Com. v. Nellom

• Decision Date: 13 November 1989
• Citation: 388 Pa.Super. 314,565 A.2d 770
• Parties: COMMONWEALTH of Pennsylvania v. Frank NELLOM, Appellant. 3222 PHILA. 1988
• Court: Pennsylvania Superior Court

Page 770

565 A.2d 770

388 Pa.Super. 314

COMMONWEALTH of Pennsylvania v. Frank NELLOM, Appellant.

3222 PHILA. 1988

Superior Court of Pennsylvania.

Submitted May 15, 1989.

Filed Aug. 29, 1989.

Reargument Denied Nov. 13, 1989.

Mitchell S. Strutin, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.

HOFFMAN, Judge.

This is an appeal from a judgment of sentence for rape and involuntary deviate sexual intercourse. Appellant contends, inter alia, that the trial court erred in (1) granting the Commonwealth an extension of time under Pa.R.Crim.P. 1100, and (2) ruling that appellant's character witness could be cross-examined as to her knowledge of his prior robbery conviction. ¹ For the following reasons, we agree with appellant's second contention and, accordingly, we vacate the judgment of sentence and remand for a new trial.

On March 28, 1987, appellant was arrested for robbery, rape, and involuntary deviate sexual intercourse arising out of an incident at the Pleasure Chest, an adult boutique in Philadelphia. On October 20, 1987, appellant was convicted by a jury of robbery, but because the jury was "hopelessly deadlocked" on the remaining charges, a mistrial was declared on those charges. Following the denial of appellant's post-trial motions on the robbery charge, he was sentenced to a one-to-four-year term of imprisonment.

Appellant's retrial on the rape and IDSI charges was initially listed for December 14, 1987. The trial was continued a number of times, and, on March 2, 1988, the Commonwealth filed a petition to extend the date for retrial pursuant to Rule 1100(c)(1). The court delayed decision on the petition until the time of trial. Appellant came to trial on May 9, 1988, and a hearing was held on the Commonwealth's petition. On that same day, the court granted the petition, the run date was extended to June 1, 1988, and appellant proceeded to trial. On May 10, 1988, following a trial by jury, appellant was found guilty of rape and IDSI. Post-verdict motions were filed and denied. On October 12, 1988, appellant was sentenced to an aggregate term of imprisonment of twelve-to-thirty years. ² On October 18, 1988, appellant filed a Petition for Reconsideration of Sentence. This appeal followed the denial of the petition with present counsel appointed to replace trial counsel.

Initially, appellant contends that the trial court erred in granting the Commonwealth's petition for an extension of time pursuant to Pa.R.Crim.P. 1100. Appellant notes that, under Rule 1100(e)(1), the Commonwealth had 120 days in which to bring him to trial. ³ Appellant argues that, because a new trial did not commence until May 9, 1988, well beyond the February 16, 1988 mechanical run-date, and because the Commonwealth did not prove due diligence in bringing him to trial pursuant to Rule 1100(c)(3), ⁴ he is entitled to be discharged. The Commonwealth, on the other hand, maintains that they were properly granted an extension because the undisputed evidence in the record establishes that they were duly diligent in proceeding to try appellant because the delays beyond the 120 days were caused by appellant's requested continuance, his failure to be brought down, and judicial backlog. We agree.

In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), our Supreme Court stated:

[T]he 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. at 222, 364 A.2d at 1349-1350. The Commonwealth has the burden of showing, by a preponderance of the evidence, that it has met the due diligence requirements of Rule 1100(c). Commonwealth v. Byrd, 325 Pa.Super. 325, 331, 472 A.2d 1141, 1145 (1984). Moreover, in reviewing the trial court's ruling, this court must consider only the Commonwealth's evidence and so much of appellant's evidence, as read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Hollingsworth, 346 Pa.Super. 199, 206, 499 A.2d 381, 384 (1985), allocatur denied, 515 Pa. 575, 527 A.2d 536 (1987).

