Appeal From Judgment of Sentence of Judge Wilson Bucher, Dated July 3, 1975, in the Court of Common Pleas, Criminal, County of Lancaster at No. 1469, 1974. No. 1700 October Term, 1975.
Wayne G. Hummer, Jr., and Lombardo & Hummer, Lancaster, for defendant-appellant.
Charles A. Achey, Jr., Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Price and Spaeth, JJ., join. Price, J., files a dissenting opinion in which Spaeth, J., joins.
[ 245 Pa. Super. Page 564]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of the County of Lancaster. Appellant, Richard A. Mitchell claims that he was denied his right to a speedy trial in that he was not brought to trial within 180 days from the date on which the criminal complaint was filed against him, thus violating Pa.R.Crim.P. 1100(a) (2).*fn1
A written complaint was filed against appellant on July 15, 1974, charging him with burglary and theft by unlawful taking. The 180 days would normally have run on January 11, 1975. On November 25, 1974, the Commonwealth filed a petition for an extension of time for commencing trial pursuant to Pa.R.Crim.P. 1100(c).*fn2 A hearing on the Commonwealth's petition was held on November 29, 1974, and the appellant, although notified, did not appear. On January 7, 1975, the lower court granted the Commonwealth's petition and extended the date for commencement of trial 120 days from January 7, 1975, or until May 7, 1975. On January 16, 1975, appellant filed a petition pursuant to Pa.R.Crim.P. 1100(f)*fn3 alleging
[ 245 Pa. Super. Page 565]
that Rule 1100 of the Pennsylvania Rules of Criminal Procedure had been violated by the delay in the commencement of trial. Said petition was denied. On March 26, 1975, appellant renewed his application to dismiss, the lower court denied it and the matter proceeded to trial that same day and a jury verdict of guilty was returned also on the same day, March 26, 1975. In light of the fact that the trial was held within the 120 day extension granted on January 7, 1975, the seminal question in this case is whether, on January 7, the court below erred in granting the Commonwealth's petition for extension of time by extending the time for trial by 120 days from January 7, 1975.*fn4 We hold that the lower court did not err because we find that the delay in bringing the case to trial is within that type of "judicial delay" which our Supreme Court recently held could justify the granting of a petition for extension of time pursuant to Rule 1100(c), Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).
Any application by the Commonwealth pursuant to Rule 1100(c) must be filed prior to the expiration of the 180 day period. Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976). In the instant case, the application was filed on November 25, 1975, approximately six weeks before the end of the 180 day period. Therefore, procedurally, the Commonwealth filed a timely petition for extension of time.
Subsection c of Rule 1100 provides for extensions of the mandatory period where despite due diligence by
[ 245 Pa. Super. Page 566]
the Commonwealth, trial cannot be commenced within the 180 day mandatory period provided by the Rule. In analyzing the Commonwealth's petition for extension pursuant to Rule 1100(c) we find that the only reason given in requesting the extension was that the case had not been received by the court below until August 19, 1975 and that the docket had closed for presentation of case to the September Grand Jury of Lancaster County. Appellant admits that since Lancaster County did not have a scheduled criminal court term for the commencement of trial until January 13, 1975 it was inevitable that, without an extension, the 180 day rule would run and the charges would be dismissed. Anticipating this problem the district attorney filed for his extension alleging that it would be impossible for the district attorney's office to prosecute appellant within the 180 day period despite due diligence on the part of the prosecution.
The reason the case had not been returned before the docket was closed was due to the fact that the preliminary hearing, which was originally scheduled for July 22, 1974, was not held until August 13, 1974. This was in violation of Pa.R.Crim.P. 140(f)(1) which provides that a preliminary hearing should be held no later than ten days after preliminary arraignment.*fn5 However, it was not due to any lack of diligence on the part of the prosecutor but rather, it was due to a continuance requested by the Justice of the Peace.*fn6
In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), our Supreme Court reversed the decision of this Court and noted that:
"The Superior Court, concluding that rule 1100 was intended to promote prompt action by the courts as well as by the prosecution, held that delays attributable to court ...