Commonwealth v. Wareham

¶1concurring:

¶2I concur with the majority’s disposition of this case as to indictment number 5657. I wish to comment, however, that if the appellant filed a written petition to dismiss before trial began on May 28 or if he opposed the Commonwealth’s motion to reopen the hearing on its extension petition, then he preserved his ability to claim that his Rule 1100 right to a speedy trial was violated. See Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978). In such event, the appellant’s claim should have been granted.

¶3*34As to indictment number 5659, I agree with the majority that we must vacate the judgment of sentence and remand this case to the court below to determine whether the appellant received notice of the Commonwealth’s application to extend.1 Unlike the majority, however, I believe that if the appellant was not notified of the Commonwealth’s application to extend or if he was not granted an opportunity to oppose that application, then there is no need for the court below to schedule a new hearing on the application. Pa.R. Crim.P. 1100(c) clearly requires that: “A copy of [the application to extend] shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.” (emphasis added). If either of these two requirements was not satisfied, then the allowance of the Commonwealth’s application to extend was improper. See Commonwealth v. Stabler, 251 Pa.Super. 194, 380 A.2d 444 (1978).

¶4As to indictment 5659, I would remand this case to the court below to ascertain whether the initial hearing conformed with the above-stated requirements of Pa.R.Crim.P. 1100(c). If the court below determines that the appellant or his counsel was adequately notified of the Commonwealth’s March 16, 1976 petition to extend, but failed to contest that petition, the judgment of sentence shall be reinstated. If the initial hearing was improperly conducted, then the appellant must be discharged because the mandatory period has expired.