Commonwealth v. Tome
Commonwealth v. Tome
Opinion of the Court
In this case a petition for an extension of time in which to commence trial was filed by the Commonwealth pursuant to
The case is therefore remanded for a new Rule 1100 hearing to be held in conformity with this opinion. Notice of this hearing is to be given to the appellant and he shall be given the right to be heard thereon, pursuant to Pa.R. Crim.P. 1100(c). Upon completion of this hearing, the record is to be returned to this Court for a determination of the merits of this appeal.
I agree with the majority that we must remand this case to the court below to establish a conclusive record. I believe, however, that the majority errs by ordering the court below to conduct a new hearing on the Commonwealth’s application to extend without first requiring the lower court to determine whether the initial hearing conformed with the requirements of Pa.R.Crim.P. 1100(c). If the appellant was denied his right to contest the Commonwealth’s application to extend, then the allowance of such an application was improper under Pa.R.Crim.P. 1100(c) and there is no need for further hearings as to the validity of the Commonwealth’s claim.
I would remand this case to the court below to determine whether the initial hearing conformed with the requirements of Pa.R.Crim.P. 1100(c). If the initial hearing was improperly conducted, then the appellant must be discharged because the mandatory period has expired. If, however, the propriety of the initial hearing is confirmed, the lower court is to conduct a new hearing under Rule 1100(c). After the completion of this hearing, the lower court is to return the record to this court so that we may resolve the merits of this appeal.
. The complaint in this case, charging the appellant with voluntary sexual deviate intercourse, 18 Pa.C.S. § 3124, and criminal conspiracy, 18 Pa.C.S. § 903, was filed on April 25, 1975. The Commonwealth therefore had 180 days, or until October 22, 1975, in which to bring the appellant to trial pursuant to Pa.R.Crim.P. 1100(a)(2).
. Trial was actually held on January 16, 1976, and the appellant was adjudged guilty on both counts.
Dissenting Opinion
I join Judge PRICE’S Dissenting Opinion, and wish only to add that if on remand a new Rule 1100 hearing is held, we should expect the lower court now to comply with the requirements of Commonwealth v. Mayfield. Cf. my Dissenting Opinion in Commonwealth v. Lewis, 247 Pa.Super. 46, 371 A.2d 1318 (1977).
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Roberto TOME, Appellant
- Cited By
- 22 cases
- Status
- Published