Commonwealth v. Mitchell

• Citation: 369 A.2d 770,245 Pa.Super. 562
• Parties: COMMONWEALTH of Pennsylvania v. Richard A. MITCHELL, Defendant-Appellant.
• Decision Date: 18 February 1977
• Court: Superior Court of Pennsylvania

369 A.2d 770

245 Pa.Super. 562

COMMONWEALTH of Pennsylvania v. Richard A. MITCHELL, Defendant-Appellant.

Superior Court of Pennsylvania.

February 18, 1977

Submitted Dec. 16, 1975.

Wayne G. Hummer, Jr., and Lombardo & Hummer Lancaster, for defendant-appellant.

Charles A. Achey, Jr., Asst. Dist. Atty., and D. Richard Eckman Dist. Atty., Lancaster, for appellee.

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

CERCONE, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of the County of Lancaster. Appellant, Richard A. Mitchell claims that he was denied his right to a speedy trial in that he was not brought to trial within 180 days from the date on which the criminal complaint was filed against him, thus violating Pa.R.Crim.P. 1100(a)(2). ^[1]

A written complaint was filed against appellant on July 15, 1974, charging him with burglary and theft by unlawful taking. The 180 days would normally have run on January 11, 1974. On November 25, 1974, the Commonwealth filed a petition for an extension of time for commencing trial pursuant to Pa.R.Crim.P. 1100(c). ^[2] A hearing on the Commonwealth's petition was held on November 29, 1974, and the appellant, although notified, did not appeal. On January 7, 1975, the lower court granted the Commonwealth petition and extended the date for commencement of trial 120 days from January 7, 1975, or until May 7, 1975. On January 16, 1975, appellant filed a petition pursuant to Pa.R.Crim.P. 1100(f) ^[3] alleging that Rule 1100 of the Pennsylvania Rules of Criminal Procedure had been violated by the delay in the commencement of trial. Said petition was denied. On March 26, 1975, appellant renewed his application to dismiss, the lower court denied it and the matter proceeded to trial that same day and a jury verdict of guilty was returned also on the same day, March 26, 1975. In light of the fact that the trial was held within the 120 day extension granted on January 7, 1975, the seminal question in this case is whether, on January 7, the court below erred in granting the Commonwealth's petition for extension of time by extending the time for trial by 120 days from January 7, 1975. ^[4] We hold that the lower court did not err because we find that the delay in bringing the case to trial is within that type of 'judicial delay' which our Supreme Court recently held could justify the granting of a petition for extension of time pursuant to Rule 1100(c), Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (Filed: October 8, 1976).

Any application by the Commonwealth pursuant to Rule 1100(c) must be filed prior to the expiration of the 180 day period. Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976). In the instant case, the application was filed on November 25, 1975, approximately six weeks before the end of the 180 day period. Therefore, procedurally, the Commonwealth filed a timely petition for extension of time.

Subsection c of Rule 1100 provides for extensions of the mandatory period where despite due diligence by the Commonwealth, trial cannot be commenced within the 180 day mandatory period provided by the Rule. In analyzing the Commonwealth's petition for extension pursuant to Rule 1100(c) we find that the only reason given in requesting the extension was that the case had not been received by the court below until August 19, 1975 and that the docket had closed for presentation of case to the September Grand Jury of Lancaster County. Appellant admits that since Lancaster County did not have a scheduled criminal court term for the commencement of trial until January 13, 1975 it was inevitable that, without an extension, the 180 day rule would run and the charges would be dismissed. Anticipating this is problem the district attorney filed for his extension alleging that it would be impossible for the district attorney's office to prosecute appellant within the 180 day period despite due diligence on the part of the prosecution.

The reason the case had not been returned before the docket was closed was due to the fact that the preliminary hearing, which was originally scheduled for July 22, 1974, was not held until August 13, 1974. This was in violation of Pa.R.Crim.P. 140(f)(1) which provides that a preliminary hearing should be held no later than ten days after preliminary arraignment. ^[5] However, it was not due to any lack of diligence on the part of the prosecutor but rather, it was due to a continuance requested by the Justice of the Peace. ^[6]

In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (Filed: October 8, 1976) our Supreme Court reversed the decision of this court and noted that:

'The Superior Court, concluding that rule 1100 was intended to promote prompt action by the courts as well as by the prosecution, held that delays attributable to court administration could never justify an extension under rule 1100(c). The rule, however, was not intended to create such an inflexible result.'

