No. 3039 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 1988 nd 1990 April Term 1978.
Colie B. Chappelle, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting opinion.
[ 279 Pa. Super. Page 271]
Appellant was convicted, after a jury trial, of conspiracy*fn1 and aggravated assault.*fn2 On this appeal, he argues (inter alia) that he should be discharged because he was not brought to trial within the 180 day period set by Pa.R.Crim.P. 1100.
[ 279 Pa. Super. Page 272]
Appellant was arrested on December 14, 1977; the original Rule 1100 run date was thus June 12, 1978.
The case was slow to proceed for several months, primarily because the complainant had been seriously injured and was in and out of the hospital. A listing was cancelled when the courts were closed because of snow, and defense counsel failed to appear on another occasion. A lineup requested by the defense was not held until April 5, 1978. The preliminary hearing was held on April 21, 1978. The [appellant] filed a Discovery Motion on May 23, 1978 and his Omnibus Pre-Trial Motion was not filed until June 1, 1978, and was marked for "Time of Trial."
The next court listing was June 7, 1978. On that day the Commonwealth was not able to proceed because a Commonwealth witness was needed for the motion. The hearing on the motion to suppress was continued to June 29, 1978, apparently without objection by defense attorney. On June 12, 1978, the Commonwealth filed a petition to extend the running of Rule 1100.
A petition to extend filed on the last day of the mandatory period for commencement of trial is timely. Commonwealth v. Wharton, 250 Pa. Super. 25, 378 A.2d 434 (1977). On June 23, 1978, Judge Edward Blake granted the petition over defendant's objection on the above cited record and extended the Rule to June 30, 1978.*fn*
On June 29, 1978, a Commonwealth witness had not been subpoenaed so the suppression hearing was continued to June 30, 1978, before Judge I. Raymond Kremer. On June 30, 1978, Judge Kremer ...