Appeal from the Order of the Superior Court dated February 1, 1985, at No. 441 Pittsburgh 1983, Vacating the Judgment of Sentence of the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Division at Criminal Action No. 434 of 1982, 341 Pa. Superior Ct. 617, 491 A.2d 920 (1985)
Gerald R. Solomon, Dist. Atty., Ewing Newcomer, Asst. Dist. Atty., Uniontown, for appellant.
Alphonse Lepore, Jr., Office of Public Defender, Jack R. Heneks, Jr., Uniontown, for appellee.
Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., joins in this opinion and files a concurring opinion. Zappala, J., files a dissenting opinion. Nix, C.j., did not participate in the consideration or decision of this case.
The Commonwealth appeals by allowance Superior Court's order of February 1, 1985, vacating the judgment of sentence imposed upon appellee Phillip T. Monosky by the Court of Common Pleas of Fayette County. Commonwealth v. Monosky, 341 Pa. Superior 617, 491 A.2d 920 (1985). After a non-jury trial, appellee was convicted of charges of driving under the influence of alcohol or controlled substance,*fn1 failing to drive at a safe speed*fn2 and
possession of a prohibited offensive weapon.*fn3 The trial court denied appellee's motion for a new trial and in arrest of judgment. Appellee appealed to Superior Court arguing that he was not timely tried pursuant to Pa.R.Crim.P. 1100 (Rule 1100) and that there was insufficient evidence to support the verdict. That court concluded that the trial court erred in granting the Commonwealth's request for an extension and that the case should have been dismissed under Rule 1100.*fn4 We now reverse Superior Court and remand the case to that court for consideration of appellee's argument regarding sufficiency of the evidence.
Appellee was notified of the above charges by complaint dated January 31, 1982. A preliminary hearing was held before a district justice on February 19, 1982. At that time, the district justice found that the evidence established a prima facie case, and appellee was bound over for court.
The district attorney was first made aware of this case when the transcript for the preliminary hearing was filed with the Clerk of Courts on July 16, 1982, approximately 165 days after the complaint was issued. On July 29, 1982,*fn5 the district attorney petitioned the trial court for an extension of time pursuant to Rule 1100.
A hearing was held on August 30, 1982, on the Commonwealth's motion. In regard to the delay in filing the transcript, the assistant district attorney stated, "In discussing the matter with Magistrate Nicholson, he advised me that he would not be able to extend to this court any reason for the delay other than that the papers were misplaced or mislaid within the Magistrate's office." N.T. August 30, 1982, at 1-2.
We are presented, therefore, with the issue of whether unexplained delay on the part of a ...