decided: July 12, 1978.
COMMONWEALTH OF PENNSYLVANIA
DOUGLAS SHEARER, APPELLANT
No. 1682 October Term, 1977, Appeal from Judgment of Sentence imposed on May 20, 1977, by the Court of Common Pleas, of Centre County, Criminal Division, No. 664 of 1976.
Alan Ellis, State College, for appellant.
C. Kent Price, Assistant District Attorney, and Charles C. Brown, Jr., District Attorney, State College, submitted a brief for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort and Hester, JJ., dissent.
[ 255 Pa. Super. Page 571]
Because we believe that the lower court erred in denying appellant's Rule 1100(f)*fn1 application, we vacate the judgment of sentence and order appellant discharged.
[ 255 Pa. Super. Page 572]
In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694, 696 (1976), our Supreme Court stated: "Rule 1100 mandates the commencement of trial within a specifically defined period of time. It provides for two exclusions from the computation of the mandatory period. Pa.R.Crim.P. 1100(d).*fn2 Whether or not circumstances exist in any given case which warrant excluding certain periods of time pursuant to section (d) is to be determined when an accused applies for dismissal of the charges because of an alleged violation of the Rule pursuant to section (f). Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872, 875 n. 9 (1976). Further, the Rule provides for extensions of the mandatory period where despite due diligence by the Commonwealth trial cannot be commenced within the mandatory period provided by the Rule or set forth in an order granting extension. Pa.R.Crim.P. 1100(c)."*fn3
In the instant case, Rule 1100(a)(2) mandated the commencement of trial within 180 days from the filing of the complaint on August 3, 1976. Trial did not commence until February 18, 1977, 200 days after the filing of the complaint. Thus, twenty 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
[ 255 Pa. Super. Page 573]
the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail.' Commonwealth v. O'Shea, [supra, 465 Pa. at 491, 350 A.2d at 874]" Commonwealth v. Shelton, supra, 469 Pa. at 14, 364 A.2d at 697. The Commonwealth does not contend that any days may be excluded from the mandatory period pursuant to Rule 1100(d). Instead, the Commonwealth attempts to justify the delay on the basis of a January 28, 1977 order granting a 30 day extension of time within which to commence trial pursuant to Rule 1100(c). However, the Commonwealth's Rule 1100(c) petition alleged only that trial could not be commenced within the 180 day period because appellant's pre-trial suppression motions remained outstanding. At a January 25, 1977 hearing on its Rule 1100(c) petition, held 175 days after the filing of the Complaint, the Commonwealth conceded that the lower court had resolved appellant's suppression motions on January 24, 1977, and admitted that it could proceed to trial within the next four days. Nevertheless, the Commonwealth reiterated its request for a Rule 1100(c) extension, and the lower court granted this request. We believe that the lower court's action contravened Rule 1100(c)'s injunction that: " [s]uch application shall be granted only if trial cannot be commenced within the [180 day] period, despite due diligence by the Commonwealth." Once the Commonwealth conceded that the lower court had decided all outstanding suppression motions prior to the January 25, 1977 hearing, no reason appeared why trial could not be commenced before the expiration of the 180 day period. Accordingly, the lower court should have refused the Commonwealth's request for a Rule 1100(c) petition and should have granted appellant's subsequent Rule 1100(f) application. Commonwealth v. Woodson, 248 Pa. Super. 545, 375 A.2d 375 (1977). We vacate the judgment of sentence and order appellant discharged.
Judgment of sentence vacated and appellant discharged.