Appeal of Judgment of Sentence from the Court of Common Pleas, Criminal Division, Blair County (C.A. Nos. 896, 897, 914, 917 of 1974). No. 1297 October Term, 1975.
Oliver E. Mattas, Jr., Asst. Public Defender, Hollidaysburg, for appellant.
Thomas G. Peoples, Jr., Asst. Dist. Atty., Hollidaysburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Price, J., files a dissenting opinion in which Van der Voort, J., joins.
[ 241 Pa. Super. Page 299]
In this appeal appellant contends that he was not brought to trial within 180 days and accordingly, pursuant to Pa.R.Crim.P., Rule 1100, the charges against him should be dismissed. Complaints were issued on July 7, 8, 17 and 23, 1974 charging appellant with possession of an offensive weapon, altering or obliterating marks of identification on a firearm, carrying a firearm without a license and violating the Controlled Substance, Drug, Device and Cosmetic Act. Realizing that it would not be able to bring appellant to trial on these charges within 180 days, the Commonwealth filed a timely petition pursuant to Rule 1100(c) seeking an extension of the time within which to try appellant. A hearing was held on January 8, 1975, and the court granted an extension until February 7, 1975, at which time appellant was to go to trial on all charges. On February 7, 1975, appellant orally moved for a suppression of evidence hearing in the drug case. A full suppression hearing was held at this time, after which the suppression judge
[ 241 Pa. Super. Page 300]
reserved his decision and ordered the case to be tried on March 3, 1975. Appellant was tried by a jury and found guilty of the drug violation on March 3, 1975. Post-verdict motions were argued and denied, and appellant was sentenced on April 3, 1975. Also on April 3, 1975, appellant pleaded guilty and was sentenced on the remaining three charges. At that time appellant reserved the right to raise on appeal the Rule 1100 issue as to the charges to which he pleaded guilty.*fn1
Appellant argues that the lower court abused its discretion in granting the Commonwealth extension of time pursuant to Rule 1100(c) because the Commonwealth failed to show "due diligence." Rule 1100(c) states: "Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth." At the January 8, 1975 hearing the Commonwealth pointed out that indictments on the charges in question were obtained at the first available Grand Jury on October 2, 1974 and that it was impossible to bring appellant to trial within 180 days because each session of jury trials between October 2, 1974, and January 2, 1975, were filled with cases which pre-dated those of appellant. While we have sympathy for the Commonwealth's problem we have clearly stated
[ 241 Pa. Super. Page 301]
in Commonwealth v. Shelton, Pa. Super. , , A.2d (Filed: March 29, 1976), that "Rule 1100 . . . precludes an extension of the prescribed time period predicated upon judicial delay." See also Commonwealth v. Mayfield, Pa. Super. , A.2d (Filed: March 29, 1976). Accordingly it was error for the lower court to grant the extension, and appellant must be discharged.
Judgment of sentence reversed and appellant ...