No. 2782 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County at Nos. 2475 & 2478 of October 1977.
Thomas R. Hurd, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.
[ 282 Pa. Super. Page 160]
This is an appeal from judgments of sentence for robbery*fn1 and criminal conspiracy.*fn2 The principal issue is whether appellant should have been discharged under Rule 1100.*fn3
At approximately 10:30 p. m. on September 26, 1977, appellant and one Artie Williams approached a group of people gambling with dice outside a Philadelphia grocery store. Appellant said, "This is a stickup." (N.T. 116, 126) Williams aimed a sawed off shotgun at them, told them to give up their possessions, and appellant collected the possessions. One of the group, who was a victim of the robbery, managed to run away, and notified the police of the incident. Upon receiving this information, Officers Joseph Legradi and Kenneth Linneman went to Artie Williams's house. Upon arriving, Officer Legradi saw a black male descending the steps of the house. Both officers entered the house, and found appellant hiding under a convertible sofa bed, a wristwatch nearby appellant in the sofa bed, and the sawed off portion of a shotgun barrel in the closet. Appellant was then arrested. On September 27, 1977, Williams was arrested, and a criminal complaint was issued against both men, charging them with robbery and criminal conspiracy. The cases were severed for trial and on April 26, 1978, a jury convicted appellant. After post-verdict motions were denied, appellant was sentenced to consecutive terms of 7 1/2 to 15 years imprisonment for robbery and 5 years probation for criminal conspiracy.
As noted, the criminal complaint was filed on September 27, 1977. Therefore, under Rule 1100(a)(2)*fn4 the Commonwealth
[ 282 Pa. Super. Page 161]
had 180 days, or until March 27, 1978, in which to try appellant. Any delay after that date "must be either excluded from this computation of the 180 days under section (d) of Rule 1100 or be justified by an order granting an application by the Commonwealth for an extension of time pursuant to section (c)." Commonwealth v. Lamonna, 473 Pa. 248, 253, 373 A.2d 1355, 1357 (1977).
In the present case, trial did not commence until April 24, 1978, due to the following delays. The preliminary hearing was scheduled for October 3, 1977, but was postponed because the complainant failed to appear. The hearing was continued to October 14, but the hearing judge refused to hear the case. The hearing was continued to October 24, but was postponed when the complainant again failed to appear. Finally, on October 28, the preliminary hearing was held. Arraignment was held on November 15. On December 2 a continuance was granted at appellant's request. On December 29 the Commonwealth was granted a continuance because one of the arresting officers had been injured on duty. On February 2, 1978, the Commonwealth was granted another continuance, because the complainant failed to appear. On February 15 a hearing on appellant's motion to suppress was held. On March 9 the defense requested a continuance to obtain the notes of testimony of the suppression hearing. The lower court granted this motion and continued trial until Friday, April 21. On March 15 the Commonwealth filed an application to extend the time for trial under Rule 1100(c) until April 22. On April 7 the lower court granted this application but extended the time for trial not to April 22 but to May 27. On April 21, the day on which appellant's continuance expired, the case was called for trial. However, the Commonwealth was unable to commence trial; it had prepared the case as if it were to be tried without a jury, and when appellant demanded a jury trial, was unable to assemble a jury panel. A panel was assembled by Monday, April 24, and the trial commenced then.
Appellant argues that the lower court should not have granted the Commonwealth's application to extend the time
[ 282 Pa. Super. Page 162]
for trial because the Commonwealth failed to allege and prove due diligence as required by ...