Com. v. Mancuso

• Decision Date: 31 March 1977
• Citation: 372 A.2d 444,247 Pa.Super. 245
• Parties: COMMONWEALTH of Pennsylvania v. Dominic MANCUSO and Joseph Mancuso, Jr., Appellants.
• Court: Pennsylvania Superior Court

Page 444

372 A.2d 444

247 Pa.Super. 245

COMMONWEALTH of Pennsylvania v. Dominic MANCUSO and Joseph Mancuso, Jr., Appellants.

Superior Court of Pennsylvania.

Argued Nov. 11, 1976.

Decided March 31, 1977.

R. W. Ziegler, Jr., Pittsburgh, with him Richard S. Ombres, Pittsburgh, for appellants.

Conard B. Capuzzi, Dist. Atty., Uniontown, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN, Judge:

The instant appeal raises two important questions: (1) whether the lower court erred in granting the Commonwealth's petition to extend the period in which to try appellants; see Rule 1100(c), Pa.R.Crim.P., 19 P.S. Appendix; and (2) whether the court erred in denying appellants motion for a change of venue. ¹

In 1975, the Fayette County district attorney submitted to the grand jury over 300 charges of burglary, robbery, arson and conspiracy, involving eleven defendants, several of whom had been members of the Connellsville Police Department when the crimes were committed. The appellants are two of the eleven people arrested at that time. Their trial on charges arising out of an October 22, 1973 burglary of the Connellsville Sons of Italy Hall commenced on December 8, 1975. On December 17, a jury returned a verdict of guilty on charges of burglary and conspiracy. The lower court thereafter denied appellants' post-trial motions and sentenced appellants to concurrent five to ten year terms of imprisonment and to make restitution. This appeal followed.

I

The facts relating to appellants' Rule 1100 claim are as follows: On April 29, 1975, the prosecutor filed a complaint charging appellant Dominic Mancuso with burglary. On May 14, an additional complaint was filed in which he was charged with conspiracy to commit burglary. This complaint named appellant Joseph Mancuso as one of Dominic Mancuso's co-conspirators; the complaint against appellant Joseph Mancuso was not filed until June 26, 1975. These complaints were not filed in time for consideration by the April Grand Jury. The next grand jury did not convene until August, at which time the appellants were indicted as charged in the complaints. The Commonwealth had until October 26, 1975, 180 days from the date of the complaint, to bring appellant Dominic Mancuso to trial on the original charge, unless the period was extended under Rule 1100(c) or (d), Rule 1100(a)(2). ² The one-hundred and eightieth day from the complaint against Joseph Mancuso was December 23.

On August 19, all of those accused in the 'Connellsville Police cases' filed an application for a change of venue. See Rule 313, Pa.R.Crim.P. That motion was denied after a hearing was held on August 29. All of the cases were scheduled for trial during the September Term which consisted of the weeks beginning on September 2, September 8, September 29, and October 6, 1975. Prior to commencement of the term, appellants petitioned for a one week continuance. On September 8, the court granted the prosecutor a one week continuance for all of the Connellsville Police cases when the prosecutor learned that the Commonwealth's lead witness, Martin Wedge, was in the hospital. During the final two weeks of the September Term, the first of the cases was brought to trial. That case, known as the 'Foodland' case, did not involve the appellants; however, appellants' attorney represented one of the defendants on trial in that case.

At some point prior to the expiration of the 180 day period, it became apparent to the prosecutor that his office and the courts would not be able to try the remaining Connellsville Police cases within that period. Therefore, on October 14, prior to the end of the period, the prosecutor petitioned the court for an extension pursuant to Rule 1100(c). On October 27, the lower court conducted a hearing on the petition, but did not grant the petition until November 25, when the court granted an extension until the December Term, the next available trial date. ³ On October 28, appellants' counsel withdrew from the case. On November 21, present counsel entered his appearance and, prior to trial, filed a new motion for a change of venue. ⁴ On December 1, counsel requested additional time to prepare that motion. The court held a hearing on December 5, and denied the motion. Trial commenced on December 8.

