Commonwealth v. Bright
Commonwealth v. Bright
Opinion of the Court
Dexter Bright has appealed from a judgment of sentence imposed following conviction in a bench trial for robbery,
Appellant was arrested on March 14, 1979, and a complaint was filed against him the following day, March 15, 1979. Pursuant to Rule 1100(a)(2),
“In reviewing the lower court’s ruling that the Commonwealth has or has not met its burden of proving due diligence, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted.” Commonwealth v. Sharp, 287 Pa.Super. 314, 317, 430 A.2d 302, 304 (1981). Accord Commonwealth v, Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977); Commonwealth v. Jackson, 269 Pa.Super. 249, 253 n.4, 409 A.2d 873, 875 n.4 (1979). Appellant offered no evidence at the hearing, and the Commonwealth offered into evidence the record containing the notations made by the trial judge at the two previous listings of the case for trial. The record disclosed that on August 9, 1979, the complainant was on vacation, and that on September 4, 1979, the arresting officer was also on vacation.
In Commonwealth v. Postell, 280 Pa.Super. 550, 552, 421 A.2d 1069, 1070 (1980), the appellant argued that the lower
It is beyond peradventure that “ ‘[a] court may grant the Commonwealth an extension of time for trial if it finds that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.’ Pa.R.Crim.P. 1100(c).” Commonwealth v. Sharp, supra 287 Pa.Super. at 317, 430 A.2d at 304 (1981), quoting Commonwealth v. Miller, 270 Pa.Super. 178, 182, 411 A.2d 238, 240 (1979). In the instant case, the delays on August 9, 1979 and September 4, 1979 were occasioned by the unavailability of the Commonwealth’s witnesses due to their respective vacation schedules. “[W]hen witnesses become unavailable toward the end of the Rule 1100 time period—whether through vacation, illness, or other reasons not within the Commonwealth’s control—the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted.” Commonwealth v. Sharp, supra 287 Pa.Super. at 317, 430 A.2d at 304, quoting Commonwealth v. Sinor, 264 Pa.Super. 178, 183 n.5, 399 A.2d 724, 727 n.5 (1979) (emphasis added). This Court has repeatedly held that where delay in the commencement of trial is caused by the unavailability of a witness rather than by a lack of due diligence on the part of the Commonwealth, an extension under Rule 1100(c) is properly granted: Commonwealth v. Thompson, 292 Pa.Super. 108, 111-112, 436 A.2d 1028, 1030 (1981); Commonwealth v. Long, 288 Pa.Super. 414, 432 A.2d 228 (1981); Commonwealth v. Schuster, 288 Pa.Super. 310, 431 A.2d 1063 (1981); Commonwealth v. Sharp, supra 287 Pa.Super. at 318, 430 A.2d at 304; Commonwealth v. Coleman, 280 Pa.Super. 162, 164, 421 A.2d 455,
Moreover, the initial delay in the instant case was caused by a defense requested continuance. “[D]efense-requested continuances may realistically obstruct diligent efforts by the Commonwealth to try an accused and may, therefore, justify an extension under Rule 1100(c).” Commonwealth v. Brant, supra 272 Pa.Super. at 140-141, 414 A.2d at 709, quoting Commonwealth v. Mancuso, 247 Pa.Super. 245, 253-254, 372 A.2d 444, 448 (1977). Accord Commonwealth v. Hill, 290 Pa.Super. 399, 403, 434 A.2d 813, 815 (1981); Commonwealth v. Garnett, 258 Pa.Super. 115, 120, 392 A.2d 711, 713 (1978); Commonwealth v. Brown, supra 252 Pa.Super. at 368-369, 381 A.2d at 963; Commonwealth v. Gibson, 248 Pa.Super. 348, 352, 375 A.2d 132, 133 (1977). Although it cannot be said that the defense continuance prevented trial within the period allowed therefor by Rule 1100, it may be observed. that such continuance did delay trial until the traditional summer vacation period. Thus, it could be considered by the court in determining whether the Commonwealth had exercised due diligence.
This is not a case involving the concept of judicial delay. Therefore, we find it unnecessary to discuss the circumstances under which judicial delay will warrant the granting of an extension under Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). The only issue in this case is whether the Commonwealth exercised due diligence in commencing trial.
Appellant’s trial date, as set by the court, was twenty-two days beyond the original amended run date under Rule 1100.
The judgment of sentence is affirmed.
