dissenting.
I remain committed to the view reflected by my position in Commonwealth v. Dunlap, 474 Pa. 155, 377 A.2d 975 (1977). In these matters we should not introduce the concept of presumed prejudice. To do so would be an elevation of form over substance. The standard requiring actual prejudice is more than ample to protect the rights of the defendant.
I would add that the majority’s characterization of the defendant’s choosing between an impartial prosecutor and a speedy trial as a “Hobson’s Choice” improperly impugns the District Attorney. There is no evidence of actual prejudicial conduct; furthermore, the District Attorney offered to recuse himself and to request the Attorney General to prosecute the case. The record does not indicate that it would have been necessarily impossible for the Attorney General’s office to prosecute this case within the proscribed limits of Rule 1100; instead the District Attorney’s office merely noted that there could be a Rule 1100 problem. These facts do not justify the majority’s concerns.
In identifying this problem, the District Attorney simply attempted to protect the interest of the prosecution. In so doing, he raised the possibility of the case being time-barred because of his efforts to accommodate the wishes of the defense. In making this suggestion, there was no implication that the District Attorney intended to use the possible delay to the prejudice of the defendant, nor is there any evidence on this record to show that the defendant would in fact have been prejudiced.
The defense, having refused this reasonable offer, cannot now complain. Absent the assertion of actual prejudice, which is not present in this case, the District Attorney's participation in this matter should not form a basis for a claim of error.
PAPADAKOS, J., joins in this dissenting opinion.