Commonwealth v. Hoffman

• Decision Date: 28 April 1978
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Steven HOFFMAN.
• Court: Pennsylvania Superior Court

386 A.2d 138

255 Pa.Super. 66

COMMONWEALTH of Pennsylvania, Appellant, v. Steven HOFFMAN.

Superior Court of Pennsylvania.

April 28, 1978

Argued Sept. 15, 1976.

Frank J. Williams, Asst. Dist. Atty., West Chester, for Commonwealth, appellant.

Richard H. Anderson, Media, for appellee.

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

PER CURIAM:

The six Judges who heard this case being equally divided, the order is affirmed.

PRICE, J files an opinion in support of affirmance in which HOFFMAN and SPAETH, JJ., join.

An opinion in support of reversal is filed in which JACOBS, President Judge, CERCONE and VAN der VOORT, JJ., join.

WATKINS former President Judge, did not participate in the consideration or decision of this case.

OPINION IN SUPPORT OF AFFIRMANCE

PRICE, Judge.

On September 24, 1975, the trial judge, sitting without a jury, found the appellant guilty of burglary. ^[1] The appellant, alleging that his Pa.R.Crim.P. 1100 right to a speedy trial had been violated, filed a timely post-trial motion in arrest of judgment. After conducting a hearing on the motion, the court below granted the appellant's motion and arrested judgment. This appeal followed.

Pa.R.Crim.P 1100(a)(2) provides that: "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." Instantly, the appellant was charged with various offenses by a complaint filed on December 20, 1974. Thus, under the precept of Rule 1100(a)(2), the Commonwealth had until June 18, 1975, to bring the appellant to trial. The appellant, however, was not brought to trial until September 24, 1975, 278 days after the filing of the criminal complaint against him.

In reviewing an alleged Rule 1100 violation, we recognize that all periods of delay beyond the prescribed period (180 days) " '. . . must be either excluded from the computation (of the period, Pa.R.Crim.P. 1100(d)) or justified by an order granting an extension pursuant to the terms of the rule (Pa.R.Crim.P. 1100(c)) if the Commonwealth is to prevail.' " Commonwealth v. Shelton, 469 Pa. 8, 14, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O'Shea, 465 Pa. 491, 495, 350 A.2d 872, 874 (1976). The record herein shows that only twelve days can be excluded from the computation of the prescribed period under the provisions of Rule 1100(d). ^[2] The Commonwealth, however, argues that all further delay in trial commencement can be justified by two orders entered by the court below extending the mandatory period. The sole issue before us is whether or not the lower court properly granted the Commonwealth additional time within which to bring the appellant to trial.

Under the provisions of Pa.R.Crim.P. 1100(c), the Commonwealth should be granted an extension of time for commencement of trial if it can demonstrate on the record that trial could not be commenced within the prescribed period despite its due diligence. Specifically, the section provides that:

"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, 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."

Here, the Commonwealth petitioned the lower court to extend the time for trial commencement on June 16, 1975. The Commonwealth predicated its petition upon the following averred facts: (1) that the defendant had waived his Rule 1100 right to a speedy trial for a twelve day period during which his application for accelerated rehabilitative disposition was being considered; (2) "the defendant's case was not reached during the May Criminal Trial Term (when it had been listed for trial); (3) On or about May 22, 1975, (defendant's counsel) advised the Court that his client waived his right to jury trial and requested to be tried by a Judge without jury; (4) A Nonjury Trial has been scheduled for July 21, 1975." The defendant filed an objection to the Commonwealth's petition in which he denied the Commonwealth exercised due diligence in bringing him to trial because ". . . no explanation has been provided by the Commonwealth why trial was not scheduled prior to the May Term or why trial could not have been scheduled earlier than July 21, 1975." The lower court scheduled a hearing on the Commonwealth's petition for July 15, 1975.

On July 15, 1975, the following colloquy occurred between the assistant district attorney and the hearing judge:

"MR. WILLIAMS (ASSISTANT DISTRICT ATTORNEY): We will have the extension hearing prior to that non-jury trial because the defense counsel is not available here today. ^[3]

THE COURT: Why not do it today? Did he file within the time?

MR. WILLIAMS: There is a good reason. The case wasn't reached when it was on the trial list.

THE COURT: Get me an Order extending it to Monday or whatever, to the next term if you want." (emphasis added)

The hearing judge then extended the time for trial commencement until the trial term beginning August 4, 1975.

There is no doubt that the hearing judge improperly granted the Commonwealth an extension of time because he did so without first ascertaining that the Commonwealth exercised due diligence in attempting to bring the defendant to trial. Furthermore, the Commonwealth erred by failing to assert in its petition to extend all of the facts upon which it based its claim of due diligence. For example, on July 23, 1975, the Commonwealth filed a second petition to extend. The lower court conducted a hearing on that petition on September 18, 1975. At that hearing, the Commonwealth explained to the court below for the first time that the case had not been reached for trial during the May Trial Term because no courtrooms were available. This fact should have been specifically stated in the Commonwealth's first petition to extend. Pa.R.Crim.P. 1100(c) grants an accused the right to answer the Commonwealth's request for an extension of time. If the petition to extend does not fully aver the factual basis of the Commonwealth's request, then the accused is denied the knowledge necessary to answer the petition.

Although it noted in its petition the twelve day period of delay caused by the defendant's request to be admitted into the accelerated rehabilitative program, the Commonwealth primarily complained that trial could not be timely commenced because the case could not be reached during the May Trial Term due to an overcrowded court docket. In Commonwealth v. Mayfield,469 Pa. 214, 364 A.2d 1345 (1976), the Pennsylvania Supreme Court ruled that the Commonwealth may be granted an extension of time predicated upon judicial delay. The court, however, cautioned that such an extension may be granted 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 1349-50. Certainly, the woefully inadequate hearing on the Commonwealth's first extension petition established neither requirement on the record.

Normally, when we review a case such as the one now before us, which arose prior to the Mayfield decision and which does not evidence strict record compliance with the Mayfield requirements, we will remand the case to the court below for an evidentiary hearing to determine the merits of the Commonwealth's petition to extend. E. g., Commonwealth v. Stabler, 251 Pa.Super. 194, 380 A.2d 444 (1978); Commonwealth v. Lewis, 247 Pa.Super. 46, 371 A.2d 1318 (1977); see also Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978). The instant case, however, does not warrant such a disposition. Here, even if we ignore the procedural deficiencies of the first extension hearing and assume, arguendo, that the Commonwealth deserved an initial extension, the hearing on the Commonwealth's second petition to extend conclusively revealed that the Commonwealth did not exercise due diligence in bringing the defendant to trial by the August 4 extension date set by the court below.

As previously recited, on July 23, 1975, the Commonwealth applied to the court below for a second extension of time. The court below scheduled a hearing on that petition for September 18, 1975. At that hearing, the assistant district attorney explained to the court below that the case had been listed for trial on July 21, 1975, but could not be reached on that date because five other cases had been listed ahead of it. Because of this, the Commonwealth, on July 21, had obtained a continuance of the case until it could next be listed at the top of the trial list, which was on September 18, 1975. The lower court extended the case until September 24, 1975, when trial commenced.

We are not convinced, however, that the Commonwealth did all it could do to bring the defendant to trial. At the second extension hearing, the assistant court administrator for the Chester County Court of Common Pleas testified that he could give a case priority listing if he is requested to do so by the Commonwealth. He also...