No. 1018 Philadelphia, 1982, Appeal from the Judgment of Sentence of March 10, 1982 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 516 June 1981
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Montgomery and Cercone, JJ.
[ 328 Pa. Super. Page 518]
This is an appeal from the judgment of sentence imposed following appellant's conviction in a non-jury trial of theft by receiving stolen property and unauthorized use of an automobile. Appellant contends that the lower court erred in granting the Commonwealth's petition for extension pursuant to Pa.R.Crim.P. 1100(c).*fn1 We agree.
The complaint was filed on May 24, 1981. Hence, trial should have commenced no later than November 20, 1981, unless the period of delay beyond that run date was properly extended under Rule 1100(c). Appellant was arraigned on June 16, 1981, and the case was listed for trial on August 10, 1981. On that first trial date the Commonwealth was granted a continuance until September 22, 1981.*fn2 On the second trial date, September 23, 1981, the
[ 328 Pa. Super. Page 519]
case was designated "ready, not reached" because of the length of another trial which had an earlier Rule 1100 run date. Appellant's case was continued until November 16, 1981. On November 16, however, the arresting officer was ill and the case was continued until January 4, 1982. On November 18, the Commonwealth timely filed a petition to extend pursuant to Rule 1100(c). On December 15, 1981, appellant filed both an answer to the Commonwealth's petition and a motion to dismiss. There was no hearing held on the petition.
On January 4, 1982, the date set for trial the Honorable Bernard J. Avellino was unavailable because he was being administered the judicial oath of office. Appellant's case was continued to February 23, 1982, still without a hearing on the petition.
On January 5, the Commonwealth amended its petition to extend alleging Judge Avellino's unavailability on the preceding day and that the assistant district attorney had requested the case be relisted to the earliest possible date. Also on January 5, appellant filed an application for dismissal under Rule 1100. In addition, on February 1, appellant filed a supplemental motion to dismiss.
On February 23, after hearing stipulated evidence and argument, the trial judge granted the Commonwealth's petition to begin trial on the same day, February 23 and denied appellant's motion to dismiss. Appellant's non-jury trial immediately followed.
In Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-50 (1976), our Supreme Court enunciated the requirements which must be met before the ...