Commonwealth v. Lamb

• Decision Date: 14 January 1983
• Citation: 309 Pa.Super. 415,455 A.2d 678
• Parties: COMMONWEALTH of Pennsylvania v. William Charles LAMB, Appellant.
• Court: Pennsylvania Superior Court

455 A.2d 678

309 Pa.Super. 415

COMMONWEALTH of Pennsylvania v. William Charles LAMB, Appellant.

Superior Court of Pennsylvania.

January 14, 1983

Submitted Sept. 23, 1981. [Copyrighted Material Omitted]

Robert L. McQuaide, Gettysburg, for appellant.

Gary E. Hartman, Dist. Atty., Gettysburg, for Commonwealth appellee.

Before BROSKY, McEWEN and BECK, JJ.

McEWEN Judge:

We here consider an appeal from the judgment of sentence imposed after appellant was convicted by a jury of conspiracy to commit robbery and acquitted of the charge of robbery. We affirm.

Appellant was convicted on the basis of the testimony of Brenda Ramos, who implicated him as a co-participant with her and co-defendant John Shenk, in an unsuccessful attempt to rob a diner in Gettysburg. Ramos, herself, was arrested shortly after the robbery attempt, subsequently pleaded guilty to one count of robbery and testified on behalf of the Commonwealth at the consolidated trials of appellant and co-defendant John Shenk. A review of the testimony presented by the Commonwealth witnesses, Brenda Ramos and Corporal Hofe of the Gettysburg police, who arrested her shortly after the robbery, is helpful to our study of the issues presented by appellant.

Brenda Ramos testified that she was a friend of the appellant's co-defendant, John Shenk, and was, at the time of the robbery, living in the Shenk home in Gettysburg. On the evening of December 4, 1978, she accompanied Shenk to a mobile home in Gettysburg where appellant resided. After arriving at the mobile home, appellant, Shenk, appellant's roommate and she were drinking and engaged in a discussion of a proposal by Shenk that they commit a robbery. After the roommate of appellant retired to bed, Ramos testified that she, appellant and Shenk departed the mobile home and walked around the town of Gettysburg before proceeding toward the Lincoln Diner. Appellant and Shenk momentarily left her, approached the diner, looked in the windows to determine how many people were present and then rejoined Ms. Ramos. Ramos testified that, after a brief wait, Shenk handed her a gun and she crossed the street, went into the diner, pulled the gun out of her pocket, pointed it at a woman behind the counter and demanded money. When the woman called the police, Ramos left the diner, returned to the waiting Shenk and appellant and handed Shenk the gun before fleeing the area with appellant. She was thereafter apprehended by Corporal Hofe of the Gettysburg police, charged with two counts of robbery as well as a count of carrying a firearm without a license and pleaded guilty to one count of robbery.

Corporal Michael Hofe of the Gettysburg police, the only other witness presented at trial by the Commonwealth, testified that he arrived at the scene of the robbery and observed two persons, one of whom he believed was Brenda Ramos, and the other, a male Caucasian, running near the Lincoln Diner shortly after the robbery was attempted. Corporal Hofe arrested Brenda Ramos within several blocks of the scene. While the male was not apprehended,Corporal Hofe testified that his height, hair color and length, and his physical characteristics were identical to those of appellant.

Appellant was charged some three months after the robbery at the diner and, following his conviction, was sentenced to a term of imprisonment of one to four years.

Appellant first contends that the Commonwealth failed at the Rule 1100 extension hearing to prove due diligence as required by Pa.R.Crim.P. 1100(c)(3) and that, therefore, the court erred when it granted the petition of the Commonwealth for an extension of time within which to commence trial. The prosecution of appellant was initiated when the complaint charging him with robbery and conspiracy was filed on March 14, 1979. The Rule 1100 rundate was September 10, 1979. The trial commenced on September 19, 1979, 189 days after the filing of the complaint. The Commonwealth filed a petition for an extension of time on June 15, 1979, well within the 180 day period, alleging that, despite due diligence, the Commonwealth would be unable to try the defendant within the prescribed period for the reason that the trial list for the June term was such that the case could not be scheduled. The petition of the Commonwealth requested that the time be extended through the commencement of the next criminal trial term on September 17, 1979. At the hearing held on the petition for an extension, both counsel for appellant and counsel for the co-defendant John Shenk joined in a stipulation with the District Attorney that all cases scheduled for trial during the May and June 1979 terms of criminal court had Rule 1100 rundates which would expire prior to the rundate in the instant case. Nevertheless, they requested that the Commonwealth present evidence at the hearing on the issue of due diligence. The Commonwealth presented no testimony at the hearing but represented to the court that it was ready to proceed to trial prior to the rundate and made reference to the judicial delay argument which had been presented at other Rule 1100 extension hearings held the same day in other matters. The record of the extension hearing reflects the following exchange between the court and the Assistant District Attorney on this point:

