Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.
Henry S. Kenderdine, Jr., Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files an opinion in support of affirmance in which Jacobs, President Judge, and Cercone, J. join. Hoffman, J., files an opinion in support of reversal in which Spaeth, J., joins. Price, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 62]
The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.
[ 255 Pa. Super. Page 63]
OPINION IN SUPPORT OF AFFIRMANCE
Appeal is taken from judgment of sentence rendered following jury verdict of guilty to the charge of passing a bad check, the jury having returned not guilty to the additional charge of theft by deception. "Crimes Code", Act of 1972, Dec. 6, P.L. 1482, No. 334, 18 Pa. C.S. §§ 4105 and 3922 respectively.
The first claim raised before us is alleged error below in the court's refusal to dismiss the charges pursuant to Pa.R.Crim.P. 1100(d). The facts of record show that a criminal complaint was lodged on July 31, 1974, against our appellant, a resident of Wilmington, Delaware. On November 19, 1974, appellant appeared for preliminary arraignment and posted bond to assure his attendance at the preliminary hearing, held on January 31, 1975. On February 18, 1975, the Commonwealth filed a "petition for extension of time for commencing trial", averring that trial could not have commenced within 180 days following filing of the complaint, despite Commonwealth due diligence, for the reason that the appellant had been unavailable for a period of 110 days which period of time was excluded from the 180 days under Rule 1100(d)(1). This petition was served upon the appellant on March 3, 1975, by mail. Notice of a hearing on the Commonwealth's petition on March 13, 1975, was part of the papers sent to appellant.*fn1 Appellant did not appear at said hearing, the result of which was the granting of a ninety day extension for commencement of trial. A further matter of procedure pretrial was appellant's application to dismiss the charges for violation of Rule 1100(a)(2), which
[ 255 Pa. Super. Page 64]
application was dismissed on April 1, 1975, because time for trial had been extended. Trial was held May 28-29, 1975.
We note that the Commonwealth petition to extend time for trial is pursuant to Rule 1100(c). The petition went unchallenged by either an answer or appellant's appearance at hearing to offer contrary testimony; therefore, its statements are accepted as true. As such a 110 day period should be excluded under Rule 1100(d)(1), for the reason of defendant's unavailability. This period of time is automatically excluded, Commonwealth v. Martofel, 248 Pa. Super. 206, 375 A.2d 60 (1977). So excluding these days, we note that the petition of the Commonwealth was timely-filed. Its averment of due diligence must be ...