Michael D. Marino, Joseph W. Lonergan, Norristown, for appellant.
William T. Nicholas, Dist. Atty., Eric J. Cox, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., took no part in the decision of this case. Pomeroy, J., concurs in the result.
Appellant, Leslie Hale Smith, was tried by a judge and jury and was convicted of receiving stolen property, criminal
conspiracy, possession of instruments of crime, possession of a weapon, possession of an offensive weapon, violation of the Uniform Firearms Act, escape, resisting arrest, false report to law enforcement authorities, and unauthorized use of a motor vehicle. Post-verdict motions were denied and judgments of sentence were imposed. The Superior Court affirmed. Commonwealth v. Smith, 240 Pa. Super. 212, 361 A.2d 862 (1976). Appellant filed a petition for allowance of appeal, which we granted.
Appellant raises one issue on this appeal. He argued that the trial court erred in granting the Commonwealth's petition for extension of time pursuant to Pennsylvania Rule of Criminal Procedure 1100(c). The facts are as follows.
Appellant and two co-defendants, Robert Leary and Robert Davies, were arrested on June 16, 1974. Under the applicable Rules of Criminal Procedure, appellant was entitled to be tried within 270 days, or by March 13, 1975.*fn1 The case was first listed for trial on November 18, 1974, but a continuance at the co-defendants' request was granted until December 4, 1974. Appellant did not join in this request. The case was then listed for December 4, 1974, January 27, 1975, and March 3, 1975, but trial was not commenced at any of these times. No explanation was offered for missing the December date. A suppression motion was decided on January 31. Because appellant demanded a jury trial and the criminal trial week was almost over, the case was not called, since it was not possible to hold a jury over to the next week. The case was called for March 3, 1975, but was not reached because the prosecutor assigned to the case was involved in another trial. The case was then called on March 12, 1975, but the January problem recurred, i. e., the inability to hold a jury over after a criminal session has been completed. Since March 12 was the 269th day, the Commonwealth petitioned for and was granted an extension of time until April 28, 1975. On April 15, appellant filed a motion to
dismiss the charges pursuant to Rule 1100, but that motion was denied. Trial ...