No. 2853 October Term, 1978.
Steven H. Goldblatt, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
Neil P. Greenberg, Philadelphia, for appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 279 Pa. Super. Page 453]
The Commonwealth appeals from the order of the lower court that granted appellee-defendant's post-trial motions and discharged defendant on the basis that his speedy trial rights under Pa.R.Crim.P. 1100 had been violated. We reverse the order of the lower court and remand for further proceedings.
Criminal complaints were filed against appellee on April 28, 1977 and May 6, 1977, charging him with robbery, conspiracy, assault, theft, and unauthorized use of an auto. According to Pa.R.Crim.P. 1100(a)(2),*fn1 the Commonwealth had to bring appellee to trial on these complaints by October 25, and November 6, 1977, respectively. Appellee's trial on both complaints began on December 1, 1977, which was outside the time period of the 180 day rule. Therefore, the burden rested on the Commonwealth to prove that the time beyond the 180 day period was properly excluded from the run period by the Commonwealth's timely filing of a petition to extend,*fn2 or by other exclusionary provisions of Rule 1100.*fn3 Commonwealth v. Clark, 256 Pa. Super. 456, 390 A.2d 192 (1978).
[ 279 Pa. Super. Page 454]
Although the record is confused, the following sequence of events appears to have occurred in this case. On October 24, 1977, the Commonwealth originally filed two petitions for extensions of time as to both complaints. These were timely filed before the run date of October 25 as to the first complaint. Appellee did not file an answer to the petitions nor is there any indication or argument that appellee or his counsel were improperly served with a copy of these petitions. A hearing was held on November 4, 1977, and an extension granted until November 9, 1977.
On November 4, 1977, the Commonwealth petitioned for a second extension of time as to both cases. Once again, appellee failed to answer the petition. A hearing was allegedly held on November 28, 1977, and either the extension was granted or the hearing continued until December 2, 1977.*fn4 On December 1, 1977, trial began as to both complaints. On December 5, 1977, the third day of trial, defense counsel moved for a mistrial on the basis that Rule 1100 may have been violated. He contended that the record indicated that the Commonwealth's petition to extend filed on November 4 had been granted when, in reality, no extension was granted and the hearing on that petition had been continued until December 2, 1977. Defense counsel argued that this is why he had not contested the petition, since he expected to have that opportunity on December 2. The motion for mistrial was denied and appellee was convicted on all counts.
On December 14, appellee's counsel filed post-trial motions alleging detailed Rule 1100 violations. The lower court judge arrested judgment and ruled that the petitions for extension of time by the Commonwealth were improperly granted and that defendant's "failure to answer and deny petitions as general and empty as [those filed by the Commonwealth] meant nothing." Based on this finding, along with additional reasons as to why the extensions should not have been granted, the trial court discharged appellee.
[ 279 Pa. Super. Page 455]
On appeal, the Commonwealth argues that any contention that Rule 1100 was violated has been waived by defense counsel's failure to either answer the Commonwealth's petitions for extension or file a petition to dismiss pursuant to Rule 1100(f). The rule itself and numerous ...