*1 endeavor, (1977). In this conceived judicially justification substitute for the Common- extension cannot serve as a wealth’s Ehredt. affirmative under Commonwealth v. duty 178, Miller, 238 (1979). We find Pa.Super. failed to make a record showing Commonwealth due followed in the instant case is diligence. procedure when measured the standards set woefully inadequate by forth in section of Rule 1100 and Commonwealth v. As a we must Mayfield, supra, its view progeny. the December 16 order the Commonwealth an granting extension of time to February as a nullity. See Warman, unaltered, Left supra. v. the run date for Rule 1100 purposes January because trial did not commence appellant was entitled to rule. discharge Viewed this light, was error for the pleas grant court of common extension on the Commonwealth’s filed on untimely petition Ellison, see 249 Pa.Super. (1977), A.2d 325 and it was also error for the court to dismiss filed appellant’s timely petition discharge on April 11, 1977. we vacate the sentence
Accordingly, order appellant discharged.
Submitted Oct.
Filed Nov. *2 Nedell, Erie, for appellant. S. Jay Erie, for Moore, District Attorney, John H. Assistant Commonwealth, appellee. PRICE, WATKINS,
Before JJ. HESTER HESTER, Judge:
This appeal sentence of the judgment Court of Common Pleas of Erie County. after a was convicted of
Appellant, attempted and loitering night time. Post burglary prowling verdict motions were denied sentence of five to jail ten years imposed.
Appellant asserts that was denied his right he to a speedy trial, as mandated Pa.R.Cr.P. 1100(a)(1),thus requiring his discharge. We and therefore will disagree affirm the sentence. herein was filed on 1973. The case scheduled for trial on 1974. On that However, Commonwealth was ready proceed. de- *3 fense counsel could not because the case of proceed another defendant he was called for trial represented the same day. Later dismissed, was day, entire thus jury panel more making impossible juries select any term. Erie next trial term County’s Since was in May, appellant’s 15, trial was rescheduled for May 1974. run for Rule 1100 from the date the purposes, filed, 7, was
complaint was 1974.1 On filed a May appellant motion to dismiss under Rule 1100(f). The case was continued pending the outcome of appellant’s motion. Defense counsel and the district submitted a stipulation facts regarding motion on 15, 20, January 1975, 1975. On January appel- lant’s motion was denied. contends he was not
Appellant that since tried within 270 days the date the was filed and the complaint Common- 1100(a)(1) provides 1. Pa.R.Crim.P. in a court case in “[t]rial complaint which a written is filed the defendant after June 30, 1973 but before 1974 shall commence no later than two seventy (270) days hundred from the date on which the is filed.” continuance, motion for a his to dismiss wealth never moved should have been granted. stage The actual disagree. period
We
to the
“unavailability
of the
attributable
proceedings
excludable from
automatically
defendant or his
attorney”
rule or
1100(a)(1)
day
the time limits of Pa.R.Cr.P.
—270
Shelton,
Pa.
1100(a)(2)
rule. Commonwealth
—180
8,
Instantly ready within the 270-day with trial on 1974—well the next proceed. limit. not Thus Defense counsel could was available trial date May was necessary. continuance 1100(d)(1), Under Rule no not delay. Appellant This judicial was not case of be could not tried within because counsel days then not be held trial could Whatever the reasons present. counsel appellant’s fact May, original remains — the resultant unavailable, fostering delay. thus we those exclude “counting” days, Therefore 21,1974 15,1974. which fell days between Millhouse, See Commonwealth dismiss was Thus, inopportune; (1977). motion before expired for the 270 would not have the result reached “harsh” or unfair in We see nothing with cases. overflowing here. Our criminal courts are *4 months in ad- planned, must be precisely Court calendars date on the vance. Where a defendant cannot proceed fault, charge we see no reason to assigned, through his own Commonwealth, when the court the to subsequent the few months later. does trial a permit schedule not of affirmed. sentence Judgment PRICE, J., a dissenting opinion. files PRICE, dissenting: Judge, trial on was February appellant
After a jury and and attempted burglary1 loitering prowling convicted trial and in Post-trial for a night time.2 motions new denied, and were was sen- appellant arrest minimum totaling tenced to a term of a imprisonment years. five and a maximum of ten years that he On contends was denied his appeal, appellant right a under 1100(a)(1),3 to trial Pa.R.Crim.P. that as speedy a he be I appellant’s should with discharged. agree contention, and therefore respectfully dissent.
