NO. 2749 PHILA. 1981, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal No. Sept. 1980 - 66 & 67
Stanley E. Gever, Philadelphia, for appellant.
Mariana C. Sorensen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Hester and Brosky, JJ. Brosky, J., files a concurring opinion. Hester, J., files a dissenting opinion.
[ 337 Pa. Super. Page 392]
This appeal is from a judgment of sentence for risking a catastrophe and conspiracy. Appellant argues that the Commonwealth failed to establish its due diligence in bringing him to trial within the period prescribed by Pa.R.Crim.P. 1100, and also, that the evidence was insufficient to sustain his conviction of risking a catastrophe. We have concluded that the Commonwealth did not comply with Rule 1100, and that appellant must therefore be discharged. This conclusion makes it unnecessary to address appellant's second argument.
On November 20, 1980, appellant was brought to trial, but a mistrial was declared and trial was set for January 22, 1981. Rule 1100(e)(1) provides:
When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.
[ 337 Pa. Super. Page 393]
One hundred and twenty days from November 20, 1980, was March 20, 1981. Thus, appellant's new trial was set well within the period prescribed by Rule 1100.
However, on January 22, 1981, the case was called for trial before the judge who had declared the mistrial on November 20, 1980. Because of his earlier participation, the judge recused himself, and trial was set for February 5, 1981, still well within the period prescribed by Rule 1100.
When the case was called for trial on February 5, 1981, the Commonwealth requested a continuance because its complaining witness was ill. The request was granted, and trial was set for March 27, 1981, seven days outside the period prescribed by Rule 1100.
There is dispute about the legal significance of the order continuing the trial to March 27, and we shall discuss this dispute in a moment. Suffice it to say now that no transcript of the proceeding was made. The record is unclear but suggests that neither the judge who continued the trial nor the parties were aware that March 27 was outside the period prescribed by Rule 1100. At some point, however, the Commonwealth did become aware of that fact, for on February 10, 1978, it filed a petition to extend the period. The petition stated: "1/22/81, Judge recused self; Judge had previously granted mistrial and was not scheduled to sit on this date. 2/5/81, Commonwealth witness ill."
On March 18, 1981, a hearing was held on the Commonwealth's petition to extend. Appellant opposed the petition. The hearing was largely concerned with what had occurred on February 5. The Commonwealth argued that the order of February 5 continuing the trial had extended the period prescribed by Rule 1100.*fn1 Initially, the reaction of the hearing judge was that the case should be tried at once, i.e., on March 18, which was still two days within the period prescribed by Rule 1100. Thus the judge ...