No. 74 October Term, 1977 Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 1545, 1546, 1548 October Term, 1975
F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellant.
Benjamin Lerner, Public Defender, Philadelphia, for appellee.
Watkins, President Judge, 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. Jacobs, President Judge, files an opinion in support of reversal in which Cercone and Van der Voort, JJ., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 53]
The six Judges who decided this appeal being equally divided, the order is affirmed.
PRICE, Judge, in support of affirmance:
This is an appeal by the Commonwealth from a lower court order discharging appellee from custody. The lower court predicated its order upon a finding that appellee's right to a speedy trial under Pa.R.Crim.P. 1100 had been violated.*fn1 I would affirm the order of the lower court.
Appellee was charged with various offenses in a complaint dated September 22, 1975. After a preliminary hearing and arraignment, appellee, on November 14, 1975, filed a motion to suppress identification evidence. Although no hearing date was scheduled on appellee's motion, trial was listed to commence on December 4, 1975. Trial, however, was subsequently rescheduled on several occasions. On March 22, 1975, a hearing was begun on appellee's suppression motion. On that same day, the Commonwealth filed a form petition to extend the time for commencement of trial, alleging that "[d]espite due diligence, the Commonwealth will not be able to try this case within the Rule 1100 run date." The Commonwealth made no effort to support its claim of due diligence, averring only that "[a] specific account of the history of this case will be presented at time of argument."
[ 258 Pa. Super. Page 54]
On March 23, 1975, the suppression hearing was completed and appellee's motion was denied. Before trial could begin, however, the hearing judge disqualified himself at defense request and listed the case for trial before another judge on May 3, 1976. On March 30, 1976, the lower court, after a hearing, granted the Commonwealth an extension of time to commence trial until May 3, 1976. On May 3, appellee was tried and convicted of several charges, by the court below, sitting without a jury. Sentence was deferred pending psychiatric reports and post-verdict motions. On May 10, 1976, appellee filed a timely motion in arrest of judgment, averring that the lower court had improperly granted the Commonwealth an extension of time to commence trial. On August 31, 1976, the lower court granted appellee's motion and ordered appellee discharged. This appeal followed.
Pa.R.Crim.P. 1100(a)(2) mandates 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." Under Pa.R.Crim.P. 1100(c),*fn2 however, the Commonwealth may be granted an extension of time for trial commencement if it can demonstrate on the record that it was unable to bring an accused to trial within the mandatory period despite its due diligence. Here, ...