Commonwealth v. Myers

393 A.2d 785, 893 A.2d 785, 259 Pa. Super. 196, 1978 Pa. Super. LEXIS 3836

Opinions

SPAETH, Judge:

The only issue raised on this appeal is whether the lower court was correct in granting the Commonwealth two extensions under Pa.R.Crim.P. 1100(c).

Appellant, citing Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976), contends that the extensions should not have been granted because "the Commonwealth merely filed form petitions alleging due diligence and fail[ed] to allege any supporting facts." However, it appears that the criticism of form petitions in Ray was premised on the combination of a form petition and the absence of a hearing; we do not read Ray to hold that use of a form petition compels denial of an extension when a hearing is held on the petition. Here, a hearing was held on each of the Commonwealth's petitions. Appellant filed no answers to dispute the Commonwealth's averments of due diligence, nor does he now claim that he contested the point at the hearings, or that at the hearing the Commonwealth did not adequately prove its due diligence. Therefore, as far as the record reveals,

* the Commonwealth's averment of due diligence was uncontested, and we must accordingly conclude that the extensions were properly granted.

Affirmed.

PRICE, J., files a dissenting opinion, in which CERCONE, J., joins. WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.

The record does not contain transcripts of the hearings on the Commonwealth's petitions; however, appellant has given no reasons why the transcripts are necessary. Cf. Commonwealth v. Krall, 249 Pa.Super. 433, 378 A.2d 373 (1977) (remand for transcript, where only allegation of due diligence was that "a trial cannot commence within the required period because [t]his case could not be tried during the May, 1975 Session of Court"); Commonwealth v. Tome, 248 Pa.Super. 242, 375 A.2d 78 (1977) (remand for transcript, because no factual showing of record as to causes of court delay).