No. 312 Philadelphia, 1981, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County at No. 932 of 1980.
Francis M. Walsh, Assistant Public Defender, Norristown, for appellant.
Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wieand, McEwen and Popovich, JJ. Wieand, J., concurs in the result.
[ 303 Pa. Super. Page 287]
This is an appeal by the appellant, Richard Walls, from the judgments of sentence entered by the Court of Common Pleas of Montgomery County. We affirm in part and vacate in part.
On appeal, appellant raises issues concerning: 1) violation of his right to a speedy trial under Pa.R.Crim.P. 1100; and 2) the propriety of the sentences imposed by the court below.
In reviewing the legitimacy of the Rule 1100 claim, a recounting of the facts is necessary. On March 13, 1980, as a result of an incident at the Girard Bank in Bala-Cynwyd, Pa., a complaint was filed against the appellant charging him with Robbery,*fn1 Criminal Conspiracy,*fn2 Theft,*fn3 Receiving
[ 303 Pa. Super. Page 288]
Stolen Property,*fn4 Possessing Instruments of Crime,*fn5 Prohibited Offensive Weapons,*fn6 Firearms not to be Carried Without a License,*fn7 Convict not to Carry Firearm,*fn8 Recklessly Endangering Another Person,*fn9 Terroristic Threats*fn10 and Simple Assault.*fn11 Appellant was arrested the same day, along with his cohort (Richard Hardy), for the commission of the aforementioned crimes. Given the date the complaint was issued, appellant was to be tried by September 9, 1980.*fn12 However, the record indicates that appellant's trial did not commence until September 18, 1980, nine (9) days after the run date. Such delay in prosecuting the accused is not per se fatal, provided, of course, the Commonwealth establishes that it exercised due diligence in bringing the appellant to trial. Proof of compliance with the due diligence standard must appear on the record, and failure to adhere to such requirement will justify the dismissal of the case with prejudice. This procedural requirement was enunciated by our Supreme Court in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), wherein the Court stated in unequivocal terms:
[ 303 Pa. Super. Page 289]
"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 must also show the causes of the court delay and the reasons why the delay cannot be avoided."
Id., 469 Pa. at 222, 364 A.2d at 1349-50.
Our review of the record indicates that appellant was arraigned on May 5, 1980, and that the case was listed for trial on June 5, 1980. However, on June 6th, the Commonwealth filed a Petition to Consolidate appellant's case with that of his co-defendant Hardy. In the record appears a form petition, captioned "Motion For Trial Postponement," which reads in relevant part:
"I. Motion is hereby made to postpone the above captioned case for the following reason(s): Pending Judge Vogel's decision on Commonwealth's motion to consolidate with Com v. Hardy
/s/ Henry Schireson 7-22-80 Com.
Sign. of Applying Counsel Date Representing
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