No. 879 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Information No. 1298, November Session, 1976.
Stanley J. Sinowitz, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
Cercone, Hester and Hoffman, JJ.
[ 264 Pa. Super. Page 179]
Appellant raises several issues on appeal.*fn1 However, we will examine only his contention that he should be discharged because the lower court erred in granting the Commonwealth's petition for an extension of time under Pa.R.Crim.P. 1100(c). After reviewing the record, we have concluded that we must remand the case for a full and complete hearing on the petition.
On July 5, 1976, Philadelphia police filed a written complaint against appellant charging him with simple and aggravated assault*fn2 and attempted murder.*fn3 The charges arose from an incident on July 5, 1976, during which appellant, almost 60 years old, argued with and then severely kicked one Frank Pandolfi, aged 74 years. Trial did not commence until April 13, 1977, 282 days later.
The record reveals the following facts. On July 14 and 30, and August 20, 1976, the case was continued because the victim-complainant was in the hospital. On September 17, 1976, it was continued due to a bench-bar conference. On
[ 264 Pa. Super. Page 180]
October 1, 1976, the lower court again continued the case, noting only "no complaint." Over appellant's objection, the lower court continued the case on October 22, 1976 because the District Attorney was unprepared. At the preliminary hearing on November 26, 1976, the court discharged appellant as to the attempted murder charge and held him on the two assault charges. It noted that the run date under Rule 1100 was January 3, 1977. On December 10, 1976, the court noted that both parties were ready but that the court could not reach the case that day because another and lengthy case was in progress. After an on-the-record colloquy, appellant agreed to waive the period from December 10, 1976 to January 17, 1977. On January 17, 1977, the court denied appellant's oral motion to dismiss under Rule 1100 and continued the case to February 7, 1977, noting: "Com[monwealth] witness not available (Has appointment in regard to her son.)". On February 3, 1977, appellant filed a written motion to dismiss under Rule 1100. On February 7, 1977, the court noted: "Open motion to dismiss under Rule 1100" and continued the case to February 23, 1977. However, the transcript of proceedings of February 15, 1977 reveals that the court added 38 days to the Rule 1100 run date due to appellant's waiver on December 10, 1976, thereby creating a new run date of February 8, 1977, and denied both appellant's Rule 1100(f) petition as premature and his oral motion to amend his petition to one for dismissal under Philadelphia Local Rule 800. Also on February 15, 1977, the Commonwealth filed its first petition for extension of time under Rule 1100(c). On March 8, 1977, despite appellant's opposition, the court granted the Commonwealth's petition and extended the run date to March 24, 1977. On March 24, 1977, the court issued bench warrants for two Commonwealth witnesses and continued the case to April 7, 1977. Also on March 24, 1977, the Commonwealth filed its second Rule 1100(c) extension petition. On April 1, 1977, the court granted the Commonwealth's extension petition because of the March 24, 1977 bench warrants for the Commonwealth's witnesses and extended the run date to April 11, 1977. On April 11, 1977, appellant waived Rule 1100 until April 20,
[ 264 Pa. Super. Page 1811977]
and requested a continuance because new counsel had just entered an appearance. Trial commenced on April 13, 1977. A jury found appellant guilty of simple assault and not guilty of aggravated assault. After denying post-verdict motions, the lower court sentenced appellant to six to 23 1/2 months imprisonment plus a $500 fine. This appeal followed.
Appellant contends that he should be discharged because the lower court erred in granting the Commonwealth its first extension of time under Rule 1100(c). Pa.R.Crim.P. 1100(c) provides:
"(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the ...