Appeal from Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 3640, October Term, 1974. No. 1358 October Term, 1975.
Calvin S. Drayer, Jr., Asst. Public Defender, Norristown, for appellant.
Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a concurring opinion. Watkins, President Judge, and Jacobs and Van der Voort, JJ., dissent.
[ 241 Pa. Super. Page 451]
Appellant contends that the lower court erred in denying his petition to dismiss filed pursuant to Rule 1100 (f), Pa.R.Crim.P.
The criminal complaint in the instant case was filed on September 24, 1974. Under Rule 1100(a)(2), therefore, the Commonwealth had 180 days, or until March 24, 1975, to commence trial. The case was originally listed for trial on January 27, 1975, but on that date, defense counsel requested and was granted a continuance. The continuance was not, however, granted for a specified period of time. The case was rescheduled in accordance with the procedure normally employed in Montgomery County. This procedure was described in the opinion of the lower court:
"Since calendar control is under the direct supervision and control of the Board of Judges of this County, we
[ 241 Pa. Super. Page 452]
may take judicial notice of the manner in which our Court Administrator, under our direction, schedules criminal matters. The next criminal session scheduled after the session during which the continuance was granted commenced February 24, 1975, and was a 3 week session. The next succeeding criminal session commenced April 14, 1975, also a 3 week session. Taking into consideration the availability of judicial personnel, the Court sets the number of cases to be listed for each three week segment of criminal court. The Court administrator then schedules specific cases at least 30 days prior to the first date of the criminal session, so that attorneys have ample notice, and sufficient time is allowed for subpoenaing witnesses. As a practical matter, it is thus not possible to superimpose upon an already prepared list, those cases which are continued from a current list. Instead, as happened here, continued cases are scheduled for the second session thereafter." Trial was commenced on April 22, 1975, approximately thirty days after the expiration of the period, and eighty-five days after the grant of the continuance.
Rule 1100(d)(2) provides that "there shall be excluded [from the 180-day period] such period of delay at any stage of the proceedings as results from: . . . (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded." The lower court held that the entire delay was "inevitably caused" by the continuance requested by appellant. Because 85 days had elapsed between the date the continuance was granted and the date the trial commenced, the court charged 55 days' delay to appellant. Thus, the court held that appellant was tried within the period.
Recently, we summarized the history and purposes of the Rule: "'The history of the right to a speedy trial and its reception in this ...