No. 77 E.D. Appeal Dkt. 1982, Appeal from the Order of the Superior Court of Pennsylvania, Dated April 2, 1982, in No. 2148 Philadelphia, 1980, Affirming the Judgment of the Court of Common Pleas of Lehigh County, at No. 923 of 1979, Pursuant to Order of the Supreme Court of Pennsylvania of September 15, 1982, Granting the Appellant's Petition for Allowance of Appeal, 298 Pa. Superior Ct. 640, 445 A.2d 202 (1982).
William H. Platt, Dist. Atty., Henry S. Perkin, Asst. Dist. Atty., Allentown, for appellant.
Lawrence B. Fox, Edward G. Foster, Bethlehem, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., files a concurring statement. Nix, J., files a dissenting opinion. Zappala, J., files a dissenting opinion.
This is yet another Rule 1100 case. Here the Commonwealth appeals by allowance the order of Superior Court, 298 Pa. Super. 640, 445 A.2d 202, affirming the grant of appellee, Barry Lee Terfinko's, Motion in Arrest of Judgment. Lehigh County Court of Common Pleas, en banc, had granted that motion based on its opinion that the Commonwealth had not shown due diligence in bringing appellee to trial. The court en banc concluded that the Commonwealth was, therefore, not entitled to the extension of time to commence trial which had been granted by the individual judge who had conducted the Rule 1100 hearing.*fn1 Because the facts of this case, as presented in the Rule 1100 hearing and the memorandum opinion of the hearing judge, demonstrate the Commonwealth had acted with due diligence,
we now reverse Superior Court and allow appellee's conviction to stand.
Appellee was charged by written complaint on July 28, 1979, with criminal charges of loitering and prowling at nighttime. Preliminary arraignment took place on the same date; a preliminary hearing was scheduled by the Magistrate for August 3, 1979. On that date, the hearing was continued in order to permit appellee to obtain counsel. It was then set for August 29, 1979, at which time additional charges involving the possession of marihuana were lodged against defendant.*fn2 All charges were heard on that date and appellee was bound over for court.
The transcript of appellee's hearing was received by the District Attorney's office on September fifth; the police report was received on September twelfth. On the twentieth of that month the information was prepared. The case was thereupon assigned to a prosecution team on September twenty-first. On October 23rd the information was filed with the Clerk of Courts. Arraignment was waived and an appearance entered by appellee's counsel on November 1, 1979.
There being no trial court of any nature convened in Lehigh County in November of 1979, appellee's case was listed for December sixth in the next trial week. Record, Transcript of Rule 1100 Hearing, February 11, 1980, p. 21. The case was not reached for trial on that date, nor was it reached the next day. It was next listed for trial on January 23, 1980, but not reached during that week. On January 7, 1980, the Commonwealth filed a timely petition to extend the time for trial. Hearing on that petition was set for February 11, 1980.
Appellee's counsel was advised by the Court Administrator on January thirtieth to be in ...