No. 2685 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, No. 281. January Term, 1978.
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Johnson and Montemuro, JJ. Hester, J., files dissenting statement.
[ 313 Pa. Super. Page 41]
Unfortunately, because of Pa.R.Crim.P. 1100, we must, for the reasons which follow, reverse the court below and discharge appellant who received a fair trial and who is guilty as charged. In this case, it is a mere four days that allows this appellant to say to himself, probably behind a hand hidden smirk, "what a crazy system." It is the kind of subservience to form over substance that brings about disrespect for the law and an understandable frustration on the part of all law abiding citizens. However, we must follow the law as enunciated by the Supreme Court and for that reason this appellant will be discharged.
Appellant, Joseph Hill, was found guilty following a non-jury trial of theft by unlawful taking*fn1 and receiving stolen property.*fn2 Subsequent to the denial of post-trial motions, appellant was sentenced to a term of eleven and one-half (11 1/2) to twenty-three (23) months imprisonment. On October 31, 1978, appellant filed an appeal to this court contending that the lower court improperly granted two Commonwealth petitions for extension and, as a result, he
[ 313 Pa. Super. Page 42]
was not tried within the appropriate 180 day time period. See Pa.R.Crim.P. 1100(a)(2) and (c).
On January 4, 1980, this court entered a Per Curiam Order remanding the case to the lower court for the purpose of conducting an evidentiary hearing on the Rule 1100 issue, and thereafter, to either grant or deny appellant's motion to arrest judgment. Commonwealth v. Hill, 273 Pa. Super. 428, 417 A.2d 723 (1980).
On January 25, 1980, appellant filed a petition for allowance of appeal to the Supreme Court from this court's January 4 order, which was denied on September 17, 1980.
On September 23, 1980, the record was remanded to the court below.
On March 5, 1981 and April 27, 1981 the court below conducted hearings on the matter.
On August 4, 1981, the record was resubmitted to this court including the certified notes of testimony from the hearings held on the Commonwealth's petition for extension on July 6, 1978 and August 17, 1978.*fn3 Apparently, these notes were not made part of the record the first time the case was on appeal. We now address appellant's claim.
[ 313 Pa. Super. Page 43]
Specifically, appellant contends that the Commonwealth failed to prove due diligence at the extension hearings and that the Commonwealth, at the remand hearing, merely reiterated what it had stated at the second extension hearing without further proof. The facts relevant to the question raised by appellant are as follows:
Appellant was arrested and formally charged on December 15, 1977. His trial, however, did not begin until August 29, 1978 some 77 days after the original run date of June 13, 1978.
In its first petition for extension filed on June 8, 1978, the Commonwealth set ...