No. 55 March Term, 1977, Appeal from the Judgment of Sentence, in Forma Pauperis, in the Court of Common Pleas, Criminal Division, at the County of York, Pennsylvania at No. 298 January Session, 1975.
John D. Finchbaugh, Assistant Public Defender, York, for appellant.
Donald L. Reihart, District Attorney, York, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Van der Voort, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 107]
In the instant appeal from his conviction for aggravated assault, for which he received a sentence of five to ten years imprisonment, appellant argues that he was denied his right to a speedy trial pursuant to Pa.R.Crim.P., Rule 1100.*fn1 We agree and will reverse.
On January 26, 1975, a written complaint was filed charging appellant with aggravated assault. Following his waiver of a preliminary hearing, a York County grand jury indicted appellant on that charge on April 22, 1975. By June of 1975 the Commonwealth realized that appellant could not be tried until the August session of criminal court because of a scheduling difficulty which could carry the case beyond the 180 days permitted for bringing appellant to trial. The last day of the August session was August 25, 1975. Pa.R.Crim.P., Rule 1100(a)(2). Hence, on June 12, 1975, the Commonwealth filed a timely petition for an extension of time pursuant to Rule 1100(c), alleging generally that the Commonwealth's backlog of cases prevented
[ 256 Pa. Super. Page 108]
appellant's case from reaching the grand jury prior to April 22, 1975, which in turn precluded appellant's case from going on trial earlier than August. The court granted the Commonwealth's petition.
During the August trial session the Commonwealth again encountered difficulty in bringing appellant to trial, this time because the Commonwealth could not locate its victim, who was to be the principal witness at the trial. Therefore, on August 28, 1975, the Commonwealth formally requested another extension of time to bring appellant to trial. Following a hearing on the petition this extension was granted the Commonwealth over appellant's objection. Appellant never filed a motion to dismiss pursuant to Rule 1100(f); and, on September 10, 1975, he was tried and found guilty of aggravated assault.
The first question we must address is whether appellant waived his right to raise an alleged violation of Rule 1100 on appeal because he failed to file a motion to dismiss pursuant to Rule 1100(f). This issue was first raised in this court in Commonwealth v. Sprankle, 241 Pa. Super. 298, 361 A.2d 385 (1976).*fn2 In the dissenting opinion in Sprankle it was argued that a motion to dismiss must be filed in every case in which a Rule 1100 violation is raised on appeal or else it will be waived. Responding to the dissent's interpretation of Rule 1100, in a footnote to the majority opinion, we indicated that it would be futile for the accused to file a motion to dismiss if he previously contested the Commonwealth's application for an extension of time, and if his challenge on appeal rested on the same grounds as did his objection to the extension.
At first it looked as if the Supreme Court would follow proposed course in the Sprankle dissenting opinion and establish a blanket rule requiring a motion to dismiss in every case in which a Rule 1100 violation is claimed on appeal. In Commonwealth v. Wallace, 475 Pa. 27, 379 A.2d ...