No. 656 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lehigh County, Pennsylvania, Criminal Division, at Nos. 842 and 84 of 1975.
James L. Heidecker, Jr., Allentown, for appellant.
William H. Platt, District Attorney, Allentown, for Com., appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Van der Voort, J., files a Dissenting Statement. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 327]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Lehigh County, Pennsylvania, Criminal Division, imposed at Indictment Nos. 842 and 843 of 1975.
The procedural history and facts relevant to the appeal are as follows:
On February 19, 1975, appellant was arrested in Coopersburg, Pennsylvania, and a complaint was filed charging him
[ 262 Pa. Super. Page 328]
with robbery, theft, receiving stolen property, and aggravated assault. After being held for court on all charges at the preliminary hearing, he waived arraignment and a trial date was set for April 14, 1975. On that date, the Commonwealth was granted a continuance until June 12, 1975 due to the fact that the alleged co-defendant was hospitalized and unavailable. After continuing the case a second time, the Commonwealth, on June 20, 1975, filed a timely petition for extension of time to commence trial. It was a form petition, stating that the Commonwealth had been unable to proceed to trial because of the hospitalization and unavailability of a co-defendant and nothing more as to due diligence on the part of the Commonwealth in proceeding to trial. The lower court granted the extension until Sept. 26, 1975, ex-parte, without notice to the appellant or his counsel. The order was signed without a hearing of any kind or a factual recitation in support thereof by the Commonwealth. Appellant filed a motion to dismiss under Pennsylvania Rule of Criminal Procedure 1100(f) for failure to try him within the required 180-day period, unaware of the extension granted by the court. The motion to dismiss was denied, and the case proceeded to trial resulting in a conviction on September 19, 1975.
A motion in arrest of judgment was denied and this timely appeal followed.
Appellant contends that pursuant to Rule 1100(c), a petition for extension of time must be filed with the court, a copy served upon the defendant or his attorney, and the defendant granted an opportunity to be heard at a hearing wherein the Commonwealth is required to show due ...