Appellants contend that the lower court erred in granting the Commonwealth's petition to extend. In their brief, filed before our Supreme Court's recent decisions in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), and Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), appellants argue that the lower court erred in granting the extension because the Commonwealths' request was premised on court backlog. See Commonwealth v. Mayfield, 239 Pa.Super. 279, 362 A.2d 994 (1976); Commonwealth v. Shelton, 239 Pa.Super. 195, 361 A.2d 873 (1976). Subsequently, appellants filed a supplementary brief in which they discussed the impact of the Supreme Court's decisions in Mayfield and Shelton. More specifically, they contend that the Commonwealth filed to prove that it exercised due diligence in bringing them to trial. ⁵

In Mayfield, the Supreme Court rejected the view of a majority of this Court that delays caused by court administration could never justify an extension under Rule 1100(c). ⁶ At the same time, the Court made clear that the judiciary as well as the prosecutor must exercise due diligence:

'This Court is aware that, despite diligent efforts by the trial courts, cases may arise when a trial of a defendant cannot be held within the prescribed period. In such circumstances, the policies which prompted the adoption of rule 1100 would not be served by disallowing a reasonable, limited extension specifying 'the date or period within which trial shall be commenced.' Pa.R.Crim.P. 1100(c). The rule recognized that 'due diligence' is the most that should be demanded from the prosecutor and that if despite such efforts, he cannot prepare for trial within the prescribed period, an extension is permissible. No more rigid result under our present rule is justified when the inability of a trial court to proceed within the prescribed period is at issue . . ..

'(W)e recognize the need to insure that trial courts exercise due diligence in implementing the objectives of rule 1100. We do not expect and will not permit the rule to be circumvented by unwarranted grants of extensions.' Commonwealth v. Mayfield, 469 Pa. at ---, 364 A.2d at 1348--49. The requirement of due diligence protects the defendant's and the public's 'overriding interest' in providing prompt disposition of criminal charges. See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, § 1.1 (Approved Draft, 1972). Thus, Mayfield reaffirmed the policy underlying Rule 1100, as originally formulated in Commonwealth v. Hamilton, 449 Pa. 297, 308, 297 A.2d 127, 133 (1972): '(A) mandatory time requirement will act as a stimulant to those entrusted with the responsibility of managing court calendars.' The Court announced the following, prospective, standards to provide guidance for our courts:

'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.' 469 Pa. at 469, 364 A.2d at 1349--50.

In the instant case, the Commonwealth filed its petition to extend pursuant to Rule 1100(c) on October 14, 168 days after the initial complaint was filed. Therefore, the petition was timely. Cf. Commonwealth v. Shelton, supra; Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975); Commonwealth v. Cutillo, 235 Pa.Super. 131, 339 A.2d 123 (1975). Further, while we cannot expect the record to include a 'certification that trial (was) scheduled for the earliest date consistent with the court's business . . .', the court apparently complied with that requirement. When it became obvious that the court would not reach the case during the September Term, it relisted the case for the December Term, the next scheduled term of court. Once that term began, trial commenced as soon as the court had disposed of all pretrial matters. See Comment to Rule 1100. In addition, the court's opinion recites the causes of delay: the extraordinary number of indictments filed against the eleven Connellsville Police case defendants; the multiple representation of those defendant's by appellants' trial counsel; the continuance requested by the Commonwealth necessitated by hospitalization of its key witness; a one week continuance requested by counsel which effectively prevented trial during the September Term. While the rule is clear that a continuance for less than 30 days does not extend the period under Rule 1100(d), Commonwealth v. Shields, --- Pa.Super. ---, 371 A.2d 1333 (filed March 31, 1977), defense-requested continuances may realistically obstruct diligent efforts by the Commonwealth to try an accused and may, therefore, justify an extension under Rule 1100(c). ⁷ The lower court's finding of due diligence is amply supported by the record; therefore, the court properly extended the trial period.

II

Appellants contend that the lower court erred in denying their motion for a change of venue. ⁸

Appellants originally petitioned the court for a change of venue on August 19, 1975. The motion was denied after an August 27 hearing. A second motion was filed on October 22, but the court did not act on that petition. After the appellants' counsel withdrew and appellants retained new counsel, they filed another...