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filed: November 2, 1979.


No. 2175 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal Division, No. 4988 of 1976.


Jonathan A. Briskin, Bryn Mawr, for appellant.

Sandra L. Gross, Assistant District Attorney, Media, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ.

Author: Price

[ 271 Pa. Super. Page 468]

After a jury trial, appellant was convicted of robbery,*fn1 possession of instruments of crime,*fn2 theft by unlawful taking,*fn3 and conspiracy.*fn4 Appellant's post-trial motions were denied, and he was sentenced to a term of imprisonment totaling from twenty-three to fifty-nine months.

Appellant raises numerous contentions on appeal,*fn5 one of which is that his right to a speedy trial under Pa.R.Crim.P. 1100*fn6 was violated. We are constrained to agree with appellant, and therefore vacate the judgment of sentence and order him discharged.*fn7

The pertinent facts are as follows. A written complaint was filed against appellant on July 23 1976, charging him with the robbery of the KYJ Bakery in Chester, Pennsylvania.

[ 271 Pa. Super. Page 469]

Trial was initially scheduled to begin on October 19, 1976, but the Commonwealth, with court approval, advanced this date to October 12, 1976. Due to the unavailability of courtrooms, the case was continued on October 12, with the new date for trial being set for November 22, 1976. Appellant filed an application with the court of common pleas for reconsideration of an order denying a previous suppression motion he had made. A rule was issued that same day staying all proceedings and scheduling a hearing for December 13. On November 22, a continuance to December 13 was granted at appellant's request. The Commonwealth notified the trial court on December 13 that it was unprepared to proceed with the hearing on appellant's application; the hearing was rescheduled to January 26, 1977. On December 16, 1976, the court continued appellant's trial date to February 1, 1977, and it also granted the Commonwealth's December 15 petition*fn8 to extend the run time under Rule 1100. The new run date established was February 4, 1977. Appellant was granted a continuance on February 1, and the case was continued to February 3. After a hearing on February 4, the Commonwealth's second petition to extend was granted, and the new run date established was March 4, 1977. On February 28, appellant requested another continuance and executed a waiver of his Rule 1100 rights until April 11;*fn9 trial was rescheduled to this latter date. Trial did commence

[ 271 Pa. Super. Page 470]

    on that date, the 262nd day after the filing of the criminal complaint in this case.

Under the precept of Rule 1100, the Commonwealth had 180 days from the filing of the complaint, or until January 19, 1977, to bring appellant to trial, barring any periods of time excluded under section (d)*fn10 of the rule, or any extensions granted to the Commonwealth under section (c)*fn11 of the rule. Our review of the record discloses no excludable time prior to the run date of January 19, 1977.

Appellant obtained a continuance from November 22, 1976, to December 13, 1976, a total of twenty-one days. Since this continuance was of less than thirty days duration, no time is excludable under the rule. See Pa.R.Crim.P. 1100(d)(2). On December 13, the case was further continued to February 1, 1977, due to the Commonwealth's unpreparedness for the hearing on appellant's application for reconsideration. The court of common pleas implied that the delay caused by this second continuance was the responsibility of appellant and as such should be charged against him.*fn12 Such a conclusion is unsupportable in law. The delay

[ 271 Pa. Super. Page 471]

    from December 13 to February 1 was caused by a combination of the Commonwealth's unpreparedness with respect to appellant's application for reconsideration and by the unavailability of the suppression hearing judge. Although the latter may be a reason supporting the granting of a petition to extend, neither reason would support a finding of excludable time under section (d) of the rule. See, e. g., Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979).

The Commonwealth twice was granted extensions of the run time for Rule 1100 purposes. The first of these extensions, which established the new run date as February 4, 1977, was granted, appellant contends, without benefit of notice to him and after an ex parte hearing. Appellant asserts that this practice violated the procedural requirements of Rule 1100 and denied him the right to assistance of counsel. Appellant also maintains that the December 15th petition to extend was not supported by a showing of due diligence by the Commonwealth and therefore was improperly granted. We agree that the December 15 petition was improperly granted, thereby making it a nullity. With the run time for Rule 1100 left unaltered, the Commonwealth had until January 19, 1977, to bring appellant to trial. Since trial did not commence by that date, appellant's Rule 1100 rights were violated, and we must thus vacate the judgment of sentence and discharge appellant.

Rule 1100(c) provides that applications by the Commonwealth to extend the run time shall be granted "only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth." In the past, this court and our supreme court have stressed the importance

[ 271 Pa. Super. Page 472]

    of having a record showing of due diligence by the Commonwealth. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Warman, 260 Pa. Super. 143, 393 A.2d 1046 (1978); Commonwealth v. Tome, 248 Pa. Super. 242, 375 A.2d 78 (1977).

"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 causes of the court delay and the reasons why the delay cannot be avoided." Commonwealth v. Mayfield, supra, 469 Pa. at 222, 364 A.2d at 1349-1350.

The entire transcript of the ex parte "hearing" conducted on December 16, 1976, consists of the following:

"COURT ADMINISTRATOR: In the case of Clifton Berry, new trial date for this case will be January the 2nd -- I'm sorry, February 1st.*fn13

MR. BREEN [Assistant District Attorney]: I would request an extension in both of Clifton Berry's cases. It expires January 4th.

THE COURT: In this case I find that there are no jury rooms available for the trial of this case. Preference has been given to jailed defendants. This case will not be able to be reached because there are no jury trial rooms available, and extends the case to February 4, 1977."

In reviewing a hearing court's ruling that the Commonwealth has met its burden of showing compliance with Rule 1100(c), we consider only the evidence presented by the Commonwealth and so much evidence that, as fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826

[ 271 Pa. Super. Page 473]

(1977). In this endeavor, a judicially conceived justification for extension cannot serve as a substitute for the Commonwealth's affirmative duty under Ehredt. Commonwealth v. Miller, 270 Pa. Super. 178, 411 A.2d 238 (1979). We find that the Commonwealth failed to make a record showing of due diligence. The procedure followed in the instant case is woefully inadequate when measured by the standards set forth in section (c) of Rule 1100 and in Commonwealth v. Mayfield, supra, and its progeny. As a result, we must view the December 16 order granting the Commonwealth an extension of time to February 4, 1977, as a nullity. See Commonwealth v. Warman, supra. Left unaltered, the run date for Rule 1100 purposes was January 19, 1977, and because trial did not commence by that date, appellant was entitled to discharge under the rule. Viewed in this light, it was error for the court of common pleas to grant an extension on the Commonwealth's untimely petition filed on February 3, see Commonwealth v. Ellison, 249 Pa. Super. 339, 378 A.2d 325 (1977), and it was also error for the court to dismiss appellant's timely petition to discharge filed on April 11, 1977.

Accordingly, we vacate the judgment of sentence and order appellant discharged.

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