NO. 36 APRIL TERM, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Blair County, Criminal Division, at No. 353 of 1975.
Ralph T. Forr, Jr., Altoona, with him Donald E. Speice, Assistant Public Defender, Hollidaysburg, for appellant.
Thomas G. Peoples, Jr., Assistant District Attorney, Hollidaysburg, submitted a brief for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, files an opinion in support of affirmance in which Cercone and Van der Voort, JJ., join. Spaeth, J., files a dissenting opinion and Hoffman, J., joins in Part I of Spaeth's, J., opinion. Price, J., dissents and would discharge because appellant was not timely tried under Pa.R.Crim.P. 1100. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
On July 9, 1975, appellant Ted Steven Ehredt was convicted by a jury of receiving stolen property.*fn1 Motions for a new trial and in arrest of judgment were denied by the
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court below, and a sentence of six to twenty-two months imprisonment was imposed. Appellant questions the propriety of his conviction on this direct appeal, raising several allegations of error.*fn2 I would affirm the judgment of sentence.
Initially, appellant contends that the lower court erred in granting the Commonwealth's petition for extension of time under Pa.R.Crim.P. 1100(c). The facts relating to this claim are as follows: A criminal complaint was filed against appellant on January 9, 1975. Under the mandate of Pa.R.Crim.P. 1100(a)(2),*fn3 the Commonwealth was required to bring appellant to trial within 180 days. Trial was scheduled to commence on July 1, 1975, but was rescheduled on that date for July 9, without objection on anybody's part, because the courtroom to which it was assigned was being used. On July 7, 1975, one day before the 180 day period for commencement of trial was to expire, the Commonwealth petitioned for an extension of time. On July 8, 1975, appellant filed a petition to dismiss the charge with prejudice pursuant to Pa.R.Crim.P. 1100(f).*fn4 Argument on both petitions was held on July 9, 1975, after which the lower court granted the Commonwealth's petition to extend and denied appellant's petition to dismiss. Trial commenced on that date.
Pa.R.Crim.P. 1100(c) provides, in pertinent part, as follows:
At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the
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time for commencement of trial. . . . Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
Here, the Commonwealth's petition seeking a time extension was filed "prior to the expiration of the period for commencement of trial." Our inquiry does not end there, however; the timeliness of a petition to extend is not the sole measure of its validity. The question we still must decide is whether the Commonwealth showed that trial could not "be commenced within the prescribed period despite due diligence." I conclude that it did and, therefore, that the petition to extend was properly granted.
As noted above, the case would have gone to trial on July 1, 1975, but for the unavailability of the courtroom to which it was assigned. Trial was rescheduled for July 9, one day beyond the mandatory 180 day period. At the hearing held on its petition to extend, the Commonwealth did not contend that courtrooms were unavailable during the eight-day delay.*fn5 See Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). Rather, the Commonwealth predicated its request for a one-day extension solely upon a claim that "[s]everal Commonwealth witnesses indicated that although they were available on July 1, 1975, they would not be available on July 2 or 3 and that in fact the earliest day when the Commonwealth's witnesses would all again be available would be July 9, 1975." N. T. Extension Hearing at 2.
Although appellant argues to the contrary, this is not a situation where it simply was inconvenient for the Commonwealth to have the case tried within the required time. The Commonwealth sought an extension because its witnesses would not be available until July 9. This court has recognized
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that the unavailability of a Commonwealth witness may be a proper basis upon which to grant an extension of time. Commonwealth v. Brown, 252 Pa. Super. 365, 381 A.2d 961. Cf. Commonwealth v. Jenkins, 248 Pa. Super. 300, 375 A.2d 107 (1977); Commonwealth v. Mancuso, 247 Pa. Super. 245, 372 A.2d 444 (1977). I perceive no reason to hold otherwise in the instant case and, therefore, find no ...