super. Page 361100]

whereby the Commonwealth attempts to secure an automatic extension of time under Rule 1100(c) through the use of a form petition. We believe that these form petitions not only frustrate the intent of Rule 1100, but also denigrate the procedures prescribed therein. We have seen no petition of this form type which attempts to establish the exercise of due diligence by the Commonwealth beyond the recitation of the words themselves. As such, they are defective.

Moreover, we have found that these form petitions are usually filed at the very last minute of the prescribed time period. And, normally, they are granted without a hearing, or a decision thereon is postponed until well-beyond the expiration of the prescribed time period. We believe that a petition for an extension of time pursuant to Rule 1100(c) must be conscientiously prepared, timely filed with notice to the defendant, and heard by the court below within a reasonable period of time. Because the circumstances of each particular case might vary substantially, we will not reduce to a time certain the time limit within which the lower court must dispose of the Commonwealth's application. However, the lower court should make every effort to dispose of the Commonwealth's petition prior to the expiration of the prescribed period. Any delay past this period must be ...


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