No. 81-3-365, Appeal from the Order of the Superior Court, dated November 7, 1980, October Term, 1978, No. 2782, Reversing the Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, October Session, 1977, Nos. 2475 and 2478 and Discharging Defendant, 282 Pa. Superior Ct. 157,
Roberts, C.j., and Nix, Larsen, Flaherty, Hutchinson and Zappala, JJ. McDermott, J., did not participate in the consideration or decision of this case. Larsen, J., joins in this opinion and files a concurring opinion in which Hutchinson, J., joins. Zappala, J., files a concurring opinion.
This is a Commonwealth appeal, by allowance, from the Order of the Superior Court, 282 Pa. Super. 157, 422 A.2d 876, which reversed the judgments of sentence entered by the Court of Common Pleas of Philadelphia and discharged appellee, Aaron Mines, because of an asserted Rule 1100 violation. Pa.R.Crim.P. 1100.
Appellee was tried and convicted of robbery and conspiracy arising out of an armed hold-up of a number of persons engaged in a dice game outside of a Philadelphia grocery
store on September 26, 1977. On September 27, 1977 the criminal complaint was filed and the original run-date for purposes of Rule 1100(a)(2)*fn1 was March 27, 1978.
After three continuances,*fn2 a preliminary hearing was held on October 28, 1977. Appellee was arraigned on November 15, 1977. On December 2, 1977, upon appellee's request, a continuance was granted until December 29, 1977. On December 29, 1977 the Commonwealth was granted a continuance until February 2, 1978 because one of the arresting officers had been injured on duty. On February 2, 1978, another continuance, until February 15, 1978, was granted because one of the complaining witnesses failed to appear. On February 16, 1978, appellee's motion to suppress was heard. On March 9, 1978, appellee requested a continuance, granted until April 21, 1978, in order to obtain the notes of testimony from the suppression hearing. On March 15, 1978, the Commonwealth filed a petition to extend the time for trial, pursuant to Rule 1100(c), until April 22, 1978. An answer was filed by appellee's attorney and on April 7, 1978, after a hearing, the court granted the petition and extended the run-date until May 27, 1978.*fn3
On Friday, April 21, 1978, appellee's case was called for trial in a jury "waiver" courtroom. When the proceeding began, appellee for the first time requested to be tried by a jury. Because of the lateness in the day, a jury could not be assembled. The case was therefore sent to the jury listing
courtroom and a jury trial began on Monday, April 24, 1978, the very next court day. Appellee was convicted. On appeal, a panel of the Superior Court*fn4 held that the lower court improperly granted the Commonwealth's March 15, 1978 petition to extend the time for trial because of the Commonwealth's failure to allege and prove due diligence as required by Rule 1100(c).*fn5
The Superior Court panel, invalidating the extension, then held the new run date should have been April 21, 1978, the date on which appellee's request for continuance expired.*fn6 Therefore, according to the panel, because trial did not begin until April 24, 1978, Rule 1100 had been violated and appellee was discharged. The panel also rejected the Commonwealth's argument that appellee's decision to request a jury on April 21, 1978 was unexpected and that the Commonwealth exercised due diligence in empaneling a jury and proceeding to trial on the very next day of court, April 24, 1978.*fn7 Judge Van der Voort dissented from the holding of the majority that trial did not commence until Monday, April 24, 1978, and would have held trial to have commenced on Friday, April 21.
On appeal to this Court, the Commonwealth does not challenge the Superior Court panel's conclusion that the March 15, 1978 petition to extend the time for trial was erroneously granted. Rather, the Commonwealth argues that (1) appellee waived the Rule 1100 issue as it related to the alleged one day delay between Friday, April 21, 1978 and Monday, April 24, 1978 because he did not file a motion to dismiss the charges; (2) for purposes of Rule 1100 trial "commenced" on Friday, April 21, 1978 and (3) the delay was attributable to appellee's requested ...