No. 2116 October Term, 1978, Appeal from the Order Denying Motion in Arrest of Judgment and Motion for New Trial and Appeal from Order of Sentence Entered February 10, 1978; Affirmed after Reconsideration by Order of June 26, 1978.
John C. Howett, Jr., Harrisburg, for appellant.
James J. Rosini, District Attorney, Shamokin, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 270 Pa. Super. Page 180]
Appellant contends, inter alia,*fn1 that the lower court erred in granting the Commonwealth's petition for extension of time to commence trial under Pa.R.Crim.P. 1100(c). We agree and, accordingly, reverse the judgment of sentence and order appellant discharged.
The particular nature of the issue herein requires us to recite the facts in some detail. On April 8, 1974, a criminal complaint was filed against appellant charging him with passing several bad checks. Appellant was arrested that same day. Under Pa.R.Crim.P. 1100(a)(1), the Commonwealth was obligated to bring appellant to trial within 270 days of the filing of the complaint.*fn2 Two hundred and thirty-nine days after the complaint was filed, on December 4, 1974, the lower court issued an order placing appellant in the Accelerated Rehabilitative Disposition (ARD) program. Appellant remained in ARD until June 19, 1975, when the court ordered him removed from the program for violation of conditions. Because the time spent in ARD is automatically excluded from the prompt trial period established by Rule 1100,*fn3 the Commonwealth still had thirty-one days, or until July 20, 1975, in which to commence appellant's trial.
On July 11, 1975, the Commonwealth filed a petition seeking an extension of time to commence trial under Rule
[ 270 Pa. Super. Page 1811100]
(c). The Commonwealth's petition was a "form" petition which simply alleged that trial could not be commenced within the prescribed period despite the Commonwealth's due diligence. The petition stated no reason why trial could not be timely commenced and cited no facts to support the Commonwealth's assertion of due diligence. Appellant answered this petition and filed a motion to dismiss the charges against him on July 25, 1975. Appellant's motion to dismiss was based on his contention that he had not waived his speedy trial rights when he entered ARD, and that therefore his time spent in ARD was not properly excludable from the Rule 1100 period. The lower court held a hearing on the petition and motion on November 3, 1975.*fn4 Testimony at that hearing concerned only the issue of appellant's waiver of speedy trial rights while on ARD. The Commonwealth offered no evidence whatsoever supporting its petition for an extension of time. On November 14, 1975, the lower court issued an opinion and order denying appellant's motion to dismiss and extending the time for commencement of trial to the court term beginning November 17, 1975. In its opinion the lower court concluded that the Commonwealth had exercised due diligence in attempting to bring appellant to trial, but it cited no facts or evidence in support of this conclusion. On November 19, 1975, appellant again moved the court to dismiss the charges and reconsider its earlier order granting the Commonwealth an extension. In his motion, appellant expressly asserted that the Commonwealth had failed at the November 3 hearing to advance any grounds for granting an extension. The court denied appellant's motion on the same day that it was filed and reaffirmed its finding of due diligence on the part of the
[ 270 Pa. Super. Page 182]
Commonwealth. Appellant was tried on November 21, 1975, convicted of the charges, and sentenced to a fine of $500.00, plus two years probation and restitution to victims of his bad checks. This appeal followed.
Pa.R.Crim.P. 1100(a)(1) requires the Commonwealth to commence the trial of a criminal defendant within 270 days after a written complaint is filed. A court may grant the Commonwealth an extension of time for trial if it finds that "trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth." Pa.R.Crim.P. 1100(c). In seeking an extension "[t]he Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). . . . Furthermore, in reviewing a hearing court's ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth ...