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COMMONWEALTH PENNSYLVANIA v. JAMES W. ECK (12/07/79)

filed: December 7, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JAMES W. ECK



No. 3082 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Lycoming County, Criminal Division, No. 78-10, 487.

COUNSEL

Robert F. Banks, First Assistant District Attorney, Williamsport, for Commonwealth, appellant.

John P. Campana, Williamsport, for appellee.

Price, Gates and Dowling, JJ.

Author: Price

[ 272 Pa. Super. Page 408]

The Commonwealth appeals from the order of the Court of Common Pleas of Lycoming County per Judge Carson V. Brown granting appellee's motion to dismiss filed pursuant to Pa.R.Crim.P. 1100(f). Because we find that Judge Brown's order, which in effect overruled a previous order of a judge of equal and concurrent jurisdiction, was an inappropriate exercise of authority, we reverse the order. Additionally, we remand the case to the court of common pleas for a full and complete hearing on the Commonwealth's petition for extension.

The pertinent facts are as follows. Appellee was arrested on December 4, 1977, and charged with the crime of driving under the influence.*fn1 When the arresting officer did not appear at a preliminary hearing on December 15, 1977, the complaint was dismissed for lack of prosecution. A second complaint charging appellee with the same crime based on the same facts as were alleged in the first was filed on May 30, 1978.

Under the precept of Rule 1100,*fn2 trial had to commence by November 26, 1978, barring any exclusions of time under section (d)*fn3 of the Rule or any extensions of the run date granted under section (c) of the Rule. Appellee filed a petition to dismiss on August 14, 1978, alleging that 180 days

[ 272 Pa. Super. Page 409]

    had expired from the date of the first complaint and that as a result, he should be discharged. At the October 24 hearing on this motion, the Commonwealth was directed to file a brief by November 6, and appellee was given seven days thereafter in which to reply to the Commonwealth's brief. On November 6, the Commonwealth filed a petition to extend alleging, in effect, that despite its due diligence, the time consumed in disposing of appellee's motion to dismiss would prevent trial from commencing within the November trial term and within the Rule 1100 run date. A hearing was held on the Commonwealth's petition, although no transcript of the proceedings was made, and by order dated November 27, 1978, the Court of Common Pleas of Lycoming County, per Judge C. F. Greevy, granted the petition and extended the run time to the next trial term (December). On December 1, appellee filed another petition to dismiss alleging, inter alia, the impropriety of Judge Greevy's order granting the Commonwealth's petition to extend. A hearing on this December 1 petition was held before President Judge Brown, and he issued an order on December 14, 1978, granting appellee's petition to dismiss and, in effect, setting aside Judge Greevy's November 27 order. It is from this order that the Commonwealth appeals and alleges that Judge Brown erred in concluding that judicial delay was an insufficient basis upon which to grant an extension and in overruling Judge Greevy's previous order.

It is well established that absent some new evidence, it is improper for a trial judge to overrule an interlocutory order by another judge of the same court in the same case. Commonwealth v. Washington, 428 Pa. 131, 236 A.2d 772 (1968); Commonwealth v. Warfield, 418 Pa. 301, 211 A.2d 452 (1965) (by implication); Commonwealth v. Griffin, 257 Pa. Super. 153, 390 A.2d 758 (1978). "There must be some degree of finality to determinations of all pre-trial applications so that judicial economy and efficiency can be maintained." Commonwealth v. Griffin, supra, 257 Pa. Super. at 157, 390 A.2d at 760. The effect of Judge Brown's December 14 order was to overrule Judge Greevy's previous

[ 272 Pa. Super. Page 410]

    order of November 27 which granted the Commonwealth's petition to extend. Under these circumstances, we find that the order granting appellee's petition to dismiss was an inappropriate ...


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