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filed: September 14, 1979.


No. 1996 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, At No. 2018-77.


John A. DiCicco, Assistant Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ. Cercone, President Judge, concurs in the result. Watkins, J., notes dissent.

Author: Hoffman

[ 269 Pa. Super. Page 426]

Appellant contends, inter alia,*fn1 that the lower court erred in granting the Commonwealth's petition for an extension of time pursuant to Pa.R.Crim.P. 1100(c) and in denying his motion to dismiss the charges against him pursuant to Pa.R.Crim.P. 1100(f). We agree and, accordingly, vacate the judgment of sentence and discharge appellant.

On May 26, 1977, the Plymouth Township Police Department filed a written complaint charging appellant with burglary, theft, receiving stolen property, and criminal conspiracy. Trial did not begin until February 9, 1978, 259 days after the complaint was filed. On October 26, 1977, appellant's attorney was granted a continuance for three weeks

[ 269 Pa. Super. Page 427]

    because he would be on vacation. On November 22, 1977, the Commonwealth filed a petition for an extension of time under Pa.R.Crim.P. 1100(c). The Commonwealth stated in support of its petition that this case was scheduled for trial on September 15, 1977, that on the first day of that month the criminal case inventory in Montgomery County numbered 1,150, and that only four judges were assigned to hear criminal trials during the week the case was scheduled for trial. On November 28, 1977, appellant filed a petition to dismiss the charges under Pa.R.Crim.P. 1100(f). On December 13, 1977, the lower court held a hearing on both petitions. The Commonwealth presented no evidence at the hearing. The prosecutor stated that the instant case had been listed on the scheduling board as his next case during the week of October 24, 1977, and that if appellant's attorney had not obtained a continuance, the case would have been tried no later than the week of October 31, 1977. The prosecutor attempted to explain the failure to try the case after the three week continuance by stating that after a case has been removed from the scheduling board, the court administrator tries to fit it in, but it does not automatically become that prosecutor's next case to be tried.

After the hearing, the lower court denied appellant's petition to dismiss and granted the Commonwealth a 60 day extension of time. Following a jury trial, appellant was convicted of burglary and conspiracy. The lower court denied appellant's post-trial motions and sentenced him to four to ten years imprisonment on the burglary charge and five years probation on the conspiracy charge. This appeal followed.

Rule 1100 requires the Commonwealth to commence trial within 180 days of the filing of the written complaint. Pa.R.Crim.P. 1100(a)(2). Defendant must be discharged unless any period of delay beyond 180 days is either excluded under Rule 1100(d)*fn2 or properly extended by a court order

[ 269 Pa. Super. Page 428]

    under Rule 1100(c).*fn3 Where a continuance is granted to defendant's attorney because of his unavailability, the entire period of the continuance is excludable under Rule 1100(d)(1) if it delays commencement of trial. Commonwealth v. Smith, 262 Pa. Super. 258, 396 A.2d 744 (1978). Judicial delay may justify granting an extension of time under Rule 1100(c). Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). One instance in which an extension may be granted because of judicial delay is "where the Commonwealth is prepared to commence trial prior to the expiration of the mandatory period but the court because of scheduling difficulties or the like is unavailable." Commonwealth v. Shelton, supra, 469 Pa. at 18, 364 A.2d at 699. In Commonwealth v. Mayfield, supra, our Supreme Court stated: "Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the 'due diligence' of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record must also show the ...

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