No. 1499 October Term, 1976, Appeal from the Order dated April 13, 1976, of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 5325 of the October Term, 1975.
Eric J. Cox, Assistant District Attorney, Conshohocken, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellant.
Norton A. Freedman, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 251 Pa. Super. Page 195]
This is an appeal by the Commonwealth of an order by the court below denying the Commonwealth's application for an extension of time for commencement of trial and discharging the defendant. For the following reasons, we vacate the order of the court below and remand the case to the lower court.
[ 251 Pa. Super. Page 196]
The defendant was charged with various offenses by a complaint filed on October 6, 1975. Under the mandate of Pa.R.Crim.P. 1100(a)(2),*fn1 the Commonwealth was required to bring the defendant to trial by April 3, 1976. On April 2, 1976, the Commonwealth, pursuant to Pa.R.Crim.P. 1100(c),*fn2 applied to the court below for an extension of time for commencement of trial. The Commonwealth predicated its request for a time extension solely upon a claim that despite its due diligence the Commonwealth was prevented from bringing the defendant to trial within the prescribed period because of the extensive trial schedule of the lower court.*fn3 Specifically, the Commonwealth alleged that: "It would have been a useless act to list this case prior to this time because of the case load and the unavailability of a sufficient number of trial slots." Relying upon the opinion of this court in Commonwealth v. Shelton, 239 Pa. Super. 195, 361 A.2d 873 (1976), the lower court denied the Commonwealth's petition to extend, holding that an extension of time for commencement of trial may not be granted on the basis of delay attributable to the judiciary. We vacate the order of the court below.
[ 251 Pa. Super. Page 197]
In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Pennsylvania Supreme Court ruled that the Commonwealth may be granted an extension of time predicated upon judicial delay. The court, however, cautioned that such an extension may be granted only upon a record showing: ". . . (1) the 'due diligence' of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided." Id. 469 Pa. at 222, 364 A.2d at 1350-51. Although we do not require strict record compliance with the Mayfield requirements in cases, such as the instant case, which arise prior to the Mayfield decision, Commonwealth v. Lewis, 247 Pa. Super. 46, 371 A.2d 1318 (1977), the present record is not sufficient to enable us to determine the validity of the Commonwealth's assertion that the lower court could not timely hear the case because of an overcrowded docket.*fn4 We therefore remand this case to the court below to conduct an evidentiary hearing to determine the merits of the Commonwealth's petition to extend. This hearing is, of course, to be held in compliance with the notice requirements of Rule 1100(c). If the court below should find that the Commonwealth was prevented, despite its due diligence, from bringing the appellee to trial because of delay attributable to the judiciary, then the lower court should establish a trial date within 120 days from the date of its order granting appellant's petition to extend.
The order of the court below is vacated, and the case is remanded to the lower court for proceedings ...