No. 765 October Term, 1979, Appeal from the Order in the Court of Common Pleas of Lehigh County, Criminal Division, No. 1068 of 1978.
Michael McIntyre, Assistant District Attorney, Allentown, for Commonwealth, appellant.
Gerald Roth, Allentown, for appellee.
Price, Watkins and Hoffman, JJ. Hoffman, J., files a concurring statement.
[ 280 Pa. Super. Page 408]
The Commonwealth appeals from an order of the Court of Common Pleas of Lehigh County per the Honorable David E. Mellenberg denying the Commonwealth's petition to extend the time for commencement of trial and discharging the appellee. The lower court predicated its order upon a finding that appellee's right to a speedy trial under Pa.R.Crim.P. 1100 had been violated. For the reasons stated herein, we reverse the order, reinstate the criminal charges against appellee, and remand to the court of common pleas for trial to commence within one hundred and twenty (120) days.
The relevant facts are as follows. A criminal complaint was filed against appellee on September 8, 1978, charging him with violations of The Controlled Substance, Drug, Device and Cosmetic Act*fn1 and conspiracy.*fn2 Appellee was arrested on September 11, 1978, and at a preliminary hearing held on September 21, 1978, the Commonwealth established a prima facie case on all charges. On October 23, 1978, three days prior to its scheduled date, appellee waived arraignment. The case was not listed for trial during the November, 1978 term of court in order to allow appellee thirty days in which to file an omnibus pretrial motion, pursuant to Pa.R.Crim.P. 307. No term of criminal court having been held in Lehigh County in December, 1978, the case was first listed for trial during the January, 1979 term. It was not reached during that term, however, and was relisted for trial on Wednesday, February 28, during the second week of the two-week term. At the call of the trial list on the morning of February 28, appellee's counsel informed the court administrator, Mr. Daniel Sabetti, that the case would probably be disposed of in a matter other than by
[ 280 Pa. Super. Page 409]
trial, since the parties were engaged in plea negotiations.*fn3 This caused Mr. Sabetti to remove the case from the normal course of order for trial.*fn4 Consequently, the case was not tried during the February trial term, which ended two days later on Friday, March 2.
Under the precept of Rule 1100,*fn5 trial had to commence by March 7, 1979, barring any exclusions of time under section (d)*fn6 of the Rule or any extensions of the commencement date granted under section (c) of the Rule. On March 7, the Commonwealth filed a petition to extend alleging, in effect, that despite its due diligence, the time consumed in attempting to finalize a plea agreement prevented trial from commencing during the February trial term and within the Rule 1100 period. Appellee filed a petition to dismiss pursuant to Rule 1100(f)*fn7 on March 8, alleging that 180 days had passed
[ 280 Pa. Super. Page 410]
since the filing of the complaint and that as a result, he should be discharged. A hearing on both petitions was held before Judge Mellenberg, and he issued an order on March 28, 1979, granting appellee's petition to dismiss and denying the Commonwealth's petition to extend on the ground that the prosecution failed to exercise due diligence to ...