At the hearing on the petition to extend the time of retrial, the Commonwealth moved the Quarter Sessions file into evidence. Appellant failed to introduce any evidence to challenge the accuracy of the facts contained in the Quarter Sessions file. It is well-settled that "a finding of due diligence may be based entirely on judicial notice taken by the hearing court of facts contained in uncontested notations in court records." Id. 346 Pa.Super. at 213, 499 A.2d [388 Pa.Super. 319] at 387. See also Commonwealth v. Lafty, 333 Pa.Super. 428, 482 A.2d 643 (1984) (due diligence established by notations in court record); Commonwealth v. Byrd, 325 Pa.Super. 325, 472 A.2d 1141 (1984) (due diligence and judicial delay established by notations in Quarter Sessions file moved into evidence by Commonwealth). The Quarter Sessions file and record reveal the following facts.

The retrial was initially listed for December 14, 1987. At a pre-trial listing on December 2, 1987, the calendar judge continued the case until January 6, 1988, pending disposition of post-trial motions and sentencing on the robbery charge. The court also certified January 6, 1988, as the earliest possible date consistent with the court's business. At the request of appellant's counsel, on January 6, 1988, the court continued the case to February 9, 1988, so that counsel could obtain the notes of testimony from the first trial. Accordingly, the mechanical run-date of February 16, 1988 was automatically extended thirty-four days to March 22, 1988. See Commonwealth v. Sanders, 380 Pa.Super. 78, 84, 551 A.2d 239, 242 (1988); Pa.R.Crim.P. 1100(d)(3)(ii). ⁵

On February 9, 1988, the last listing before the extended run-date, appellant was sentenced on the robbery charge. The court then listed the remaining charges for trial on April 27, 1988, certifying it as the earliest possible date (EPD). ⁶ Because the case was scheduled for the earliest possible date consistent with the court's business, this time is not chargeable to the Commonwealth. See Commonwealth v. Byrd, supra. On April 27, 1988, the court further continued the case to May 2, 1988, certifying that date as the earliest possible date. This continuance was ordered because, although a "bringdown order" had been issued for appellant's appearance, he was not brought down from the Graterford State Correctional Institution. Likewise, on May 2, 1988, the court continued the case to May 6, 1988, because, although a writ had been issued for appellant's appearance, he again was not brought down. The court certified May 6 as the earliest possible date. Because the May 2 and May 6, delays resulted despite the issuance of a bringdown and a writ for appellant's appearance, they are not chargeable to the Commonwealth. See Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983) (due diligence exercised notwithstanding delay caused by failure of court's warrant service to serve bench warrant on appellant); Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983) (no rule 1100 violation where delay caused by trial coordinator's failure to prepare revised "bringdown" order). The record reveals that the final continuance from May 6, to May 9, 1988, was caused by excludable judicial delay, because the assigned judge was then engaged in a jury trial. See Commonwealth v. DeBooth, 379 Pa.Super. 522, 531, 550 A.2d 570, 575 (1988). Accordingly, because each continuance after the extended run-date of March 22, 1988 was caused either by appellant's failure to appear despite the Commonwealth's diligence or judicial delay, the trial court properly granted the Commonwealth's petition for extension of time. See Commonwealth v. Gibbons, 379 Pa.Super. 285, 549 A.2d 1296 (1988).

Appellant next contends that the trial court erred in ruling that his character witness could be cross-examined regarding appellant's previous conviction for robbery, which arose out of the same incident as the sexual offenses for which he was being tried. Appellant argues that the court's ruling denied him his right to present evidence of good character. Appellant's offer of proof on this issue, and the trial court's ruling, occurred during the following exchange:

Mr. Mallon [appellant's counsel]: Judge, I have a character witness and I just wanted to make it clear that in the first trial in this matter, that this man was convicted of one of the charges. And obviously, that ought not to be a subject of cross-examination of a character witness, since it is the same incident.

Mr. Sax [prosecution]: I strenuously disagree. The defendant's reputation is different once he has been convicted of a crime of crimen falsi. Obviously that conviction is not admissible generally. And I have no intention of telling them that, that is why I didn't ask him what the jury did in this other case. This reputation that is going to come in, I want to know if the other members of the community know about his robbery conviction.

Mr. Mallon: I object. It is the same incident. The question is whether this incident happened. And his testimony is he is innocent. The jury should know aside from the allegations this woman made against him, his reputation--

THE COURT: The questions are not what caused his reputation six months now [sic], it is what is his reputation now.

Mr. Mallon: Your Honor is ruling--that may be his position. You are ruling that he is allowed to cross-examine him about the fact that he was convicted in this very same case?

THE COURT: Yes, on the robbery.

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