Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County No. 1864 April Term, 1974.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Milton O. Moss, District Attorney, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Van der Voort, J., files a dissenting opinion.
[ 248 Pa. Super. Page 546]
The complaint in the instant case was filed on May 23, 1974. The Commonwealth was therefore required by Pa.R.Crim.P. 1100(a)(1)*fn1 to bring the appellant to trial within 270 days. Trial, however, commenced on April 29, 1975, well after the expiration of the mandatory period. The appellant thus contends that his right to a speedy trial under Rule 1100 was violated. We agree with this contention.
On February 3, 1975, the lower court granted the Commonwealth an extension of time predicated upon the Commonwealth's assertion that the appellant was "at large" and therefore unavailable for trial.*fn2 The lower court found
[ 248 Pa. Super. Page 547]
that the appellant could not be brought to trial within the prescribed period despite the due diligence of the Commonwealth. On March 21, 1975, however, the lower court rescinded its order due to the Commonwealth's admission that the appellant was not a fugitive, but was in fact incarcerated in the Montgomery County Prison, where he had been since August 27, 1974. Thus, the record clearly shows that the Commonwealth did not proceed with due diligence in bringing the appellant to trial and was not therefore entitled to an extension of time for trial. See Pa.R.Crim.P. 1100(c).*fn3
The Commonwealth contends that the delay in the instant case was attributable solely to the judiciary since the case could not be reached because of an overloaded court docket. Even though the Commonwealth may be granted an extension of time for trial because of judicial delay, e. g., Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Commonwealth must still demonstrate that trial could not be commenced within the prescribed period despite its due diligence. Pa.R.Crim.P. 1100(c). Here, the record conclusively establishes that internal disarray, irrespective of available courtroom space, prevented the Commonwealth from bringing the appellant to trial. Once we conclude from the record that the Commonwealth has not acted diligently, then we must dismiss the Commonwealth's petition to extend as invalid.
[ 248 Pa. Super. Page 548]
The judgment of sentence is reversed, and the appellant ...