Commonwealth v. Hutson

Dissenting Opinion by

Price, J.:

I dissent for the reasons I have set forth in my dissenting opinion in Commonwealth v. Smith, 240 Pa. Superior Ct. 212, 220, 361 A.2d 862 (1976).

The petition of the Commonwealth and the opinion of *248the lower court do not establish the Commonwealth’s due diligence as required by Rule 1100, and indeed the opinion specifically assigns the unavailability of a courtroom as the reason for the exclusion of time.

The appellant raises this issue of Rule 1100 in his post-trial motions and has thus properly preserved this point for appeal. The error of the trial judge in deferring to the suppression judge does not affect the validity of the issue before us. And where the docket entries and record before us are clear that Rule 1100 has not been complied with, a remand as proposed by the majority serves no useful purpose and, indeed, is not in the best interests of judicial economy.

A further reason exists in this appeal for reversal. The Commonwealth’s petition was not filed until' February 19, 1975, clearly more than 270 days from the date of the complaint. There is only one possible continuance chargeable to appellant which because it was for less than 30 days is not excludable. Rule 1100(c) is clear that the Commonwealth’s petition to extend time must be filed “At any time prior to the expiration of the period for commencement of trial....”

I specifically note my agreement with the majority that the Philadelphia Board of Judges’ policy discussed is improper as a violation of the law of this Commonwealth as pronounced by our Supreme Court.

The judgment of sentence must be reversed and appellant discharged.

Spaeth, J., joins in this dissenting opinion.