No. 1308 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, at Nos. 1455-1456 May Term, 1977.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, submitted a brief on behalf of the Commonwealth, appellee.
Price, Hester and Hoffman, JJ. Hester, J., files a dissenting opinion.
[ 272 Pa. Super. Page 138]
Appellant contends, inter alia,*fn1 that the lower court erred in granting the Commonwealth's two petitions for extension of time pursuant to Pa.R.Crim.P. 1100(c). We agree and, accordingly, vacate the judgment of sentence and discharge appellant.
The complaint in this case was filed on April 19, 1977. The trial did not begin until December 9, 1977, 233 days after the complaint was filed. Trial should have begun by October 17, 1977, unless the period of delay beyond 180 days was either excluded under Rule 1100(d) or properly extended by court order under Rule 1100(c). The record indicates that this case was listed for trial on June 13, 1977. On that date, the lower court granted a continuance until July 5, 1977, because the defense was not ready. On July 5, 1977, the court granted a continuance until August 9, 1977, because a Commonwealth witness was on vacation. On August 9, 1977, the Commonwealth and the defense jointly requested a continuance because witnesses were not present. The case was continued until September 26, 1977. There is no indication in the record why trial did not begin on September 26. On October 11, 1977, the Commonwealth was granted a continuance until October 26, 1977, because the arresting officer was out of the country. On October 17, 1977, the Commonwealth filed a timely petition for an extension of time under Rule 1100(c). This petition was a form petition, which merely contained the unsupported assertion that the Commonwealth was unable to try this case within the 180 day period "[d]espite due diligence." On November 3, 1977, appellant filed an answer to the Commonwealth's petition and a motion to dismiss. On November 4, 1977, the lower court held a "hearing." The full discussion at that proceeding concerning the petitions was as follows:
THE COURT: 4-19-77, initiation date; 10-17-77, normal run date. Commonwealth filed their petition on 10-17, therefore timely filed.
[ 272 Pa. Super. Page 1396]
-13 to 7-5, defense request, not ready, twenty-two days.
8-9 to 9-26, a period of forty-eight days, joint application, a period of twenty-four days.
Twenty-two and twenty-four are forty-six; thirty day credit brings ...