Com. v. Manley
| Decision Date | 07 January 1981 |
| Citation | 422 A.2d 1340,282 Pa.Super. 376 |
| Parties | COMMONWEALTH of Pennsylvania v. Lloyd L. MANLEY, Appellant. |
| Court | Pennsylvania Superior Court |
James E. O'Brien, Jr., Asst. Public Defender, Scranton, for appellant.
Ernest D. Preate, Jr., Dist. Atty., Scranton, for Commonwealth, appellee.
Before SPAETH, HESTER and CAVANAUGH, JJ.
Appellant was convicted of robbery, theft and recklessly endangering another person. He argues on this appeal that he should be discharged because his right to a speedy trial under Pa.R.Crim.P. 1100, 19 P.S. Appendix, has been violated.
On February 15, 1978, a criminal complaint issued against appellant, charging him with the crimes just listed. Therefore, under Pa.R.Crim.P. 1100(a), the Commonwealth had until August 14, 1978, 1 or one hundred eighty days later, to commence appellant's trial. Trial was scheduled for May 30, 1978. However, on that date, appellant appeared without counsel and trial was continued. 2 On June 1, the Commonwealth filed a petition pursuant to Pa.R Crim.P. 1100(c) for an extension of time to commence trial, and the lower court granted a rule to show cause why the petition should not be granted. The Rule was returnable on June 9, and a hearing on the petition, if deemed necessary, was scheduled for June 14. Copies of the petition were served on appellant, the public defender, and the private counsel who represented appellant at his preliminary hearing. No answer to the petition was filed and no hearing was held. Moreover, no order on the petition either granting or denying it was entered by the lower court. On September 21, appellant filed a motion pursuant to Pa.R.Crim.P. 1100(f) for dismissal of the charges against him on the ground that the Commonwealth had failed to commence trial within the period prescribed by Rule 1100. The Commonwealth filed an answer, and a hearing on the petition was held on September 27. At the conclusion of the hearing, the lower court found that appellant was unavailable for trial on May 30, that because criminal court terms were not scheduled during the summer months the next available trial date after May 30 was September 25, and that although special out-of-term criminal trials had been held during the summer months, appellant's trial could not have been held prior to September 25 because "all of the courts during this past summer were busy with matters." On these findings, the lower court denied appellant's motion to dismiss. The lower court also stated that it would grant the Commonwealth's "petition to extend the time of trial until today or tomorrow or Friday during this week, whenever there's a court available for trial of this case." Although the lower court did not explicitly state that the petition being granted was the one the Commonwealth filed on June 1, we must assume that this was the petition the court was granting as the Commonwealth had filed no other. The record shows no request by the Commonwealth either before or at the hearing for a ruling by the lower court on its June 1 petition. 3 The next day, September 28, the Commonwealth filed its second petition for an extension of time, alleging that it could not try appellant on or before September 29 because "there were no trial judges available and no courtrooms available since all the judges and courtrooms were occupied with other cases." Appellant opposed an extension but admitted the unavailability of courtrooms and a trial judge. On October 26, the lower court, without a hearing, granted an extension of time until the next criminal court term beginning November 27. Appellant was tried on December 1, 1978.
The Commonwealth argues that all of the period from May 1 until September 25 should be excluded in determining the timeliness of appellant's trial. The Commonwealth reasons that appellant was unavailable during this period within the meaning of Pa.R.Crim.P. 1100(d)(1) because he appeared for trial on May 30 without counsel and the next available trial date was September 25. While we find that appellant was unavailable for trial on May 30 and for a reasonable period thereafter until a public defender could be appointed to represent him, see, e. g., Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977); Commonwealth v. Smith, 262 Pa.Super. 258, 396 A.2d 744 (1978), 4 it may not be said that appellant was unavailable for the entire period from May 30 until September 25. In Commonwealth v. Goodman, 260 Pa.Super. 266, 393 A.2d 1256 (1978), this court held that a defendant who escaped from jail and was unavailable for trial until September 26, 1975, the date the Commonwealth learned his whereabouts, was nevertheless available for trial after September 26, even though the next criminal court term was not scheduled until November 12, 1975. The delay caused by the lack of a criminal court term in which to try the defendant prior to November 12 constituted judicial delay that was not excludable from the mandatory period prescribed by Rule 1100. Such delay, we held, could serve only as the basis for an extension of time that had been granted upon a petition filed by the Commonwealth pursuant to Rule 1100(c). 5
In the present case, appellant's unavailability for trial lasted no longer than a day or two, the time needed by the court to appoint the public defender. 6 The remainder of the delay was caused by the scheduling practices of the court. Thus, appellant's trial was timely only if the lower court on September 27 properly granted the Commonwealth an extension of time to commence trial. E. g., Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Goodman, supra ().
