No. 84 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 498--77.
George B. Ditter, Assistant Public Defender, Norristown, for appellant.
William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort, J., dissents. Spaeth, J., files a Concurring Opinion. Hester, J., files a Dissenting Statement. Hoffman, J., did not participate in the consideration or decision of this case.
[ 261 Pa. Super. Page 371]
Appellant contends that the lower court erred in granting the Commonwealth's petition for an extension of time under Pa.R.Crim.P. 1100(c) and in denying his motion to dismiss the charges against him under Pa.R.Crim.P. 1100(f). Because we agree, we reverse the judgment of sentence and discharge appellant.
On February 4, 1977, Lower Merion Township police arrested appellant and filed a written complaint charging him with burglary,*fn1 theft,*fn2 receiving stolen property,*fn3 and criminal conspiracy.*fn4 Trial did not commence until August 5, 1977, 182 days after the filing of the written complaint. On August 2, 1977, the 179th day, the Commonwealth filed a petition for an extension of time under Pa.R.Crim.P. 1100(c),*fn5 in which it claimed that, despite its due diligence, unavoidable judicial delay prevented it from commencing appellant's trial within 180 days of the written complaint. On August 5, 1977, the 182nd day, the lower court held a hearing on the Commonwealth's Rule 1100(c) petition, and appellant filed a motion to dismiss the charges against him under Rule 1100(f). The hearing of August 5, 1977 revealed the following facts.
Concerning the unavailability of courtrooms and judicial delay, the testimony of several witnesses revealed that the lower court did not schedule any trials during the period from June 27 to August 3, 1977, the 180th day: the last week of June 1977 was an "open week" during which no trials were scheduled, the court recessed during the entire
[ 261 Pa. Super. Page 372]
month of July, 1977, and the court was "for all practical purposes" closed on August 1, 2 and 3, 1977, while judges attended the Pennsylvania Conference of State Trial Judges. During four of the six preceding weeks between May 16, 1977, when appellant's case was first listed for trial, and June 27, 1977, when the court stopped scheduling trials, four judges sat in the criminal division of the lower court; during the other two weeks of that period, two and three judges were so sitting, respectively. From the bench, PRESIDENT JUDGE RICHARD S. LOWE, the lower court judge presiding at this hearing, indicated that he had scheduled the lower court's July recess upon the assurances of the prosecutor's office that no Rule 1100 problems would arise during that time. The prosecutor's records revealed that there were 1292 criminal cases pending as of May 1, 1977; it presented no evidence of the number of cases pending as of June 1, 1977. The Commonwealth also presented no evidence concerning the number of those cases having Rule 1100 problems or the number of prosecutors available to handle them.
The assignment clerk from the office of the Court Administrator of the Montgomery County Court of Common Pleas testified that she is responsible for listing criminal cases for trial. She first receives a list of cases ready for trial from the prosecutor's office. She then lists them for trial on a board in chronological order, by their initial trial list date, and in columns under the names of the prosecutors assigned to try them. She first listed appellant's case for trial on May 16, 1977. Throughout May and June 1977, the prosecutor initially assigned to try appellant's case had a number of very long trials listed in his column ahead of appellant's. The prosecutors office did not assign appellant's case to another assistant district attorney until some time around August 1, 1977, when the prosecutor originally assigned to the case resigned. Appellant's case did not reach "standby", or imminently triable, status until July 29, 1977, the 174th day. August 4, 1977, the 181st day, was the first available day for trial thereafter due to the court's schedule. The
[ 261 Pa. Super. Page 373]
new prosecutor who was assigned to try appellant's case had just transferred from another section of the prosecutor's office and had no backlog of cases; as a result, appellant's case "zoomed to the top" of the trial list in his column. The assignment clerk testified that if appellant's case had been reassigned to another ...