decided: October 20, 1978.
COMMONWEALTH OF PENNSYLVANIA
WALTER GARNETT, APPELLANT
No. 628 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, Imposed on Bill of Indictment Nos. 4860 and 4861 September Sessions, 1975.
David E. Auerbach, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Price, J., dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 117]
Following a jury trial, appellant was found guilty on two counts of possession and possession with intent to deliver methamphetamine. In this appeal from the judgments of sentence imposed thereon, appellant advances two contentions: 1) that a police officer was improperly permitted to state an opinion at trial on a matter which required expert testimony;*fn1 and 2) that the lower court erred in denying appellant's motion to dismiss the charges because of an alleged violation of Pa.R.Crim.P. 1100. We vacate the judgments of sentence and remand to the lower court for a proper determination of the Rule 1100 issue.
On July 8, 1975, two criminal complaints were filed against appellant charging him with offenses arising from the sale of methamphetamine to Agent Walter Gambrell of the State Narcotics Bureau. Appellant was arrested six days later on July 14, 1975.*fn2 Pursuant to Pa.R.Crim.P. 1100(a)(2), trial had to begin within 180 days of July 8, 1975, or no later than January 5, 1976.*fn3 Since appellant was not tried until May 20, 1976, the period of delay must either be excluded from computation of the 180-day period under Rule 1100(d), or be justified by an order granting a timely application by the Commonwealth for an extension as authorized by Rule 1100(c). Commonwealth v. Lamonna, 473 Pa. 248, 252, 373 A.2d 1355, 1357 (1977).*fn4 Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976).
[ 258 Pa. Super. Page 118]
Here, however, the only application for extension by the Commonwealth was filed on January 7, 1976, or 2 days after the normal time for trial had expired (185 days after the filing of the complaints).*fn5 The Commonwealth was given a 90 day extension to April 4, 1976. The Commonwealth must, of course, file the application for extension in a timely manner. Commonwealth v. Burton, 246 Pa. Super. 498, 371 A.2d 946 (1977). No such application will be granted nunc pro tunc. Commonwealth v. Wharton, 250 Pa. Super. 25, 378 A.2d 434 (1977). However, a petition for extension which is filed within the initial period of 180 days plus any time excludable under Rule 1100(d) is timely, Commonwealth v. Burton, 246 Pa. Super. 498, 501, 371 A.2d 946, 948 (1977). We must therefore determine whether any of the delay from July 8, 1975 to January 7, 1976 may be attributed to the unavailability of appellant or his counsel or to continuances requested by appellant. See Pa.R.Crim.P. 1100(d).
We are hampered in making this determination by the inadequacy of the record. Although Rule 1100(c) requires that a hearing be held on the application for extension, the record does not disclose whether appellant received notice of the 1100(c) proceedings or even whether a hearing, ex parte or otherwise, was held.*fn6 The lower court's opinion and appellee's brief indicate that this case was originally listed for trial on December 9, 1975, but that on December 11, 1975 appellant requested, and was granted, a continuance "due to the unavailability of [appellant] and his attorney." Lower court opinion at 3. Thus the question becomes
[ 258 Pa. Super. Page 119]
whether any of this time between December 11, 1975 (the date the continuance was granted) and January 12, 1976 (the first available trial date after the continuance was granted) may be excluded under Rule 1100(d).*fn7
The lower court's opinion deals rather summarily with this issue by stating that the delay was "in [no] way caused by a lack of due diligence on the part of the Commonwealth. . . . [T]he [delay was] solely attributable to . . . the unavailability of the Defendant on his counsel. . . ." Lower court opinion at 5. It thus appears that the trial judge was of the opinion that the entire 32-day period from December 11, 1975 to January 12, 1976 (the date to which the case was continued) was automatically excludable from the computation of the permissible 180 day time lapse between the filing of the complaint and trial. See Pa.R.Crim.P. 1100(d)(1).*fn8 We think, however, that section (d)(2) of Rule 1100 is applicable in the instant case. That section provides for the automatic exclusion of periods of delay occasioned by "any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded." Pa.R.Crim.P. 1100(d)(2) (emphasis added). See Commonwealth v. Shields, 247 Pa. Super. 74, 371 A.2d 1333 (1977). Since, pursuant to Rule 1100(d)(2), only two days of this period are excludable, January 7, 1976 was the last day on which the Commonwealth could have filed an
[ 258 Pa. Super. Page 120]
application for extension. The application filed on January 7, 1976 was therefore timely.
Turning to the merits of the extension petition, we recognize that the entire period of delay resulting from a continuance requested by the defense is a factor to be considered in determining whether the Commonwealth has exercised due diligence and is, as a result, entitled to an extension. Commonwealth v. Mancuso, 247 Pa. Super. 245, 253, 372 A.2d 444, 448 (1977). The problem in this case is that the record is so incomplete as to provide virtually no basis for determining whether the Commonwealth in fact exercised due diligence in attempting to bring appellant to trial.*fn9 As previously stated, it appears that the 90-day extension granted on January 12, 1976 was allowed without notice to appellant or a hearing on the Commonwealth's petition. On this ground alone we must, therefore, remand for a hearing on the 1100(c) petition; appellant must, of course, be given notice of the hearing and an opportunity to be heard thereon. If, after the hearing, the lower court determines that the extension was improvidently granted, appellant must be discharged.
If, on the other hand, it is determined upon remand that the extension was properly granted, the lower court must consider later alleged violations of Rule 1100. The court's order of January 12, 1976 extended the time for trial to April 4, 1976. Although appellant was not tried until May 20, 1976,*fn10 the Commonwealth filed no further petitions for extension. The lower court states in its opinion that on February 10, 1976, appellant or his trial counsel requested another continuance, apparently until March 9, 1976, and at the same time waived his Rule 1100 rights. Lower court
[ 258 Pa. Super. Page 121]
opinion at 4. It appears that no written waiver by appellant or his counsel, or request for continuance, is contained in the record, however.*fn11 Thus, even if upon remand it is determined that trial could have been held as late as April 4, 1976, the trial court must complete the record and substantiate its finding of waiver. Otherwise appellant is entitled to be discharged.
Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.