Nos. 1000, 1001, 1002, April Term, 1976, Appeals from the Order dated July 16, 1976, of the Court of Common Pleas of Washington County, Criminal Division at Nos. 997, 999, 998 of 1974.
Fred J. Sentner, Assistant District Attorney, Canonsburg, with him Jess D. Costa, District Attorney, Bentleyville, for Commonwealth, appellant.
George B. Stegenga, Washington, for appellees at Nos. 1000 and 1002.
Roger J. Ecker, Washington, for appellee at No. 1001.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Watkins, former President Judge and Van der Voort, J., did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 155]
This appeal by the Commonwealth is from the lower court's order dismissing charges against three defendants because of the prosecution's failure to comply with Pa.R.Crim.P. 1100. Because we find that trial did not commence within the rule's mandatory time period, we affirm.
On November 21, 1974, appellees were arrested and criminal complaints charging them with burglary*fn1 were lodged against them. Appellees filed timely motions for suppression and applications to quash the indictments. On March 17, 1975, President Judge Charles G. Sweet ordered that a hearing on these matters be scheduled "for when same is called for trial." Then, on March 20, 1975, Judge Sweet set the hearing date for March 25. The hearing, continued on March 26, was abruptly terminated when Judge Sweet left the bench during cross-examination of the Commonwealth's first witness. Apparently displeased with defense counsel's persistent and sometimes irrelevant questions, Judge Sweet declared, "Put your pen down Sharon, I'm going to discontinue these proceedings." Nothing further transpired until
[ 257 Pa. Super. Page 156]
April 17, 1975, when the cases were transferred to Judge Hanna. On May 22, 1975, appellees filed applications to dismiss all charges for the Commonwealth's failure to comply with Pa.R.Crim.P. 1100(a)(2).*fn2 On May 27, 1975, Judge Hanna called the cases for trial.
The Commonwealth answered appellees' motions to dismiss by admitting that the 180 day period elapsed on May 20, 1975. The prosecution asserted, however, that the delay was attributable to the court, that the Commonwealth was at all times since March 25, 1975, prepared to proceed to trial, and that appellees' motions should be denied. The court denied appellees' motions and certified that there was involved a controlling question of law appealable to this court,*fn3 namely whether judicial delay would excuse the failure to comply with Rule 1100.*fn4 We quashed the appeal and remanded the case for trial. Commonwealth v. Griffin, 240 Pa. Super. 545, 367 A.2d 1102 (1976). Appellees subsequently filed with the lower court a petition for an evidentiary
[ 257 Pa. Super. Page 157]
hearing pursuant to Rule 1100 which was conducted on June 8, 1976. Finally, on July 16, 1976, Judge Gladden, finding that trial did not commence until May 27, 1975, after the expiration of the allowable 180 ...