Nos. 2079 and 2080 October Term, 1976, Consolidated Appeals from the Orders of the Court of Common Pleas, Trial Division, Criminal Section Philadelphia County, at Nos. 840-855, 857, 858, September Term, 1975.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellant.
Michael I. Luber, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result. Hoffman, J., files a dissenting opinion. Spaeth, J., notes his dissent.
[ 251 Pa. Super. Page 479]
The Commonwealth of Pennsylvania has appealed from two Orders of Court of the Court of Common Pleas of Philadelphia County by which the defendant following convictions was discharged pursuant to Pa.R.Crim.P. 1100.*fn1 The relevant facts of each of the two cases being the same, the Commonwealth was granted permission to consolidate the appeals.
On November 29, 1974, the defendant and two co-defendants entered a jewelry store in Philadelphia and robbed the employees of various items of jewelry and cash. The police apprehended the three individuals in the store and discovered that the defendant was carrying a firearm. A complaint*fn2 was filed against the defendant on November 30, 1974 for the jewelry store robbery and on that same date a second complaint*fn3 was filed against him for the robbery of a
[ 251 Pa. Super. Page 480]
Gino's Restaurant that occurred on November 24, 1974. Preliminary hearings for the two offenses were set for December 6, 1974. On that date, the preliminary hearings were continued to December 17, 1974. However, there appears to be a discrepancy on the record as to why the hearings were continued. The Municipal Court Hearing Sheet indicates that the cases were continued due to the absence of defense counsel. The Municipal Court transcript indicates that the co-defendant failed to appear. On December 17, 1974, the date of the continued preliminary hearings, a bench warrant was issued for the defendant because he failed to appear. The Commonwealth alleges that it was not until March 11, 1975 that it discovered that the defendant was lodged in the Delaware County Prison at Broad Meadows on a Delaware County robbery charge. The preliminary hearings were then scheduled for May 27, 1975. On that date, a voluntary defender was appointed; however, no judge was available and the record indicates that the defendant was incarcerated in the Lewisburg Federal Penitentiary. Apparently the information regarding the defendant's incarceration in Lewisburg was erroneous, but no explanation of how this information came to pass is provided for by either party or the record. The case was then continued from May 27, 1975 to June 5, 1975, at which time it was continued again to July 3, 1975. The reason for this continuation was that it was the belief that the defendant was still in the Lewisburg Prison. On July 2, 1975, the case was continued to July 7, 1975 due to the failure of a Commonwealth witness to appear. July 7, 1975, brought
[ 251 Pa. Super. Page 481]
another continuation, the reason for which was that the judge assigned to hear the case declined to do so because there was no transcript of the prior proceedings. It was then referred to the court administrator who listed the case for August 18, 1975. On that date the case was continued because all parties persisted in the mistaken belief that the defendant was still in the Lewisburg Prison. On August 26, 1975, the district attorney filed an application for an order extending the time for commencement of trial pursuant to Rule 1100(c)*fn4 of the Pennsylvania Rules of Criminal Procedure. A hearing on the Commonwealth's application was scheduled for September 2, 1975. However, on that date the hearing was continued in order to give newly appointed defense counsel*fn5 an opportunity to answer the application. The defendant's preliminary hearing was finally held on September 4, 1975, whereafter he was held for court. On September 16, 1975, the hearing on the Commonwealth's application for an extension of time in which to bring the defendant to trial was continued to September 23, 1975 because the district attorney was unavailable. Following the hearing on September 23, 1975, the court granted the Commonwealth an extension of time to October 12, 1975.*fn6
[ 251 Pa. Super. Page 482]
Both robbery cases were listed for trial on October 9, 1975; however, the Commonwealth moved to trial on the jewelry store robbery and petitioned the court to extend the time for trial on the Gino's Restaurant robbery until the completion of the jewelry store robbery case. This request was granted by the lower court. At no time prior to either trial did the ...