The Court: Do you wish to produce any evidence as to the issue of due diligence, Mr. Hartman, or are you relying upon your prior argument?

Mr. Hartman: I am relying upon the prior argument that the term would indicate that the evidence would be that I would be prepared to go to trial at the time but there were no trial dates. Therefore, I'm arguing that the Commonwealth is prepared to go to trial but in the September term which is the basis for the motion.

The Court: The court will grant the request for its extension in each case. (N.T. 8/6/79, pp. 2, 3).

Following the expiration of the original September 10, 1979 rundate, appellant filed a written motion to dismiss the charges against him pursuant to Rule 1100(f) on the ground that the Commonwealth had failed to establish due diligence at the hearing on the petition to extend. The court denied the motion. Trial commenced the following day on September 19, 1979, the 189th day after the filing of the complaint, and the jury returned with verdicts of not guilty of the charge of robbery and guilty of the charge of conspiracy to commit robbery. Appellant preserved in post-verdict motions the Rule 1100 issue.

The trial court, on January 30, 1980, sua sponte, ordered that a supplementary evidentiary hearing be held to afford the Commonwealth the opportunity to present additional evidence of its due diligence in attempting to bring appellant to trial within 180 days after the filing of the complaint. At the supplemental evidentiary hearing, over the standing objection of defense counsel, the Commonwealth presented testimony indicating that it would have been possible for the District Attorney to try appellant by July 26, 1979 or any date thereafter but that, due to the court calendar and system of assigning trial dates in Adams County, it was unable to assign a trial date to appellant within the 180 day period.

Appellant contends: (1) that the Commonwealth wholly failed to establish due diligence at the initial hearing on the petition to extend, in violation of Rule 1100(c)(3); (2) that it was error for the court to conduct, after the trial, the supplemental evidentiary hearing on the petition to extend because it allowed the Commonwealth to present evidence of its due diligence well after the expiration of the 180 day period and, thereby, amounted to a nunc pro tunc granting of an extension; and (3) that, for those reasons, the charges against appellant should be dismissed and he should be discharged in accordance with Pa.R.Crim.P. 1100(f).

Since we have concluded, on the basis of the record, that the Commonwealth met the requirements of Pa.R.Crim.P. 1100(c)(3) by establishing at the initial extension hearing that, despite due diligence, trial could not be commenced within the prescribed period, we need not address the contention of appellant that it was error for the court to order the supplemental evidentiary hearing on the petition to extend. ^[1] The Pennsylvania Supreme Court enumerated the requirements for an extension of time under Rule 1100(c) in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976):

[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) the certification that the 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 cause of the court delay and reason why the delay cannot be avoided. Id. at 222, 364 A.2d at 1349-1350.

It is settled that judicial delay may serve as the basis for an extension of time under Rule 1100(c). Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979); Commonwealth v. Mayfield supra; Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Bytheway, 290 Pa.Super. 148, 434 A.2d 173 (1981); Commonwealth v. Eck, 272 Pa.Super. 406, 416 A.2d 520 (1979). However, before such an extension under Rule 1100(c) may be granted, the record must show that the requirements of Rule 1100(c) as defined in Mayfield have been satisfied. Commonwealth v. Mayfield, supra, 469 Pa. at 222, 364 A.2d at 1349-50. The Commonwealth must meet this burden of proof by a preponderance of the evidence. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Mines, 282 Pa.Super. 157, 422 A.2d 876 (1980). A mere allegation of due diligence by the...