. 18 Pa.C.S. § 3701.
. 18 Pa.C.S. §§ 903, 3701.
. 18 Pa.C.S. § 2701.
. Rule 1100(c) provides:
*100 (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order gra iting such application shall specify the date or period within which trial shall be commenced.
. Rule 1100(a)(2) provides:
(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
. Rule 1100(d) provides:
(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.
. Although the record may not be complete, it does not reflect that either appellant or his counsel made any objection when the court announced a new trial date beyond the Rule 1100 run date. This case was briefed and submitted before the Supreme Court’s decision in Commonwealth v. Brown, 497 Pa. 438, 438 A.2d 592 (1981), and the issue of waiver has not been discussed. Our decision on appeal, therefore, is not based upon appellant’s apparent failure to object to the October 23rd trial date set by the court.
. The dissent would set aside the conviction for robbery and discharge appellant because, it contends, the Commonwealth failed to demonstrate that it had exercised due diligence between September 4 and October 1. It is not at all clear, however, what the representatives of the Commonwealth should have done to overrule the trial
Dissenting Opinion
dissenting:
I heartily dissent.
Rule 1100(c) provides that applications by the Commonwealth to extend the time for trial may be granted “only if trial cannot be commenced within the prescribed period despite due diligence, by the Commonwealth.” Since Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), Rule 1100(c) has been interpreted to require a record showing of due diligence. The Supreme Court stated there:
Henceforth, the trial court may grant an extension under Rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, 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 1349-1350. Cf. Commonwealth v. Berry, 271 Pa.Superior Ct. 466, 414 A.2d 130 (1979); Commonwealth v. Warman, 260 Pa.Superior Ct. 143, 393 A.2d 1046 (1978). Mere assertions of due diligence and allegations of fact do not establish cause for an extension of time under Rule 1100(c). See Commonwealth v. Ehredt, 485
It is therefore settled that Rule 1100 requires evidence in support of a petition to extend. This does not mean that Rule 1100 hearings may not be short and to the point. If a Commonwealth petition pleads facts that the answer admits, no further proof should be necessary. Commonwealth v. Ehredt, supra, 485 Pa. at 191 n.8, 401 A.2d 358 n.8.
The technique of judicial notice may also be useful. Id., 269 Pa.Superior Ct. at 253, 409 A.2d at 875. (Footnote omitted). Thus, I have no quibble with the majority when it finds no error on the part of the lower court in accepting the notations in the quarter sessions file concerning the unavailability of prosecution witnesses on August 9 and September 4. However, I cannot accept its conclusion that this alone was sufficient to sustain the Commonwealth’s burden of proof of its diligence.
To my mind the most that can be inferred from the fact that the arresting officer was unavailable for trial on September 4 is that the Commonwealth had been diligent up until and including that date. But, there is absolutely no evidence in the record which supports the inference that the Commonwealth was diligent after that date. It is impossi
Moreover, the Commonwealth completely failed to show that upon the officer’s return (assuming of course that he returned before the run-date, said assumption being necessitated by the Commonwealth’s failure to establish the date of his return) that appellant could not have been brought to trial within the run-date on his case advanced over others without Rule 1100 problems. See Commonwealth v. Freeman, 280 Pa.Superior Ct. 462, 421 A.2d 814 (1980); but see Commonwealth v. Suggs, 289 Pa.Superior Ct. 44, 432 A.2d 1042 (1981).
Furthermore, Commonwealth v. Mayfield, supra requires not only a record showing of the prosecution’s due diligence, but a certification that the case is scheduled for the earliest possible date consistent with the court’s business. This certification is entirely lacking in this case as well.
Because I believe that the Commonwealth failed to sustain its burden of proving its diligence, and because the court did not certify that the trial was begun at the earliest possible date consistent with its business I would reverse and discharge appellant. Accordingly, I must dissent.
See Commonwealth v. Tate, 299 Pa.Superior Ct. 518, 445 A.2d 1250 (1982) (Opinion per Johnson, J. with Spaeth and Wieand JJ. joining). Here it was held that it was ineffective assistance of counsel to preserve for appeal a Rule 1100 question involving a police officer’s inability to appear on the date of trial but where he returned shortly thereafter, and where the Commonwealth presented no evidence as to why the case could not have been tried upon the officer’s return.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Dexter BRIGHT, Appellant
- Cited By
- 14 cases
- Status
- Published