Com. v. Roman

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before O'BRIEN; O'BRIEN
• Citation: 494 Pa. 440,431 A.2d 936
• Decision Date: 02 July 1981
• Parties: COMMONWEALTH of Pennsylvania v. Gary ROMAN, Appellant.

Page 936

431 A.2d 936 494 Pa. 440 COMMONWEALTH of Pennsylvania
v.
Gary ROMAN, Appellant. Supreme Court of Pennsylvania. Submitted March 2, 1981.
Decided July 2, 1981.

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[494 Pa. 442] Jesse E. Shearin, Jr., Greenville, for appellant.

Ross E. Cardas, Asst. Dist. Atty., Mercer, for appellee.

Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

[494 Pa. 443] OPINION OF THE COURT

O'BRIEN, Chief Justice.

This is an appeal from a denial of relief and dismissal of appellant's petition which was filed pursuant to the Post Conviction Hearing Act. ¹

On or about October 13, 1973, Mark Chancellor was shot through the heart and buried in a shallow grave in Mercer County, Pennsylvania. The victim had been seeking admission to the Breed Motorcycle Club, and arrived at a farm in Mercer County for an initiation. Apparently, an altercation developed between the victim and various members of the motorcycle gang and ended in Chancellor's death.

Appellant, Gary Roman, was charged in connection with the homicide, and was brought to trial on October 22, 1974, in Mercer County. A jury found him guilty of second degree murder. Following the denial of post-trial motions, the trial judge imposed a sentence of ten-to-twenty years.

Appellant's direct appeal resulted in a reversal of his judgment of sentence and remand for a new trial because of the admission at his first trial of prejudicial evidence. See Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976). On retrial, appellant was convicted of second degree murder and was again sentenced to a term of imprisonment of ten-to-twenty years. Appellant perfected a direct appeal of that judgment of sentence to this Court where we dismissed all issues except one as being devoid of merit. We considered the remaining issue to be waived and affirmed the judgment of sentence. See Commonwealth v. Roman, 478 Pa. 619, 387 A.2d 661 (1978).

Thereupon, appellant filed a PCHA petition, which was later amended by court-appointed counsel. In his amended petition, appellant raised numerous issues, including four counts of ineffective assistance of counsel. Appellant limited testimony at an evidentiary hearing on October 25, 1979, to the ineffective assistance of counsel issues, thereby abandoning all other grounds for post-conviction relief. After [494 Pa. 444] the submission of briefs, the hearing judge dismissed appellant's petition and denied relief. It is from that Order of July 28, 1980, that this appeal ensues.

Initially, appellant contends that trial counsel was ineffective for failing to file a petition to dismiss for a violation of Pa.R.Crim.P. 1100. This Rule, as we have reviewed innumerable times, mandates:

"(a)(1) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.

"(a)(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."

Pa.R.Crim.P. 1100(a)(1) & (a)(2). If a case is not called to trial within the designated time period, and if the Commonwealth does not petition for an extension of time, a defendant may apply for an order dismissing the charges with prejudice. Pa.R.Crim.P. 1100(f). However, Rule 1100 provides for the extension of the time period in two ways. According to Pa.R.Crim.P. 1100(c):

"(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,

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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 granting such application shall specify the date or period within which trial shall be commenced."

In addition to a timely application for an extension of the time in which to commence trial, certain periods of delay are automatically excluded from the running of the time period under Pa.R.Crim.P. 1100(d)(1) and (2). These automatic [494 Pa. 445] exclusions encompass any period of delay which results from the unavailability of the defendant or his attorney or that part of any defense continuance which exceeds thirty days.

Herein, the criminal complaint charging appellant with murder was filed on November 5, 1973, by the Pennsylvania State Police. Appellant, having left the Commonwealth shortly after Chancellor's death, was arrested in New Jersey on other charges on November 13, 1973. At the arraignment on the other charges, appellant was informed of the outstanding murder charges lodged against him in Pennsylvania. Appellant was incarcerated in New Jersey from November 13, 1973, until July 16, 1974, when he was sentenced on the charges for which he was imprisoned. The Pennsylvania authorities finally tried appellant in the instant case on October 22, 1974, 351 days after the complaint was filed.

In order to comply with the mandate of Rule 1100, appellant must have been brought to trial by August 2, 1974, 270 days from the filing of the complaint. The Commonwealth did not do so and did not file a petition seeking an extension of time in which to try appellant. The prosecution reasoned that the period of time during which appellant was incarcerated in New Jersey and under the control of the authorities there constituted "... such period of delay ... as results from ... the unavailability of the defendant ...," Pa.R.Crim.P. 1100(d)(1), and was automatically excluded from the time period in which appellant had to be tried.

In order for time during which a defendant is incarcerated in another jurisdiction to be excluded pursuant to Pa.R.Crim.P. 1100(d)(1), the Commonwealth must prove by a preponderance of the evidence that, despite due diligence, the presence of the defendant could not be secured. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977).

A review of the record evinces a finding of due diligence by the Commonwealth in attempting to acquire [494 Pa. 446] custody of appellant for prosecution in Pennsylvania. The District Attorney in Mercer County, Joseph J. Nelson, contacted the Deputy Secretary of the Commonwealth of Pennsylvania to initiate extradition proceedings on December 7, 1973....