What has occurred in the case at bar is that a three week delay at the district magistrate's office resulted in an unavoidable four month delay for trial. Our Supreme Court recently stated that:

'The 'Commonwealth' in the context of the Rule clearly refers to prosecutorial officers and not to the judiciary. Literally read, the Rule quite simply does not attempt to solve the problem of eliminating delay due to the judiciary; rather, it attempts to eliminate delay due to lack of due diligence on the part of prosecutorial officers.' Commonwealth v. Shelton, supra, --- Pa. at ---, 364 A.2d at 698.

The Shelton court later noted that 'judicial delay' may, under certain circumstances, justify an extension 'because of a causal relationship between the 'judicial delay' and the Commonwealth's inability to commence trial despite due diligence.' One of the examples cited by the court was, 'Situations where the Commonwealth is prepared to commence trial prior to the expiration of the mandatory period but the court because of scheduling difficulties or the like is unavailable.' The record of the hearing on the Commonwealth's petition for an extension of time clearly shows that because of the scheduling difficulties the case could not be heard prior to the expiration of 180 days. Thus this case is squarely within the mandate of the Shelton case. The court granted the Commonwealth an extension of 120 days thus specifying the period within which trial shall commence as mandated by Rule 1100(c), and the trial did, in fact, commence and conclude within the extension granted.

The delay in this case is within those circumstances which our Supreme Court has recognized as that type of 'judicial delay' which the court does not find objectionable, and the delay occurred even though the Commonwealth was diligent in attempting to bring the defendant to trial.

Accordingly, the judgment of sentence is affirmed.

HOFFMAN, J., files a dissenting opinion in which PRICE and SPAETH, JJ., join.

PRICE, J., files a dissenting opinion which SPAETH, J., joins.

HOFFMAN Judge, dissenting:

I join in the well-reasoned dissenting opinion by Judge PRICE, but an compelled to add a brief dissent because of confusion created by the Supreme Court's recent decisions in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). and Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

Appellant's preliminary hearing was originally scheduled for July 22, 1974, but was continued until August 13, 1974, because of scheduling difficulties experienced by the justice of the peace. The lower court subsequently granted the Commonwealth's petition to extend pursuant to Rule 1100(c). However, a prerequisite to such an extension is that the Commonwealth exercise due diligence in bringing an accused to trial. Judge PRICE notes that the Supreme Court in Commonwealth v. Mayfield, supra, held that the judiciary as well as the prosecutor must exercise due diligence. See also, ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 3.8 (Approved Draft, 1972); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial § 1.2 (Approved Draft, 1968). Further, Judge PRICE notes that the justice's failure to comply with Rule 140(f) ^[1] precludes a finding that the Commonwealth demonstrated due diligence. I agree.

The Supreme Court reversed our holding in Mayfield, see Commonwealth v. Mayfield, 239 Pa.Super. 279, 362 A.2d 994 (1976), and stated that '(t)he Superior Court, concluding that rule 1100 was intended to promote prompt action by the courts as well as by the prosecution, held that delays attributable to court administration could never justify an extension under rule 1100(c). The rule, however, was not intended to create such an inflexible result.' Commonwealth v. Mayfield, supra, --- Pa. at ---, 364 A.2d at 1348. Nonetheless, Justice Roberts, writing for a unanimous court, was careful to note that the rule did not exempt the judiciary from the exercise of due diligence.

The Majority, however, resolves the instant problem by relying on language in Commonwealth v. Shelton, --- Pa. ---, 364 A.2d 694 (1976), rather than on Commonwealth v. Mayfield, supra: 'What has occurred in the case at bar is that a three week delay at the district magistrate's office resulted in an unavoidable four month delay for trial. Our Supreme Court recently stated that:

"The 'Commonwealth' in the context of the Rule clearly refers to prosecutorial officers and not to the judiciary. Literally read, the Rule quite simply does not attempt to solve the problem of eliminating delay due to the judiciary; rather, it attempts to eliminate delay due to lack of due diligence...