*1 tural Finally, appellee entered into contracts with a firm].” and an general contractor architectural firm on the same that it its contract with day signed These con- appellant. tracts evidence a may recognition of an by appellee obliga- tion to construct the manufacturing Given the facility. to take opportunity depositions perhaps proceed to well parties be able to intend- may prove ed that would be appellee responsible constructing fit We reverse building manufacturing purposes. lower order reinstate complaint court’s against appellee.
PRICE, J., concurs in the result. WATKINS, President dissents. Judge,
Submitted March Decided June *2 Packel, Defender, John W. Assistant Public Philadelphia, for appellant. Glass,
Steven H. Goldblatt and E. Deborah Assistant Dis- trict Attorneys, Philadelphia, appellee. WATKINS, JACOBS,
Before President and Judge, HOFFMAN, CERCONE, PRICE, VOORT, VAN der SPAETH, JJ.
HOFFMAN, Judge: is whether the the instant appeal The sole issue raised to bring Rule 1100 when it failed violated the criminal complaint until 321 after days appellant Pa.R.Crim.P., 19 1100(a)(2), Ap- P.S. issued. commencement of We believe pendix. and, therefore, we affirm the extended trial was properly of sentence. judgment filed a 28, 1975, complaint
On January relat- robbery,2 rape,3 with burglary,1 charging appellant 27, 1975 January episode during out of a arising ed offenses terrorized several companions and three which appellant Philadelphia. section of a home in the Germantown people on a total of indicted March, Jury 1975 Grand months, the Common- the next several During 15 counts. difficulties; a re- as serious wealth experienced *3 to pursuant filed three sult, Attorney petitions the District time for commencement for extensions of 1100(c) Rule finally each Trial petition. court granted trial. The lower 30, December a found 16,1975. jury December On on began assault,4 and four conspiracy,5 of indecent guilty 24,1976, after the lower court March counts of On robbery. motions, him to it sentenced denied appellant’s post-verdict of 4 to 15 on each years concurrent terms of imprisonment sentence on the suspended of the four bills robbery 1976, the lower court 10, granted other August bills. On to 3 to 15 years’ imprison- sentences appellant’s reduction of This followed. appeal ment. did not that is
The sole contention within in bringing appellant due diligence exercise No, 1; 1972, 1482, 334, Code, P.L. § Act of December 1. The Crimes 18 3502. Pa.C.S. § Code, supra; 18 Pa.C.S. 3701. § 2. The Crimes Code, supra; 3121. § 18 Pa.C.S. 3. The Crimes Code, supra; 3126. 18 Pa.C.S. § 4. Crimes Code, supra; 18 Pa.C.S. § 5. The Crimes complaint. of the criminal the issuance after days that it com- contends The Commonwealth 1100(a)(2). Rule petitions each of its three when it filed the rule with plied 1100(c). to Rule pursuant the extend for trial on May was listed 31,1975, the case On March until the case court continued 1975; 19, the lower on May courtrooms; on were no available there because June 15, for the the case until July continued 11, the court June time, listed the case for a the court At that same reason. for its first petition filed The Commonwealth “status” call. of the 24, 1975, filing after days extension on July 1100(c)hearing, At the Rule complaint. its for an need following explanation
advanced “There are fourteen extension: witnesses] [Commonwealth witnesses Five civilian case, Your Honor. in the involved is a This officers, with various vacations. all and nine police grant- The court case.” case, complicated very serious very until September ed an extension his Commonwealth, appellant, September On However, ready. that were they announced co-defendants to be was in status “back-up” while the case day, on the next unavaila- of the co-defendants became tried, counsel for one trial in York City. ble one of his went on New when clients 1100(c) Therefore, the filed a second the court extended the deadline At the hearing, petition. both attorneys until October because Appel- in trials elsewhere. co-defendants would be involved The colloquy be severed. lant the cases requested that de- and the court between defense counsel indicates *4 days previ- alternative two counsel had rejected fense a remedy had it as suggested the when Commonwealth ously the difficulties. to to proceed was unable again
The Commonwealth
27,
Therefore, on October
deadline.
the extended
within
1100(c)petition.
a third Rule
1975, the Commonwealth filed
the unavaila-
At the
the Commonwealth advanced
hearing,
for an
as a
attorney
co-defendant’s
basis
of
bility
extension. The court
a 60
extension. The
granted
day
case
period.
was tried within that
“At
time
to the
1100(c) provides:
any
prior
the
for commencement of
expiration
period
for the Commonwealth
to the court
may apply
attorney
an
the time for commencement of trial. A
extending
order
shall be served
of such
the defendant
copy
application
upon
if
his
the defendant shall also
through
attorney,
any,
heard
right
have the
be
thereon. Such
shall
application
if trial cannot
granted only
be
be commenced within the
due
prescribed period despite
diligence
the Common
wealth.
order
such
granting
shall
Any
application
specify
the date or
within which trial shall
period
be commenced.”
There is no
that each
filed.
question
petition
timely
Shelton,
8,
Commonwealth v.
469 Pa.
It is
well-settled that
now
courtroom unavailability
does
preclude
finding
not
of due diligence. Common
wealth v.
469 Pa.
305 1100(f).” Com- Pa.R.Crim.P. with prejudice. dismissed 218, 364 Pa. at A.2d at 469 supra, Mayfield, monwealth v. inaction or judicial is caused the delay When on the rec- difficulties, appear the reasons must as consistent possible as soon case must be listed ord and the Further, the Commonwealth Id. court’s business. with the Cf. Common- diligence. of its own proving the burden bears (filed April A.2d 826 Mitchell, 472 Pa. v. wealth 1977). principles, the foregoing facts in light the
Viewing extended the court properly we find that petitioned when the Commonwealth commencement of trial listed; were parties in The case was the court July. resources, from unavailable thus, resulted delay prepared; or the court. prosecutor of the dilatory practices rather than grant- also properly third extensions were The second and in its instance, stymied ed. In each coun- co-defendants’ trial by appellant’s efforts to commence intended to permit rule was not The unavailability. sel’s efficient manage- prevent unavailability defense counsel’s did not calendar. Commonwealth ment of the court a co-defend- of time when those periods to exclude attempt 1100(d). to Rule available, pursuant was not attorney ant’s it was in Rather, diligent preparing that argued it to factors beyond due trial could not be commenced and that circumstances, we believe such its control. Under Common- to an extension. See is entitled (1976) A.2d 330 Brown, 242 Pa.Super. wealth v. 393, 364 242 Pa.Super. v. (dictum); Hagans, (dictum).8 (1976) A.2d 328 is affirmed. of Sentence
Judgment in Common- reasons stated SPAETH, J., dissents for the 58, 371 A.2d Lewis, v. Pa.Super. wealth SPAETH, J.). (1977) (Dissenting Opinion by 1324-26 complex fewer witness- involves less case which note in a 8. We severance, objected to a es, parties have not first and which separate may delay by be trials. proper a co-defendant solution to supra. Hagans, See Commonwealth