No. 1523 Phila., 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at Criminal Action Nos. 656, 656.2 January Term, 1975.
Stanley M. Shingles, Philadelphia, for appellants.
Ronald T. Williamson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Montemuro and Watkins, JJ. Montemuro, J., concurs in the result.
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On September 24, 1976, appellants were sentenced to probation and fined following their convictions for attempted theft and criminal conspiracy. In their post-trial motions, they assigned more than thirty points of error. These motions were denied by the lower court and an appeal followed. Several issues were presented on appeal, but this Court addressed itself only to the initial issue of whether the Commonwealth exhibited the due diligence required to warrant several extension of time for trial pursuant to Pa.R.Cr.P. 1100. We found that the appellants were not afforded a full and complete hearing on the Rule 1100 issue and remanded the case for such a hearing. Commonwealth v. Waldon, 259 Pa. Superior Ct. 129, 393 A.2d 751 (1978).
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On May 27, 1980 following the hearing directed by our order, the court below found that the Commonwealth complied with Rule 1100 and exercised due diligence and the judgment of sentence was reaffirmed.
An appeal was again taken and this Court affirmed on the opinion of the lower court. Commonwealth v. Waldon, (1982). Appellants then petitioned for reargument en banc on the basis of our Court's failure to address the numerous issues presented in addition to those concerning Rule 1100 when we affirmed on the lower court's opinion. The lower court opinion dealt only with the results of the hearing with respect to the Rule 1100 issue. Reconsideration was granted and we now address the additional issues presented.
At the outset we reaffirm our position that the lower court correctly decided that the Commonwealth exercised due diligence in petitioning for an extension of time within which to commence trial under Rule 1100. The trial court cited Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976) in support of the grant of the extension due to judicial backlog. That case is certainly still valid. Even more recently, the Supreme Court has reaffirmed the proposition that where a backlogged docket prevents a case from going to trial within 180 days an extension of several weeks is appropriate. See Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983). The facts involved here are similar and we are not persuaded that the lower court erred in its evaluation of the evidence presented at the hearing on the Rule 1100 extension.
Similarly, we find appellants' claim of prosecutorial misconduct in conjunction with the application for extension without merit. Appellants cite Commonwealth v. Long, 258 Pa. Superior Ct. 251, 392 A.2d 779 (1978) in support of their contention that the petition for extension should have been dismissed because of prosecutorial misconduct. Because the Long case involved a grant of an extension without a hearing, it is not applicable to the facts involved here. Appellants in the instant case had a hearing after
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remand and ample opportunity during that hearing to expose so-called prosecutorial misconduct. The lower court was not persuaded that anything of the sort ...