NO. 3337 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 80-06-1752, 1753.
Richard P. Myers, Assistant District Attorney, Philadelphia, for Com., appellant.
Maureen K. Rowley, Assistant Public Defender, Philadelphia, for appellee.
Wickersham, Wieand and Lipez, JJ.
[ 325 Pa. Super. Page 335]
Christopher Briggman was tried non-jury and was found guilty of theft by receiving stolen property*fn1 and unauthorized use of a motor vehicle*fn2 following an arrest while driving a stolen automobile on the streets of Philadelphia. The trial court granted Briggman's motion in arrest of judgment, holding that a pre-trial order granting the Commonwealth an extension of time under Pa.R.Crim.P. 1100(c) had been entered in error and that Briggman's trial had not been held timely. The Commonwealth appealed. We reverse.
Briggman was arrested and a complaint was filed on May 10, 1980. The Rule 1100 run date, therefore, was November 6, 1980.*fn3 Trial was listed for October 20, 1980. On that day the defense requested a continuance for the purpose of conducting additional investigation and expressly waived the time requirements of Rule 1100 until December 30, 1980. The case was relisted for trial on December 23. On that date, however, Briggman failed to appear for trial, and a bench warrant was issued for his arrest. On December 29, 1980, the Commonwealth filed a timely petition for an extension of time within which to commence trial; and a
[ 325 Pa. Super. Page 336]
hearing thereon was set for January 26, 1981. Before the hearing was held, Briggman had been found. On January 13, 1981, the bench warrant was withdrawn, bail was increased, and a new trial date was set for February 26, 1981. After hearing on January 26, 1981, the time for commencement of trial was extended until February 24, 1981, and the trial date was advanced to February 20. On February 20, 1981, the Commonwealth and the defendant were ready to proceed, but the case was not reached. Trial, therefore, was rescheduled for April 27, 1981. The Commonwealth then filed a second extension petition, which was heard on March 26, 1981 before the Honorable Maurice Sporkin. At this hearing it was stipulated that on February 20, 1981, when the case had not been reached, the District Attorney had requested and received the earliest possible trial date, i.e., April 27, 1981. It was also stipulated that on February 20, 1981, a case having a run date of February 27, 1981 had been called for trial prior to the instant case. As a result of this hearing, Judge Sporkin granted an extension until April 28, 1981. Trial was held and Briggman was found guilty on April 27, 1981 before the Honorable Marvin R. Halbert. Subsequently, Judge Halbert granted a defense motion in arrest of judgment because, in his judgment, Judge Sporkin had erred in finding that the Commonwealth had exercised due diligence in bringing the defendant to trial. He concluded that the February 20th calling of a case having a run date three days later than the instant case was inconsistent with the exercise of due diligence and required that Briggman be discharged.
It is by now well settled that a court may grant an extension of time to commence trial under Pa.R.Crim.P. 1100(c) where judicial delay prevents the Commonwealth from bringing a defendant to trial within the mandatory period despite its due diligence.
"[T]he trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the 'due diligence' of the prosecution, and (2) the certification that trial is scheduled for the earliest date consistent with the court's
[ 325 Pa. Super. Page 337]
business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record must also show the causes of the court ...