As noted, at the hearing on appellant's petition to dismiss the charges, the lower court purported to consider, sua sponte, the Commonwealth's outstanding Rule 1100(c) petition that was filed on June 1. One may have serious doubts that the court had the power to consider a petition that for all intents had been previously abandoned by the Commonwealth. In any event, it is clear that in granting the Commonwealth an extension of time the lower court was not acting upon the petition the Commonwealth filed on June 1, but was in fact acting on an imaginary petition that had never been filed. The Commonwealth's petition alleged only:
4. Defendant was scheduled for trial on May 30, 1978, defendant appeared without counsel and the case was continued by the Honorable M. Kosik.
5. The defendant has not been hampered in any way by the delay thus far and will not be so hampered if the extension is granted.
These allegations clearly were insufficient to support the grant of an extension of time to commence trial. That appellant appeared without counsel on May 30 did not show that he could not be tried before August 14; and lack of prejudice to the accused is not a factor to be considered by a court in determining whether to grant an extension of time. Commonwealth v. Mayfield, 239 Pa.Super. 279, 362 A.2d 994, rev'd on other grounds, 469 Pa. 214, 364 A.2d 1345 (1976).
Perhaps recognizing the inadequacy of the Commonwealth's averments, the lower court did not rely on them in granting the extension. Rather, it took judicial notice that criminal court terms had not been scheduled for the summer months and that although special out-of-term criminal trials were held during the summer, appellant could not have been tried previously because all of the courts were busy with other matters. After taking this notice, the court found that the Commonwealth had been duly diligent in bringing appellant to trial. The Commonwealth's petition, however, did not aver that the Commonwealth had been diligent, or that criminal court terms had not been scheduled, or that the Commonwealth had asked the court administrator to schedule appellant's trial for the summer but the administrator had found such scheduling to be impossible. See generally Commonwealth v. Smith, --- Pa.Super. ---, 410 A.2d 329 (1979); Commonwealth v. Bayani, 261 Pa.Super. 369, 396 A.2d 443 (1978); Commonwealth v. Hoffman, 255 Pa.Super. 66, 386 A.2d 138 (1978) (Opinion in Support of Affirmance); Commonwealth v. Lewis, 247 Pa.Super. 46, 371 A.2d 1318 (1977) (). In short, the petition the lower court was purporting to act upon was fundamentally different from the petition the Commonwealth filed. This fact, together with the Commonwealth's failure to request the lower court to rule on the petition it did file, compels the conclusion that the lower court erred in granting the extension.
Appellant was tried long after August 14, the one hundred eightieth day following the filing of the criminal complaint against him. While the period between September 28 and December 1 might be accounted for by the Commonwealth's second petition for an extension of time, the period between August 14 and September 27 remains unaccounted for. At most, appellant was unavailable for trial for several days at the end of May and the Commonwealth failed to obtain an order extending the time for trial beyond August 14.
Appellant is discharged.
I would affirm for the reason set forth in my Opinion in Commonwealth v. Chapman, --- Pa.Super. ---, 414 A.2d 352 (1979). I dissent for the further reason that the majority does not exclude from the time limits of Pa.R.Cr.P. 1100(a)(2), the 180 day rule, the period between May 30, 1978, when appellant appeared for his scheduled trial without counsel,...
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...rests with the Commonwealth. See: Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984); Commonwealth v. Manley, 282 Pa.Super. 376, 383 n. 7, 422 A.2d 1340, 1343 n. 6 (1980); Commonwealth v. Garrison, 277 Pa.Super. 18, 25, 419 A.2d 638, 642 (1980); Commonwealth v. Walter Brown, 242 P......