No. 262 Pittsburgh, 1980, Appeal from the Judgment of Sentence on the Third Day of March, 1980, Court of Common Pleas, Criminal Division of Blair County, Pennsylvania at C.A. No. 540 of 1978.
Norman D. Callan, Altoona, for appellant.
Charles P. Wasovich, Assistant District Attorney, Altoona, for Commonwealth, appellee.
Brosky, DiSalle and Shertz, JJ. This case was decided prior to the expiration of Shertz, J.'s commission of office. DiSalle, J., did not participate in the consideration or review of this case.
[ 295 Pa. Super. Page 426]
The sole question raised by Appellant is whether the court below erred in granting the Commonwealth's petition for extension pursuant to Pa.R.Crim.P. 1100(c) and in denying Appellant's petition to dismiss. We answer that question in the affirmative and, hence, reverse the order of the court below denying and dismissing Appellant's petition to dismiss the charges pursuant to Pa.R.Crim.P. 1100(f).
The salient facts are as follows. Appellant was arrested on May 4, 1978, upon a complaint filed on the same date.*fn1 Following a preliminary hearing and arraignment, the matter was scheduled for a jury trial to be held on August 23, 1978, but the trial was continued at the Commonwealth's request.*fn2 The case was then re-scheduled for trial on October 26, 1978, during the October Term of criminal jury trials.
On November 8, 1978, the Commonwealth's petition for extension pursuant to Pa.R.Crim.P. 1100(c) alleged due diligence on the part of the Commonwealth and stated:
This matter was scheduled for August 23, 1978; however, due to the backlog of the criminal docket, this matter was not reached. This matter was again scheduled for October 26, 1978, but again was not reached due to the backlog of the criminal docket.
[ 295 Pa. Super. Page 427]
Appellant denied that the Commonwealth exercised due diligence to bring the case to trial and under New Matter averred:
The term of Court at which this case was last scheduled, ended Friday, November 3, 1978. The jury panel was dismissed on Thursday, November 2, 1978. This case was involving (sic) a third degree misdemeanor, and trial of the cause would take now [sic] longer than one (1) day. The matter could have been held within the last trial term, had the jury not been prematurely dismissed.
A hearing on the petition was scheduled for November 22, 1978. Although Appellant and the Commonwealth agree that a hearing was held on the petition, the docket entries and the record do not so reflect.*fn3 Despite ...