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decided: April 28, 1978.



Frank J. Williams, Assistant District Attorney, West Chester, for Commonwealth, appellant.

Richard H. Anderson, Media, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files an opinion in support of affirmance in which Hoffman and Spaeth, JJ., join. An opinion in support of reversal is filed in which Jacobs, President Judge, Cercone and Van der Voort, JJ., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 255 Pa. Super. Page 68]

The six Judges who heard this case being equally divided, the order is affirmed.

[ 255 Pa. Super. Page 69]


PRICE, Judge:

On September 24, 1975, the trial judge, sitting without a jury, found the appellant guilty of burglary.*fn1 The appellant, alleging that his Pa.R.Crim.P. 1100 right to a speedy trial had been violated, filed a timely post-trial motion in arrest of judgment. After conducting a hearing on the motion, the court below granted the appellant's motion and arrested judgment. This appeal followed.

Pa.R.Crim.P. 1100(a)(2) provides that: "Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed." Instantly, the appellant was charged with various offenses by a complaint filed on December 20, 1974. Thus, under the precept of Rule 1100(a)(2), the Commonwealth had until June 18, 1975, to bring the appellant to trial. The appellant, however, was not brought to trial until September 24, 1975, 278 days after the filing of the criminal complaint against him.

In reviewing an alleged Rule 1100 violation, we recognize that all periods of delay beyond the prescribed period (180 days) "'. . . must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail.'" Commonwealth v. Shelton, 469 Pa. 8, 14, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O'Shea, 465 Pa. 491, 495, 350 A.2d 872, 874 (1976). The record herein shows that only twelve days can be excluded from the computation of the prescribed period under the provisions of Rule 1100(d).*fn2 The Commonwealth, however, argues that all further

[ 255 Pa. Super. Page 70]

    delay in trial commencement can be justified by two orders entered by the court below extending the mandatory period. The sole issue before us is whether or not the lower court properly granted the Commonwealth additional time within which to bring the appellant to trial.

Under the provisions of Pa.R.Crim.P. 1100(c), the Commonwealth should be granted an extension of time for commencement of trial if it can demonstrate on the record that trial could not be commenced within the prescribed period despite its due diligence. Specifically, the section provides that:

"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 time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. 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 petitioned the lower court to extend the time for trial commencement on June 16, 1975. The Commonwealth predicated its petition upon the following averred facts: (1) that the defendant had waived his Rule 1100 right to a speedy trial for a twelve day period during which his application for accelerated rehabilitative disposition was being considered; (2) "the defendant's case was not reached during the May Criminal Trial Term [when it had been listed for trial]; (3) On or about May 22, 1975, [defendant's counsel] advised the Court that his client waived his right to jury trial and requested to be tried by a Judge without jury; (4) A Non-jury Trial has been scheduled for July 21, 1975." The defendant filed an objection to the Commonwealth's petition in which he denied the Commonwealth

[ 255 Pa. Super. Page 71]

    exercised due diligence in bringing him to trial because ". . . no explanation has been provided by the Commonwealth why trial was not scheduled prior to the May Term or why trial could not have been scheduled earlier than July 21, 1975." The lower ...

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