William T. Nicholas, Dist. Atty., Ross Weiss, 1st Asst. Dist. Atty., Eric J. Cox, Asst. Dist. Atty., for appellant.
Calvin S. Drayer, Jr., Asst. Public Defender, Chief, Appeals Div., Geo. B. Ditter, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy and Nix, JJ., concur in the result. Roberts, J., files a concurring opinion in which Manderino, J., joins. Packel, J., took no part in the decision of this case.
This appeal by the Commonwealth is from an order of the Superior Court which reversed the judgment of sentence and ordered that Joshua Coleman, appellee, be discharged pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure.
On September 24, 1974, Coleman was charged with burglary and theft. Prior to trial and the running of the 180-day period, the Commonwealth filed a petition for extension of time pursuant to Pa.R.Crim.P. 1100(c). After a hearing and argument on the matter, the court below granted the Commonwealth's petition. On April 22, 1975, a date within the extended time, appellee was tried by a judge and jury and was convicted of burglary. Post-verdict motions were denied, and appellee was sentenced to a prison term of six to twelve years.
Appellee then appealed to the Superior Court, alleging that the court below erred in granting the Commonwealth's petition for extension of time. Further, appellee argued that since the case was not tried within the 180-day period called for in the rule, he was entitled to a discharge. The Superior Court agreed with appellee, and on June 30, 1976, the court ordered that appellee be discharged. Commonwealth v. Coleman, 241 Pa. Super. 450, 361 A.2d 870 (1976). The Commonwealth filed a petition for allowance of appeal, which we granted.
The Commonwealth argues that the Superior Court erred in discharging appellee. The facts are as follows. A criminal complaint charging appellee with burglary and theft was issued on September 24, 1974. The case was listed for trial on January 27, 1975. While the Commonwealth was prepared to proceed, appellee requested a continuance, which the court granted for an unspecified period of time. The case was rescheduled in accordance with the normal Montgomery County procedure, which the trial court described as follows:
". . . Since calendar control is under the direct supervision and control of the Board of Judges of this County, we may take judicial notice of the manner in which our Court Administrator, under our direction, schedules criminal matters. The next criminal session scheduled after the session during which the continuance was granted commenced February 24, 1975, and was a 3 week session. The next succeeding criminal session commenced April 14, 1975, also a 3 week session. Taking into consideration the availability of judicial personnel, the Court sets the number of cases to be listed for each three week segment of criminal court. The Court administrator then schedules specific cases at least 30 days prior to the first date of the criminal session, so that attorneys have ample notice, and sufficient time is allowed for subpoenaing witnesses. As a practical matter, it is thus not possible to superimpose upon an already prepared list, those cases which are continued from a current list. Instead, as happened here, continued cases are scheduled for the second session thereafter. . . ."
As the original 180-day period was up on March 24, 1975, and appellee's trial was listed for April 22, 1975, the Commonwealth, on March 12, petitioned for and received an extension of time until April 28, 1975.
After conviction, Coleman filed post-verdict motions alleging, inter alia, that the court erred in granting the Commonwealth's petition for extension of time. The trial court did not specifically answer this question; rather, the court held that the entire delay between January 27, 1975 and April 22, 1975, was caused by appellee's requested continuance. After subtracting thirty days, as required by Pa.R.Crim.P. 1100(d)(2), the court found 55 days of delay attributable to appellee and thus held that appellee was tried within the required time.
The Superior Court reversed. After rejecting the trial court's finding that 55 days of the delay were attributable to appellee, the Superior Court stated:
". . . It was the duty of the Court Administrator of Montgomery County, under the supervision of the Board of Judges, to schedule appellant's trial within the period prescribed by Rule 1100. If the trial could not be scheduled within the period because of the manner in which Montgomery County provides sessions for criminal trials, it was incumbent upon Montgomery County to change its procedure. To hold otherwise would emasculate the Rule. Therefore, the period between the date the continuance was granted and the date the trial commenced cannot be charged against appellant." Commonwealth v. Coleman, supra, 241 Pa. Super. at 454, 361 A.2d at 872.
The Commonwealth first argues that the trial court was correct in attributing 55 days of the delay to appellee. Pa.R.Crim.P. 1100(d) provides:
"In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the ...