The facts to our consideration of pertinent appellant’s Rule 1100 are A was complaint claim as follows. filed on against him with the appellant July charging offenses of he was convicted. On Feb- subsequently which commence, trial was to ruary date on which a appellant’s was attend due to in counsel unable to conflict to-wit, on schedule, he another case that was trying day. The trial in other case lasted one only day, terminating During afternoon of 21. the afternoon of H. Carney President Edward dismissed Judge rendering impossible the entire panel, thereby select any more cases trial juries try term. The next trial term May, 15,1974. for filed a Appellant rescheduled motion 9, 1974,5 to dismiss Rule on 1100(f)4 the case 1. 18 Pa.C.S. 3502. §
2. 18 Pa.C.S. 5506. § 1100(a)(1) provides 3. Pa.R.Crim.P. court case in “[t]rial complaint which a written is filed the defendant after June 1973 but before 1974 shall commence no later than two (270) seventy hundred date on which the filed.” 1100(f) provides 4. Rule that: attorney “At may time before the defendant or his apply dismissing charges preju- to the for an court order with ground dice on copy that this Rule has been A violated. application upon such shall be served the Com- monwealth, right who shall also have the heard be thereon. page See note 5 on *5 478 of appellant’s petition. disposition pending continued 20, 1975, until January was not denied
Appellant’s petition 10, on and trial commenced subsequently had 270 or the Commonwealth 1100(a)(1), Rule Under The Commonwealth 7, 1974, try appellant. to April 15, 1974, was May to caused rescheduling contends that the counsel, therefore, unavailability the of by of time from period the 1100(d)(1) Rule from calcula- be excluded under should I purposes. disagree. time for Rule tion the run of the for commence- determining period 1100(d), Under “[i]n therefrom period be excluded such ment of there shall (1) as results from: the stage proceedings of delay ” or . . the defendant the unavailability case, was rescheduled for In the trial the instant dismissed; as no a had been panel because the .jury conducted the have been further trials could is more difficulty term. This scheduling of delay than a due nature of a judicial the properly cases of our court supreme to counsel’s unavailability. the may provide difficulties scheduling have made clear that pursuant to Section the of an extension request basis for the basis for exclusion of Rule, do not provide but v. Morgan, time (d)(1). under Section Shelton, (1979); Pa. (1976). Shelton, it clear that a for an supra, request we made “In could not delay’ provide upon ‘judicial extension based we ‘Since have (d). basis for an exclusion Section a basis for may serve as “judicial delay” determined that (c), to Section pursuant for an extension granting created the dicta allegedly substantial impairment charges granting application with Any such shall dismiss order prejudice discharge the defendant.” filing following a of written 270th was the appellant. majority opinion Court’s the Common- Superior wealth’s is not now a right prosecution effectuate valid consideration in whether de- determining “judicial *6 should be excluded from the lay” computation impliedly which to commence mandatory period in trial. Since “ removed, . . rule has been . our impairment the Commonwealth with provides adequate procedural protect right (to method to its effectuate a prosecution), mainly by obtaining extensions under Section of the ” O’Shea, rule . . . Commonwealth supra, 465 [491] O’Shea, at supra, n.7, “ . . .we [872] can perceive n.7. Therefore, no reason to as in an additional exclusion.” imply v. Shel- [Commonwealth ” ton, 469 Pa. at supra, Common- 699]’ 126-127, wealth v. Morgan, 484 Pa. at supra, A.2d at case, In the instant Commonwealth filed no petition Thus, extension under the Rule. with the run time unaltered, the run date for Rule 1100 purposes was the 270th e., i. complaint, April 7, 1974.6 Viewed in this light, appellant’s 1974 motion to dismiss was meritorious and should have been granted by the court below since did not commence before I would
Accordingly, vacate sentence and order appellant discharged. presented
6. The
support
factual situation
this case would also
finding that
diligence
failed
to exercise due
making
quickly
an effort “to
the trial
reschedule
as
as circumstances
permit.”
Morgan,
supra,
n.5,
See