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filed: October 14, 1983.


No. 1933 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1323-1324 August Term, 1979


Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.

Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Wieand and Beck, JJ. Wieand, J., files dissenting opinion.

Author: Brosky

[ 320 Pa. Super. Page 152]

This appeal follows Mr. Bennett's conviction on charges of robbery and possession of an instrument of crime. The incident in question occurred on March 9, 1979 when a Philadelphia taxi driver was robbed at gunpoint by a black male who was accompanied by a black female. The perpetrators fled from the scene of the crime, but the driver, when shown photographs by the Philadelphia police, said that a photo of appellant looked like the man who committed the crime. Approximately three months later, on June 15, 1979, appellant was arrested and charged with having committed the robbery. He was tried before a judge and jury and convicted in February 1981 and sentenced to a term of imprisonment of 3 to 15 years on the robbery conviction; sentence was suspended on the other charge.

Appellant alleges several errors on appeal, but because we find merit in his allegation that his petition to dismiss the case for non-compliance with Pa.Rule Crim.Proc. 1100 should have been granted, we will not reach the remaining questions.

The procedural history of this case is not only complicated; it is also unique.

Appellant was arrested on June 15, 1979, on which date the complaint was filed. The automatic 180-day run date prescribed by Rule 1100 fell on December 12, 1979.*fn1 On September 16, 1980, trial having not yet commenced, the

[ 320 Pa. Super. Page 153]

    lower court granted a petition for extension of time filed by the Commonwealth and extended the period within which trial was to be held by sixty days. We believe that the court erred in granting this extension.

There is no dispute as to the timeliness of petitions to extend*fn2 filed by the Commonwealth. Petitions were filed on September 27, 1979 and December 5, 1979. Hearings were held on the extension petitions on July 16, 1980, August 28, 1980 and September 16, 1980 when the extension was granted. At those hearings, the procedural scenario was explained as follows.

From June 15, 1979 until August 10, 1979, appellant was not represented by counsel and was, therefore, the court found, unavailable for trial.

On August 10, counsel was appointed. The lower court found that the period between August 10 and August 22 counted towards the 180-day limit. That is, those 12 days "ran" against the Commonwealth.

Similarly, the 22 days between August 22 and September 13 are charged to the Commonwealth.

On September 13, the defendant failed to appear for a preliminary hearing. A bench warrant was issued.

On October 4, the lower court inadvertently ordered this case quashed. On January 8, 1980, the court rescinded its October 4 order. The period from September 13 to January 8 was counted against the appellant by the lower court. That is, it was excluded from the 180-day limit.

[ 320 Pa. Super. Page 154]

The court found that on January 30, 1980 appellant was served with a subpoena ordering him to appear in court on February 5, 1980. Although appellant disputes this finding, we will for the sake of argument, assume that in fact he was properly served.

Appellant failed to appear on February 5 and a bench warrant was apparently reissued on February 11 or February 13.

Appellant was located on April 30, 1980 in custody in Delaware County Prison.

A hearing was apparently scheduled on the Rule 1100 issue for May 9 or 19.*fn3 In either case, it was continued until May 27. At the July 16 Rule 1100 hearing, the prosecutor indicated that he did not know why the case was continued on that date.

The case was continued on May 27 to June 6. Again, no explanation was offered by the Commonwealth. The case was continued on June 6 to June 13, because, apparently, appellant was involved in a trial in Media, Pennsylvania.

The case was listed for June 13, June 25 and July 2 on all of which dates it was continued because the Quarter Sessions file could not be located. No explanation was offered as to its whereabouts or as to what efforts the prosecution made to secure the file and/or proceed to hearing.

On July 2, the appellant apparently sought a continuance. The first of three Rule 1100 hearings commenced on July 16.

We recently explained that our scope of review of orders granting petitions to extend requires us to consider the evidence presented by the Commonwealth and so much of the evidence presented by the defendant as, fairly read in the context of the record as a whole, remains uncontradicted.

[ 320 Pa. Super. Page 155]

See Commonwealth v. Ryan, 306 Pa. Super. 159, 452 A.2d 264 (1982).

It is clear that the burden of seeing that trial is commenced rests on the Commonwealth, not the defendant. See Commonwealth v. Brown, 497 Pa. 7, 11 n. 7, 438 A.2d 592, 594 n. ...

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