No. 132 October Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Div. of Phila. County, Imposed on Bill of Indictment Nos. 855, 856, December Session, 1975.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion, in which Cercone, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 198]
The only issue raised on this appeal is whether the lower court was correct in granting the Commonwealth two extensions under Pa.R.Crim.P. 1100(c).
Appellant, citing Commonwealth v. Ray, 240 Pa. Super. 33, 360 A.2d 925 (1976), contends that the extensions should not have been granted because "the Commonwealth merely filed form petitions alleging due diligence and fail[ed] to allege any supporting facts." However, it appears that the criticism of form petitions in Ray was premised on the combination of a form petition and the absence of a hearing; we do not read Ray to hold that use of a form petition compels denial of an extension when a hearing is held on the petition. Here, a hearing was held on each of the Commonwealth's petitions. Appellant filed no answers to dispute the Commonwealth's averments of due diligence, nor does he now claim that he contested the point at the hearings, or that at the hearing the Commonwealth did not adequately prove its due diligence. Therefore, as far as the record reveals,*fn* the Commonwealth's averment of due diligence was uncontested, and we must accordingly conclude that the extensions were properly granted.
[ 259 Pa. Super. Page 199]
PRICE, Judge, dissenting:
On November 7, 1975, a written complaint was lodged against appellant charging him with various offenses. Appellant was ultimately tried on June 23, 1976, and convicted of receiving stolen property*fn1 and criminal conspiracy.*fn2 Following disposition of post-trial motions, appellant was sentenced. Appellant's sole contention on appeal is that he was not timely tried under Pa.R.Crim.P. 1100. I agree with appellant's contention, and would vacate the judgment of sentence and order him discharged.
Pa.R.Crim.P. 1100(a)(2)*fn3 mandates that trial in this case should have commenced on or before May 5, 1976. However, the Commonwealth requested and was granted two petitions for an extension of time in which to bring appellant to trial under Pa.R.Crim.P. 1100(c).*fn4 The ...