No. 1010 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at 882-883. December Term, 1977.
Timothy J. Savage, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ.
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This is an appeal from a judgment of sentence for robbery*fn1 and simple assault.*fn2 Appellant argues that he should
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be discharged because his right to a speedy trial under Pa.R.Crim.P. 1100 was violated.*fn3
The complaint against appellant was filed on December 3, 1977. The case was first listed for trial on February 9, 1978, but the complaining witness could not be present because he had injured himself. The case was continued until February 28, at which time appellant tendered a plea of guilty. On March 6, the next listing, the court rejected appellant's plea. Appellant moved for a continuance until the next listing, March 28, and appellant executed a written waiver of his Pa.R.Crim.P. 1100 rights for the period of 22 days from March 6 to March 28. On March 28, the case was continued until April 27 because the complaining witness was not present. On April 27, the Commonwealth was ready to proceed, but appellant had not been brought to court from Graterford prison. The presiding judge, who had previously rejected appellant's guilty plea, recused himself and denied the Commonwealth's request to enter an order directing the sheriff to bring appellant to court immediately. The case was continued until May 23, at which time the complaining witness again was not present. The Commonwealth requested and was granted a bench warrant for the complaining witness. The court directed the district attorney to serve the warrant on the witness and continued the case until June 28. On May 25, the Commonwealth filed a petition to extend the time for trial until June 30. The petition alleged that the Commonwealth had exercised "due diligence" in bringing appellant to trial because it had been ready to proceed on February 28, April 27, and May 23, all dates before June 23, which the Commonwealth calculated to be the 180th day after the complaint was filed. (The Commonwealth's calculation extended the actual run date of June 1 by 22 days because it did not take into account that appellant had in March executed a written waiver of that period.) Appellant filed an answer denying that the Commonwealth had exercised "due diligence" in bringing him to
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trial. On June 16, after a brief hearing at which counsel reviewed the docket entries in the case, the court granted the Commonwealth's petition. On June 28, the next listing, the case was marked "Ready not reached," and continued until August 4. On June 30, the Commonwealth filed a second petition to extend, alleging that it had exercised "due diligence" in bringing appellant to trial because it was ready to proceed on June 28, but the court had continued the case until August 4. Appellant again filed an answer denying the Commonwealth's allegation. On July 20, after a brief hearing, the court stated that the delay on June 28 was "court delay" and that therefore the Commonwealth had acted with "due diligence," justifying an extension until August 8, four days after the next trial listing. Appellant argued that the Commonwealth had not shown that there were no alternative court rooms or dates that would have made trial possible before the last run date, June 30. Neither the court nor the Commonwealth, however, responded to this argument. On August 4, appellant was not ready to proceed because his witnesses were absent and the court granted him a continuance until September 14. On August 8, the Commonwealth filed a third petition to extend, this time until September 18. At the hearing on August 24, appellant did not object to the petition and the court granted it. On September 14, the next listing, the case was again marked "Ready not reached," and was continued until September 29. On September 15, the Commonwealth filed its fourth petition to extend, alleging that it had been ready to proceed on the previous day, and, therefore, had exercised "due diligence" in bringing appellant to trial before the extended run date. Appellant filed an answer denying the Commonwealth's allegation. On September 22, a hearing was held at which appellant argued that four cases with earlier run dates than appellant's had been tried on September 14, and that the Commonwealth had not attempted to relist appellant's case so that it would be tried before September 18, the extended run date. The Commonwealth objected to appellant's reference to the four other cases, but it made no response to the argument about its failure to
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relist the case. The court stated that the delay was "the Court's fault", and extended the run date until October 3. On ...