NO. 319 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 1396-97, February Session, 1979.
Mary Willmann, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, P.j., and Cavanaugh, Rowley, Wieand, McEwen, Cirillo and Montemuro, JJ. Wieand, J., concurs in the result.
[ 315 Pa. Super. Page 547]
Appellant was convicted of theft by receiving stolen property*fn1 and unauthorized use of automobile*fn2 following a non-jury trial before Judge Michael E. Wallace who then proceeded to grant the motion of appellant for a new trial and to deny the motion in arrest of judgment. Appellant brought this appeal from the denial of his motion in arrest of judgment.*fn3 We affirm the order of the Common Pleas Court.
Appellant contends that he is entitled to be discharged since the Common Pleas Court erred when it granted a Commonwealth petition to extend the time for commencement of trial filed pursuant to Pa.R.Crim.P. 1100(c), for the reason that the finding by the court of due diligence on the part of the Commonwealth was predicated upon the consideration by the court of uncontested court records and of representations of counsel during an extension hearing. The issue appellant presents is whether the court, in determining whether the Commonwealth has exercised the due diligence required by Rule 1100(c), may during an extension hearing take judicial notice of uncontested court records. A
[ 315 Pa. Super. Page 548]
thorough consideration of this issue necessitates, of course, that we also consider the principles applicable to the concept of judicial delay under Rule 1100.
Appellant was arrested on February 6, 1979, and, on the same day, a complaint was filed charging him with auto theft and unauthorized use of auto. The calendar run date under Rule 1100 was, therefore, August 6, 1979.*fn4 The preliminary hearing was held on February 23, 1979 and appellant was held for court. A hearing on the motion of appellant to suppress physical evidence was held on May 30, 1979 and, at the conclusion of the hearing, Judge Nicholas A. Cipriani denied the motion and recused himself. The matter was next listed for July 13, 1979, before Judge Thomas N. Shiomos who recused himself after the assistant district attorney informed him that appellant had been found guilty of certain charges after a jury trial over which he had presided some six years earlier. At that proceeding, Judge Shiomos reviewed the file, indicated that he remembered appellant and proceeded to: (1) recuse himself; (2) note that the recusal posed a Rule 1100 problem; (3) note the need that the case be relisted for the "earliest date possible"; (4) note the unavailability of criminal court rooms; and (5) determine that the earliest possible date for the trial was August 15, 1979. Since the trial date of August 15 was beyond the August 6 run date, the Commonwealth filed, on July 17, 1979, a petition for extension of time within which to commence trial under Rule 1100(c);*fn5
[ 315 Pa. Super. Page 549]
appellant responded by filing, on August 1, 1979, an answer to the petition for extension and a motion to dismiss the charges under Rule 1100(f). A hearing was held on August 2, 1979 upon the Commonwealth petition to extend at the conclusion of which Judge Edward J. Blake extended the run date to August 17, 1979. Appellant in this appeal claims that the Commonwealth did not present such evidence of ...