Commonwealth v. Smith

¶1Concurring Opinion by

¶2I concur in the result.

¶3In the instant case the Commonwealth was prepared to proceed to trial on November 18, 1974, well within the period then allowed under the transitional, 270-day provision of Rule 1100. The trial had to be rescheduled, however, because defense counsel was unavailable.1 Had defense counsel been present on that date, the case could have been tried, and appellant could not now complain that his Rule 1100 rights had not been observed. Therefore, there was an adequate basis for the court to determine that the case had not previously come to trial because of the absence of defense counsel, and not because the Commonwealth was not diligent. Certainly, it cannot be said that the court clearly abused its discretion in granting the petition for extension under the circumstances of this case, which is readily dis*220tinguishable on its facts from Commonwealth v. Shelton, 239 Pa. Superior Ct. 195 (1976).

¶4I wish to make one further point. I do not read Commonwealth v. Shelton, supra, as standing for the proposition that delays occasioned by the administrative difficulties of the courts can never support a claim of due diligence under a Rule 1100 petition for an extension. To be sure, proof only that the court’s dockets are overcrowded will not constitute due diligence, since Rule 1100 contemplates that the accused should not suffer from general inadequacies in the criminal justice system. From time to time, however, an administrative quirk may arise and frustrate the Commonwealth’s attempt to begin trial within the period allowed under the Rule. Upon proof of such a peculiar circumstance by the district attorney, the hearing court in its discretion may well determine that due diligence was shown and grant a modest extension. For us to hold otherwise would, for many intents and purposes, read the “due diligence” exception out of Rule 1100.