No. 2472 October Term, 1978, Appeal From Judgment of Sentence Entered August 31, 1978 By The Honorable Thomas A. White, J., Common Pleas, Philadelphia County, Criminal Trial Division, November Term, 1977, Nos. 0361-5
Elias B. Landau, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Chief Appeals, Philadelphia, for Commonwealth, appellee.
Wieand, Robinson and Louik, JJ.*fn*
[ 277 Pa. Super. Page 146]
The Appellant in this case was arrested on or about October 25, 1977, and on June 28, 1978 he was found guilty of the following offenses: Robbery, Possessing Instrument of Crime Generally, Criminal Conspiracy, Simple Assault, and Carrying Firearm on Public Streets or Public Property. Appellant was sentenced to three years probation on the robbery and criminal conspiracy charges, the said probations to run concurrently, and sentence was suspended on the other charges. Appellant has raised the following issues on appeal: (1) improper denial of motion to suppress; (2) violation of Rule 1100; (3) failure of trial judge to grant greater latitude in cross examination of complainant and (4) sufficiency of the evidence. A review of the record indicates failure to comply with the requirements of Rule 1100. Therefore, in light of our holding that there was a violation of Rule 1100, it becomes unnecessary to rule on the other issues raised. The relevant portion of Rule 1100 of the Rules of Criminal Procedure provides as follows:
"(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth
[ 277 Pa. Super. Page 147]
may apply to the court for an order extending the time for commencement at trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced."
The lower court in its Opinion sets forth the facts with respect to Rule 1100 as follows:
"The original expiration date for Rule 1100 was April 25, 1978. Prior to that time, there had been two defense continuances and in fact, the defendant waived his rights under Rule 1100 from April 19, 1978 until May 31, 1978. The Commonwealth filed a timely petition which was heard by Judge Blake on June 16, 1978. Judge Blake extended the run date to June 30, 1978. Trial commenced on June 29, 1978. There was, in the Court's opinion, compliance with the requirements of Rule 1100."
In Commonwealth v. Mayfield, 364 A.2d 1345, 469 Pa. 214, the Supreme Court held:
"Henceforth, the trial court may grant an extension under Rule 1100(c) only upon a record showing: (1) the 'due diligence' of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record ...