Vincent M. Dadamo, Elliott D. Goldberg, Asst. Dist. Attys., Joan D. Lasensky, Berwyn, for appellant.
John R. Merrick, Public Defender, J. Graham Andes, Asst. Public Defender, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion.
C. Alton Wade was convicted by a jury in Chester County of receiving stolen goods. Post-verdict motions were denied and judgment of sentence imposed. Wade appealed to the Superior Court which reversed the judgment of sentence and ordered Wade discharged. We granted the Commonwealth's petition for allowance of appeal.
Prior to trial, Wade filed an application to dismiss the charges alleging the trial had not commenced within the time period permitted under Pa.R.Crim.P. 1100, Pennsylvania Rules of Criminal Procedure. The motion was denied by the trial court. The Superior Court reversed ruling Wade's motion to dismiss should have been granted. We affirm.
The criminal complaint was filed against Wade on October 3, 1973, and trial commenced on September 10, 1974.*fn1 Thus, three hundred and forty-two (342) days lapsed between the filing of the complaint and commencement of trial.*fn2
Pa.R.Crim.P. 1100(a)(1), applicable instantly, mandated that trial commence "no later than two hundred seventy (270) days from the date on which the complaint was filed."
"Thus, all of the delay beyond the two hundred and seventy (270) day mandatory period '. . . must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of the rule, [Pa.R.Crim.P. 1100(c)], if the Commonwealth is to prevail.'"
Commonwealth v. Shelton, 469 Pa. 8, 14, 364 A.2d 694, 697 (1976) quoting from Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976).
Since the Commonwealth did not seek an extension pursuant to section (c) of Rule 1100, it was obliged to establish by a preponderance of the evidence that seventy-two (72) days should have been excluded from the computation of the permissible time pursuant to section (d). Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, since the trial court determined the Commonwealth met its burden, we consider for the purposes of this appeal the evidence presented by the Commonwealth and so much evidence presented by the defense as, fairly read in ...