No. 3233 Philadelphia, 1981, Appeal from the Judgment of Sentence of November 25, 1981, In the Court of Common Pleas of Berks County, Criminal Division, No. 80044001.
Stephen Gary Welz, Reading, for appellant.
George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
Cercone, President Judge, and Cavanaugh and Rowley, JJ. Rowley, J. files a dissenting statement.
[ 313 Pa. Super. Page 226]
Appellant, William E. Singleton, appeals from the judgment of sentence following his conviction for Theft by Deception,*fn1 by which he was sentenced to pay a fine of $100.00, restitution of $150.00, and to undergo a period of incarceration of from six to twenty-four months. He argues on appeal that the Commonwealth failed to establish due diligence when it sought a petition to extend time pursuant to Pa.R.Crim.P. 1100, and, that, therefore, the lower court erred when it granted the Commonwealth's petition.*fn2 Finding merit in his argument, we reverse.
A criminal complaint on the instant charge was filed against appellant on January 31, 1980. Numerous related and unrelated informations were filed against appellant. This case was listed to be tried during the June jury trial sessions of Berks County, but remained untried owing to an overcrowded court calendar. It was rescheduled for a trial date in July, but counsel for appellant continued it until the August term; he alleged that the jury panel was tainted
[ 313 Pa. Super. Page 227]
and that he needed more time in which to prepare his case. July 29, 1980 was the rundate of the 180 day period within which appellant was to be tried, and on that date the Commonwealth filed a petition to extend time.
On August 6, 1980, the lower court granted the Commonwealth's petition to extend time and ordered that three of appellant's criminal actions be listed for trial in the August sessions, between August 11 and 22, in the order in which the Court named them. The instant action was listed last. The first case was tried during the week of August 11; the second began on August 18 and the jury returned a verdict the next day. Evidence elicited at a hearing pursuant to the Commonwealth's second petition for extension of time under Rule 1100 established that the prosecutor who was assigned to try the instant case in August went on vacation on August 20, 1980. Additionally, appellant was available from August 19 for the duration of the trial term, August 22, 1980. However, a jury for the instant case would have been chosen from the same panel which provided the jury which convicted appellant on August 19. For this reason, the lower court granted the Commonwealth's second petition and ordered that
despite due diligence of the Commonwealth, the trial of the above-captioned cases could not commence and to avoid more than one trial jury being selected from the same jury panel that one trial of each of the above-captioned cases or one trial of any two or more of the above-captioned consolidated cases be held each week during the successive weeks of jury trials until all the cases are disposed of, beginning with case No. 80044001 [the instant case] during the week of September 8, 1980, unless otherwise ordered by the Court for cause shown upon application of either party.
It is this extension which appellant argues violated his right under Rule 1100 to a speedy trial.
The scope of review on appeal from an order granting a petition to extend requires the appellate court to consider the evidence ...