Commonwealth v. Stumpo

Citation5 Phila. 179
Decision Date05 February 1981
Docket Number499-509
PartiesCommonwealth v. Frank Stumpo
CourtCommonwealth Court of Pennsylvania

5 Phila. 179

Frank Stumpo

Nos. 499-509

Common Pleas Court of Philadelphia County, Pennsylvania

February 5, 1981


(1) When an extension in time is granted under Pa. R. Crim. P. 1100 the record must establish the reasons why delay could not have been avoided and there has to be a certification that trial was scheduled for the earliest date consistent with the court's business

(2) When a 90 day extension was granted to be effective only after an outstanding motion for recusal would be decided the record could not show that this extension (90 days) was the earliest possible date for trial.

Joseph Casey, Assistant District Attorney, for the Commonwealth

Nicholas Nastasi, Esquire, for Defendant

GUARINO, J., and WALLACE, J., DURHAM, J., concurring in result.


On November 15, 1979, the defendant, Frank Stumpo, was convicted of one count of simple assault and two counts of official oppression after a jury trial before the Honorable ANGELO A. GUARINO. A Court en Banc consisting of Judge GUARINO, Judge MICHAEL E. WALLACE, and Judge CHARLES L. DURHAM was empaneled to hear defendant's post-trial motions. The hearing was held May 19, 1979. Defendant argued several grounds for reversal of the jury's verdict. He argued that a mistrial should have been granted because of improper questioning of witnesses by the prosecutor, because of attempted introduction of evidence by the prosecutor for the purpose of misleading the jury, because of prejudicial influence on the jury of media coverage of their deliberations, and because the Commonwealth withheld evidence favorable to the defense. Defendant further argued that the Court erred in its instructions to the jury, and that the verdict was contrary to the evidence, the law and the weight of the evidence. Finally, defendant asserted two claims based on Pa. R. Crim. P. 1100.

We have reviewed all the points that have been briefed and argued by the defendant. While many of the points presented have arguable merit, we have determined that none, except for the speedy trial issue, would impair the verdicts rendered. Accordingly, at this time and herein, we will address only the speedy trial issue.

This case has a rather bizzare procedural history. Defendant Stumpo was a Philadelphia Police Officer when the events which led to his prosecution occurred. While on duty in the early morning hours of January 1, 1978, the defendant entered the lounge of the Sheraton Airport Inn and began a series of confrontations with civilians which led to the issuance of a criminal complaint against him on May 24, 1978. Under Rule 1100(a)(2), the trial would have to begin by November 20, 1978. After a series of continuances, the case was assigned to Judge GUARINO in September of 1978 and trial set to commence on November 6, 1978. In the interim, on or about October 6, 1978, Judge GUARINO was assigned the trial of Officer Robert Murphy, a Philadelphia policeman charged with various crimes involving official misconduct. The Murphy trial began October 12, 1978, and Judge GUARINO declared a mistrial on October 27, on the grounds of prosecutorial misconduct. On November 2, 1978, the District Attorney filed a motion to disqualify Judge GUARINO from presiding over the Stumpo trial on grounds of alleged bias in cases of police officers charged with official misconduct; the allegation was based exclusively on statements and rulings made in the Murphy trial.

On November 6, 1978, rather than commence the Stumpo trial, the Court heard the motion for recusal. Since the Commonwealth required that the notes of testimony from the Murphy trial be included as part of its petition, the Court reserved ruling on the motion until the notes were transcribed.

On November 14, 1978, six days before the expiration of the time limit of Rule 1100, the District Attorney filed a petition to extend based on the pendency of the Motion to Recuse the Trial Judge. On November 20, 1978, Judge MARUTANI heard the petition and over objection of the defendant extended the time for the commencement of trial in the Stumpo case to ninety (90) days beyond the decision on the Recusal Motion. The notes of testimony in the Murphy trial, consisting of over two thousand two hundred (2200) pages, were filed on January 18, 1979. Judge GUARINO's opinion dismissing the recusal motion was filed on March 29, 1979. 2 Phila. 202 (1979). In accordance with Judge MARUTANI's extension order, the run date was calculated to be June 27, 1979. Thereafter, while preserving his accrued claim against the extension order, defendant waived the rule to October 31, 1979. The trial began on October 15, 1979, resulting in a conviction on three counts on November 15, 1979.

Defendant's argument that he was denied a prompt trial is twofold: first, that the Commonwealth did not exercise due diligence in filing the dilatory motion to recuse the trial judge based solely on the trial judge's rulings in another case; and second, that the order extending the time for trial was improvidently made and contrary to law.

Before undertaking to resolve the two issues raised, it is appropriate to keep in mind that Pa. R. Crim. P. 1100 is a mandatory rule of procedure designed to protect a defendant's fundamental constitutional right to a speedy trial. Commonwealth v. Johnson, 487 Pa. 197, 202, 409 A.2d 308, 310 (1979). Thus, in any face-off upon a request to extend the time limitation, the Commonwealth has the burden of establishing first, that despite due diligence on its part, the defendant cannot be brought to trial within the prescribed mandate of the rule, Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979), Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), Commonwealth v. Grady, Pa.Super , 421 A.2d 715 (1980), Commonwealth v. Schmoyer, Pa.Super , 421 A.2d 786 (1980); and second, that the date to be set for trial is for the earliest date consistent with the Court's business, Commonwealth v. Freeman, Pa.Super , 421 A.2d 814, 817 (1980).

When ruling on the evidence presented on the petition to extend, the hearing judge must weigh the evidence and tailor his findings to the exact requirements of the rule. [1] Our appellate courts have consistently stressed the requirement that the hearing judge make an on the record specific finding, and give reasons for his ruling. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Crowley, Pa.Super , 421 A.2d 1129 (1980); Commonwealth v. Frank, 263 Pa.Super 452, 398 A.2d 663, 676 (1979). This is to insure that the Court's decision will be subject to meaningful review in any subsequent appeal by providing an adequate record of the considerations which entered into the Court's decision and its ultimate rationale. Commonwealth v. Tome, 248 Pa.Super 242, 375 A.2d 78 (1977). This was made crystal clear by the Supreme Court in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345, 1349-50 (1976), where the Court stated:

Henceforth, the trial court may grant an extension under Rule 1100(c) 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. (Emphasis added.)

While this Court does not doubt that reasonable judicial delay might justify the granting of an extension, Commonwealth v. Mayfield, supra, Commonwealth v. Shelton, supra, Commonwealth v. Stretton, 469 Pa. 8, 364 A.2d 694 (1976), it is noted that Judge MARUTANI failed to make any specific record findings consistent with Mayfield. Rather, the entry in the Quarter Sessions file for the November 20, 1978 hearing is merely an order granting the extension and ordering that the trial begin within ninety (90) days of Judge GUARINO's ruling on the motion to disqualify. Judge MARUTANI has left to this Court en Banc to glean his reasons for so ruling from the lengthy transcript of the hearing. There is no official finding on this record that defendant could not be brought to trial on or before the original run date despite due diligence on the part of the Commonwealth; that in filing its dilatory motion for recusal of the trial judge, based on the trial judge's rulings in another case, the Commonwealth exercised the...

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