No. 1091 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 1928-29, 1935, 1937, March Term, 1977.
Douglas H. Riblet, Assistant Public Defender, Philadelphia, for appellant.
Sheldon M. Finklestein, Philadelphia, for Commonwealth, appellee.
Hester, Hoffman and Catania, JJ.*fn* Hester, J., files a dissenting opinion.
[ 273 Pa. Super. Page 111]
The issues presented by this appeal are (1) whether the filing of a Commonwealth petition to extend tolls the running of the Rule 1100 period; and (2) whether appellant acquiesced in the extension of the period in this case. We hold that filing the petition does not toll the 180-day period and, accordingly, reverse and remand for an evidentiary hearing on the issue of appellant's acquiescence in the extension.
On March 12, 1977, a criminal complaint was filed against appellant. Thus, the original Rule 1100 run date was September 8, 1977. Appellant, however, agreed to waive his Rule 1100 rights until November 8, 1977. Because November 8, 1977, was a court holiday (election day), the new Rule 1100 run date was November 9, 1977.
On October 14, 1977, appellant requested that a line-up be held for identification by a Commonwealth witness. The Commonwealth was unable to locate the witness, it requested and obtained a continuance on October 31, 1977. No transcript is available of the October 31, 1977, proceeding at which the case was continued to November 15, 1977.
On November 7, 1977, two days before the expiration of the Rule 1100 period, the Commonwealth filed a petition to extend pursuant to Rule 1100(c). At the November 14 and 15 hearing on the petition, the Commonwealth conceded that it had not exercised due diligence in locating the witness. Therefore, the lower court denied the Commonwealth petition on November 15, 1977. On the same day, following the
[ 273 Pa. Super. Page 112]
denial, appellant filed a motion to dismiss pursuant to Rule 1100(f). At the November 21, 1977, hearing on appellant's motion, the lower court determined that the filing of the Commonwealth petition to extend two days before the Rule 1100 run date had tolled the Rule 1100 period. Appellant's motion to dismiss was, therefore, denied as untimely.*fn1 At the close of the hearing, the court held a suppression hearing and immediately thereafter, proceeded to try appellant. Appellant was eventually convicted of burglary, robbery, criminal conspiracy, and possessing an instrument of crime. After denial of his post-verdict motions, appellant took this appeal.
Appellant contends that the lower court erred in concluding that the filing of a Commonwealth petition to extend tolls the running of the Rule 1100 period.*fn2 Pursuant to Rule 1100(c), the Commonwealth may petition the court for an extension of the 180-day period in which it must try a criminal defendant. As we have frequently noted, however, the Commonwealth must file its petition to extend before the end of the 180-day period. See, e. g., Commonwealth v. Smith, 262 Pa. Super. 258, 396 A.2d 744 (1978). Moreover, "the lower court should make every effort to dispose of the Commonwealth's petition prior to the expiration of the prescribed period." Commonwealth v. Ray, 240 Pa. Super. 33, 36, 360 A.2d 925, 927 (1975). We have stressed the importance of prompt disposition of the petition because "if the court denie[s] the ...