No. 80-3-707, Appeal from the Order of the Superior Court, dated June 20, 1980 at October Term, 1978, No. 2852, affirming the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section
Eric B. Henson, Deputy Dist. Atty., Philadelphia, for appellant.
John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., files a concurring opinion. Zappala, J., files a dissenting opinion.
On September 13, 1976, appellee John Guldin was arrested and charged with arson and other related offenses in connection with a fire that was set to appellee's home the night before in Philadelphia, which spread to six surrounding homes and endangered the lives of nearly twenty people in that area.
In accordance with Pa.Rule of Criminal Procedure 1100(a)(2),*fn1 appellee was required to be brought to trial on or before March 13, 1977. At a status listing conference on February 10, 1977, the trial judge extended the Rule 1100 run-date from March 13, 1977, until May 1, 1977.*fn2 Thereafter, appellee twice personally waived his Rule 1100 rights, on April 14 and July 29, 1977, and was thereafter brought to trial on September 20, 1977. At a bench trial, appellee was convicted of three counts of arson and of related offenses, but was granted a new trial by the trial judge, based upon appellee's allegations of trial error. At retrial on July 17, 1978, appellee, represented by new counsel, was again convicted at a bench trial of all charges. However, on November 2, 1978, the trial judge granted appellee's post-verdict motion in arrest of judgment and ordered the appellee
discharged. The trial judge's ruling was premised on a finding that appellee's Rule 1100 rights had been violated prior to his first trial when appellee's counsel failed to object to the trial court's recalculation of the Rule 1100 run date, since appellee had not personally waived his Rule 1100 rights. The Commonwealth of Pennsylvania, as appellant in this matter, appealed that decision to the Superior Court, which affirmed the lower court's determination. From that decision,*fn3 we now reverse.*fn4
A close examination of the record of the status listing conference of February 10, 1977, when the Rule 1100 run-date was extended reveals the following: Appellee's counsel initiated the conference by advising the court and the prosecutor that his client had voluntarily entered Eagleville Hospital for rehabilitation treatment for drug and alcohol abuse, and that his client would be receiving treatment for the ensuing two months. Since the Rule 1100 run-date was March 13, 1977 and appellee would still be undergoing his hospitalized rehabilitation at that time, defense counsel told the court, "[u]nder these circumstances, I do not believe I would resist a motion from the district attorney if they wanted to extend the 180 day Rule, your Honor." Record, 2/10/77 at p. 2. When the court inquired of the prosecutor whether he was going to file a petition to extend, the prosecutor was not given full opportunity to answer the question. Rather the trial judge intervened and incorrectly*fn5 extended the run-date by 49 days. Thereafter, the prosecutor noted for the record, "I would state, we were ready to go to trial, we always have been ready to go on trial on this case." Record, 2/10/77 at p. 5.
In addition, the record shows that appellee's counsel at the first trial had several reasons -- all designed to effectuate his client's best interest ...