Commonwealth v. Bulling
Decision Date | 29 June 1984 |
Citation | 331 Pa.Super. 84,480 A.2d 254 |
Parties | COMMONWEALTH of Pennsylvania v. Gregory BULLING, Appellant. |
Court | Pennsylvania Superior Court |
Submitted Jan. 18, 1983. [Copyrighted Material Omitted]
Ronald Segal, Philadelphia, for appellant.
Ronald Eisenberg, Asst. Dist. Atty., Philadelphia, for Com appellee.
Before CAVANAUGH, ROWLEY, and HOFFMAN, JJ.
Appellant challenges: (1) the four extensions of the Rule 1100 rundate (2) the sufficiency of the evidence; (3) the lower court's denial of his suppression motion; and (4) the lower court's decision to allow a Commonwealth witness to testify as an expert. Because we find all of appellant's claims meritless, we affirm the lower court's judgment of sentence.
On December 13, 1979, appellant was arrested and charged with possession with intent to deliver and delivery of a controlled substance and conspiracy, after police observed appellant receive two credit cards in exchange for a small plastic packet later found to contain heroin. A preliminary hearing was originally scheduled for December 24, 1979, however, on that date the first in a long series of delays occurred which were to characterize the procedural history of this case. Eventually, on June 3, 1981 a hearing was held on appellant's motion to suppress evidence, namely, the credit cards and packet of heroin. Immediately following the hearing, and the denial of appellant's suppression motion, a non-jury trial commenced. At the conclusion of trial, appellant was found guilty on all charges. Post-verdict motions were timely filed and denied. On November 5, 1981 appellant was sentenced to two concurrent prison terms of three-to-twenty-three months. This appeal followed. [1]
Appellant alleges that the time for trial was improperly extended, pursuant to Pa.R.Crim.P. 1100(c), on four separate occasions. However, before turning to the four Rule 1100 extensions in the present case, we must first consider some of the principles applicable to Rule 1100 extensions in general. Under Rule 1100(c), the Commonwealth may be granted an extension of time for trial if a court finds that trial cannot be commenced within the prescribed period despite the exercise of due diligence by the Commonwealth. Pa.R.Crim.P. 1100(c); Commonwealth v. Sharp, 287 Pa.Superior Ct. 314, 430 A.2d 302 (1981). But, the Commonwealth bears the burden of showing, by a preponderance of the evidence, that it has acted with due diligence, and has thereby complied with the mandate of Rule 1100(c). Commonwealth v. Ehredt, 255 Pa.Superior Ct. 84, 386 A.2d 147 (1978); Commonwealth v. Jenkins, 248 Pa.Superior Ct. 300, 375 A.2d 107 (1977). When we review a lower court's ruling, relative to whether the Commonwealth has met its burden of proving due diligence, we only consider the evidence presented at the hearing by the Commonwealth and so much of the evidence presented by the defendant which remains uncontradicted. Commonwealth v. Sharp, supra; Commonwealth v. Sinor, 264 Pa.Superior Ct. 178, 399 A.2d 724 (1979). In summarizing the relevant procedural history of the instant case, we note that a criminal complaint was filed against appellant on December 13, 1979, making the original Rule 1100 rundate June 10, 1980. However, pursuant to four Commonwealth extension petitions, the time for trial was successively extended to August 25, 1980; January 20, 1981; March 24, 1981; and June 4, 1981. On June 3, 1981, appellant was tried and found guilty on all charges.
With the foregoing facts and principles in mind, we shall now address appellant's challenge to each of the four extensions seriatim:
I. The Extension from June 10, 1980 to August 25, 1980
On June 3, 1980, a Commonwealth extension petition was timely filed pursuant to Rule 1100(c). A hearing on this petition was held before the Honorable Ned L. Hirsh on June 26, at which time Judge Hirsh granted the petition and extended the time for trial until August 25, 1980. Although the record does not contain a transcript of the June 26 extension hearing, [2] we are able to conclude that the Commonwealth's first extension petition was properly granted. This Court has previously held that the Commonwealth need not prove that it acted with due diligence on prior trial or hearing dates for which a Rule 1100 extension was not sought. Commonwealth v. Tann, 298 Pa.Superior Ct. 505, 444 A.2d 1297 (1982); Commonwealth v. Sharp, supra. Rather, the relevant inquiry at the extension hearing is whether the Commonwealth demonstrated due diligence at the last listing before the rundate at which it was unable to bring appellant to trial. Commonwealth v. Tann, supra; Commonwealth v. Sharp, supra. Here, the final listing prior to the original June 10, 1980 rundate was May 13, 1980. On that date, a preliminary hearing was held at which the Commonwealth established a prima facie case against appellant. [3] Following the preliminary hearing, appellant filed a motion to quash return of the transcript. See Pa.R.Crim.P. 306, 307. It would be unreasonable and unrealistic to expect that this motion could have been litigated and appellant brought to trial after the May 13 preliminary hearing, but before the June 10 rundate. Indeed, it was not until July 3, 1980, that appellant's motion to quash return of the transcript was denied. Therefore, we must agree with the Commonwealth that, while it was unable to try appellant by the original rundate, it diligently advanced toward trial by timely establishing a prima facie case at the preliminary hearing. Accordingly, we find that the Commonwealth exercised due diligence prior to June 10, 1980, and that its first extension petition was, therefore, properly granted.
Subsequent to the granting of the Commonwealth's first extension petition, appellant executed two written waivers of the Rule 1100 rundate. See Pa.R.Crim.P. 1100(d)(2). [4] The first waiver, executed on August 12, 1980, extended the time for trial to September 17, 1980; the second one was executed on September 17, and extended the trial deadline to November 22, 1980.
.Commonwealth petition filed 7-17. Timely filed.
.2-13 to 2-22, voluntary defender unprepared. Less than 30 days.
.Not chargeable, 4-19 5-30, wrong defendant brought down.
.5-30--7-13, motion to suppress denied. Judge Cipriani recused himself.
.7-13--8-15, Judge Shiomos recused himself had defendant previously on a jury trial.
.It would appear that there are three court continuances and one defense continuance. No Commonwealth continuance, as far as I can ascertain from this record.
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