No. 1362 October Term, 1977, Appeal from Judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal Division at No. 1547 April Term, 1975.
Charles J. Weiss, Ambler, for appellant.
Robert A. Selig, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion. Jacobs, J., did not participate in the consideration or decision of this case.
[ 269 Pa. Super. Page 244]
Appellant takes this appeal from his conviction for driving a motor vehicle while under the influence of alcohol. Appellant makes three arguments, all challenging the extension of time for trial granted to the Commonwealth under Pennsylvania Rules of Criminal Procedure 1100(c). Because of our view of this case, we need only address ourselves to one of appellant's arguments. Accordingly, for the reasons set forth below we order that a full hearing be held at which time the Commonwealth is to be given the opportunity to show due diligence.
A criminal complaint was filed against appellant on March 13, 1975. Subsequently, on September 9, 1975, the Commonwealth petitioned the Court of Common Pleas of Montgomery County for an extension of time. This was the one hundred and eightieth day from the date of the filing of the criminal complaint. A hearing concerning the Commonwealth's petition was held on September 19, 1975 during which appellant challenged the averments contained in the Commonwealth's petition. Specifically, appellant took issue with the Commonwealth's allegation that the reason appellant's case had not been listed for trial within the one hundred and eighty day period is because of court backlog and unavailability of judges. Unfortunately, neither appellant nor the Commonwealth was able to develop their arguments any further or to put in evidence supporting their respective positions on the record because the hearing was cut short by the presiding judge, who said,
"If every attorney comes in here and denies all these allegations, we are going to have ten full hearings. That
[ 269 Pa. Super. Page 245]
is the next thing we are going to do. So I am going to deny your motion. Take it up to the Appellate Court. I hope the Appellate Court sustains your position, so far as I am concerned. I'm sick and tired of these cases."
We have in the past ordered new hearings on Rule 1100 issues where the record before us was so incomplete that we could not meaningfully review the issue. See Commonwealth v. Golson, 263 Pa. Super. 143, 397 A.2d 441 (1979); Commonwealth v. Clark, 256 Pa. Super. 456, 390 A.2d 192 (1978); Commonwealth v. Wareham, 256 Pa. Super. 23, 389 A.2d 581 (1978); Commonwealth v. Gardner, 253 Pa. Super. 233, 384 A.2d 1318 (1978); Commonwealth v. Krall, 249 Pa. Super. 433, 378 A.2d 373 (1977); Commonwealth v. Tome, 248 Pa. Super. 242, 375 A.2d 78 (1977); Commonwealth v. Clark, 248 Pa. Super. 184, 374 A.2d 1380 (1977). In view of the actions of the lower court we conclude that the instant case is also a proper one for a rehearing.
Accordingly, we remand and order that a full hearing be held on the Rule 1100 issue, during which the Commonwealth is ...