Commonwealth v. Metzger
Commonwealth v. Metzger
Opinion of the Court
The instant appeal presents only one issue: whether the lower court erred when it extended the period in which the Commonwealth was required to try the appellant. See Rule
On July 10, 1975, the Lancaster County District Attorney filed a complaint charging appellant with delivery of a controlled substance.
The facts relating to appellant’s Rule 1100 claim were developed at the January 22, 1976 hearing. After the complaint was filed, there were only two criminal terms of court
The delay in the instant case was caused in part by Lancaster County’s insufficient allocation of resources to the administration of its criminal docket. Had the county provided additional criminal trial terms between July and January or had the county empaneled more than one jury pool, there would have been no need to defer appellant’s trial until January, 1976. Allocations of inadequate resources, however, does not necessarily lead to discharge under Rule 1100(f). That view, once held by a majority of this Court, was rejected by the Supreme Court in Commonwealth v. Mayfield, 469 Pa. 214, 220, 364 A.2d 1345, 1348 (1976): “The Superior Court, concluding that rule 1100 was intended to promote prompt action by the courts as well as by the prosecution, held that delays attributable to court administration could never justify an extension under rule 1100(c). The rule, however, was not intended to create such an
Initially, we note that the Commonwealth’s Rule 1100(c) petition was timely filed. See Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. O’Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). We must next decide whether the prosecution exercised “due diligence” and whether delays due to the court’s inability to try the appellant could not be avoided. Commonwealth v. Mayfield, supra, 469 Pa. at 222, 364 A.2d at 1350. Appellant contends that we are precluded from holding that the Commonwealth has exercised due diligence because “[t]here is nothing in the record in this case to show that more than one trial could not have been held in a term of court, particularly in light of the extensive voir dire available to the defense and prosecution. Moreover the decision to attach and try only one case was also a unilateral decision by the Commonwealth and not due to an application for severance by Appellant’s counsel.”
Despite the numerous cases decided under Rule 1100, we have not evolved a clear definition of due diligence. See, e. g. Commonwealth v. Mancuso, 247 Pa.Super. 266, 372 A.2d 454 (1977); Commonwealth v. Mancuso, 247 Pa.Super. 245, 372 A.2d 444 (1977); Commonwealth v. Martin, 246 Pa.Super. 407, 371 A.2d 903 (1977); Commonwealth v. Lewis, 247 Pa.Super. 46, 371 A.2d 1318 (1977); Commonwealth v. Brown, 242 Pa.Super. 397, 364 A.2d 330 (1976); Commonwealth v. Hagans, 242 Pa.Super. 393, 364 A.2d 328 (1976); Commonwealth v. Mayfield, 239 Pa.Super. 279, 362 A.2d 994 (1976), rev’d 469 Pa. 214, 364 A.2d 1345 (1976);
However, while not on all fours with the instant case, Commonwealth v. Lewis, supra, is instructive. In Lewis, the lower court granted the Commonwealth’s Rule 1100(c) petition despite the fact that delay was caused in part by the limited number of grand juries empaneled by Cumberland County. Further, extensive delay resulted after the Commonwealth agreed to a postponement of the proceedings so that authorities could administer a polygraph test. We affirmed and stated:
“The issue thus becomes whether the Commonwealth in agreeing to the request of the appellant for the administration of the polygraph test and failing to bring the appellant to trial prior to the next Cumberland County trial term, exercised due diligence entitling it to the extension. The prosecuting authorities made every possible effort to accommodate appellant’s strategy of attempting to obtain a dismissal of the charges if the polygraph test results were favorable. Such a course of conduct can only be characterized as a fair and just approach to the administration of criminal justice in our Commonwealth. We refuse to hold that, under the facts of this case, the prosecuting authorities should have resisted the appellant’s request for the test or should have pushed appellant’s case through a preliminary hearing on April 23, 1975, or April 24, 1975, in order to meet
In the instant case, the prosecutor was faced with infrequent trial terms and only one jury pool during each term. Apparently, those limited resources are sufficient to meet the needs of the orderly administration of the county’s
Judgment of sentence is affirmed.
. Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended; 35 P.S. § 780-113(a)(30).
. We note that the Commonwealth filed its petition within the period, but that the court did not hold a hearing on it until after the period had run. We again must disapprove this practice. As we noted recently in Commonwealth v. Mancuso, 247 Pa.Super. 245, 250, n. 3, 372 A.2d 444, 446, n. 3 (1977): “The risk is obvious: if the court denied the extension after the period has run, the Commonwealth is prevented from bringing the accused to trial. If the petition is denied promptly, the Commonwealth may nonetheless be able to try the accused within the period. Because we conclude that the extension was properly granted and because the court’s inaction engendered no additional delay, . . . , we do not need to address the issue further.” See also, Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976). We can also imagine situations in which prejudice to the defendant would result from such a practice.
. Cf. The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 110.
. From a review of the foregoing cases, we conclude that inadequate record keeping or failure to keep track of a defendant who is otherwise available precludes a finding of due diligence. See, e. g., Commonwealth v. Martin, supra; Commonwealth v. Cutillo, supra. At the same time, while delay caused by protracted pretrial litigation may not be excluded by operation of Rule 1100(d), see Commonwealth v. Shelton, supra; Commonwealth v. Millhouse, 239 Pa.Super. 445, 362 A.2d 398 (1976), rev’d on other grounds 470 Pa. 512, 368 A.2d 1273 (1976), the Commonwealth may advance such time for purposes of an extension. Commonwealth v. Mancuso, supra, 247 Pa.Super. 266, 372 A.2d 454. Further, the Commonwealth may seek an extension if pretrial delay is caused by actions beyond the control of the court system, the defendant, and the prosecutor. See Commonwealth v. Brown, supra; Commonwealth v. Cutillo, supra.
. See Commonwealth v. Lewis, supra 247 Pa.Super. at 54, 371 A.2d at 1322: “In many of the smaller counties in our Commonwealth, such as Cumberland County, criminal sessions held four times a year are more than adequate to keep the court’s business current. Additional court sessions should not be required unless there is a clear showing that the business of the court requires such a procedure.”
Concurring Opinion
concurring:
In my dissenting opinion in Commonwealth v. Lewis, 247 Pa.Super. 46, 371 A.2d 1318 (1977), I expressed my opinion that the holding of Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), should be applied to cases decided prior to the announcement of the decision. That is, when we are called upon to review the grant of an extension of time under Rule 1100(c) on account of judicial delay, we must apply the Mayfield standard that “ . . . the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.” Id. 469 Pa. at 222, 364 A.2d at 1350. In my view if there is no such record showing then the record must be remanded.
Reference
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- COMMONWEALTH of Pennsylvania v. Russell M. METZGER, Appellant
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- Published