Appeal from Judgment of Sentence of the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Division, at Criminal Action Nos. 295, 268 and 461 of 1975. No. 544 and 545 April Term, 1976.
R. W. Ziegler, Jr., Pittsburgh, with him Richard S. Ombres, Pittsburgh, for appellants.
Conrad B. Capuzzi, District Attorney, Uniontown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.
[ 247 Pa. Super. Page 247]
The instant appeal raises two important questions: (1) whether the lower court erred in granting the Commonwealth's
[ 247 Pa. Super. Page 248]
petition to extend the period in which to try appellants; see Rule 1100(c), Pa.R.Crim.P., 19 P.S. Appendix; and (2) whether the court erred in denying appellants' motion for a change of venue.*fn1
In 1975, the Fayette County district attorney submitted to the grand jury over 300 charges of burglary, robbery, arson and conspiracy, involving eleven defendants, several of whom had been members of the Connellsville Police Department when the crimes were committed. The appellants are two of the eleven people arrested at that time. Their trial on charges arising out of an October 22, 1973 burglary of the Connellsville Sons of Italy Hall commenced on December 8, 1975. On December 17, a jury returned a verdict of guilty on charges of burglary and conspiracy. The lower court thereafter denied appellants' post-trial motions and sentenced appellants to concurrent five to ten year terms of imprisonment and to make restitution. This appeal followed.
The facts relating to appellants' Rule 1100 claim are as follows: On April 29, 1975, the prosecutor filed a complaint
[ 247 Pa. Super. Page 249]
charging appellant Dominic Mancuso with burglary. On May 14, an additional complaint was filed in which he was charged with conspiracy to commit burglary. This complaint named appellant Joseph Mancuso as one of Dominic Mancuso's co-conspirators; the complaint against appellant Joseph Mancuso was not filed until June 26, 1975. These complaints were not filed in time for consideration by the April Grand Jury. The next grand jury did not convene until August, at which time the appellants were indicted as charged in the complaints. The Commonwealth had until October 26, 1975, 180 days from the date of the complaint, to bring appellant Dominic Mancuso to trial on the original charge, unless the period was extended under Rule 1100(c) or (d), Rule 1100(a)(2).*fn2 The one-hundred and eightieth day from the complaint against Joseph Mancuso was December 23.
On August 19, all of those accused in the "Connellsville Police cases" filed an application for a change of venue. See Rule 313, Pa.R.Crim.P. That motion was denied after a hearing was held on August 29. All of the cases were scheduled for trial during the September Term which consisted of the weeks beginning on September 2, September 8, September 29, and October 6, 1975. Prior to commencement of the term, appellants petitioned for a one week continuance. On September 8, the court granted the prosecutor a
[ 247 Pa. Super. Page 250]
one week continuance for all of the Connellsville Police cases when the prosecutor learned that the Commonwealth's lead witness, Marvin Wedge, was in the hospital. During the final two weeks of the September Term, the first of the cases was brought to trial. That case, known as the "Foodland" case, did not involve the appellants; however, appellants' attorney represented one of the defendants on trial in that case.
At some point prior to the expiration of the 180 day period, it became apparent to the prosecutor that his office and the courts would not be able to try the remaining Connellsville Police cases within that period. Therefore, on October 14, prior to the end of the period, the prosecutor petitioned the court for an extension pursuant to Rule 1100(c). On October 27, the lower court conducted a hearing on the petition, but did not grant the petition until November 25, when the court granted an extension until the December Term, the next available trial date.*fn3 On October 28, appellants' counsel withdrew from the case. On November 21, present counsel entered his appearance and, prior to trial, filed a new motion for a change of venue.*fn4 On
[ 247 Pa. Super. Page 251]
December 1, counsel requested additional time to prepare that motion. The court held a hearing on December 5, and denied the motion. Trial commenced on December 8.
Appellants contend that the lower court erred in granting the Commonwealth's petition to extend. In their brief, filed before our 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), appellants argue that the lower court erred in granting the extension because the Commonwealth's request was premised on court backlog. See Commonwealth v. Mayfield, 239 Pa. Super. 279, 362 A.2d 994 (1976); Commonwealth v. Shelton, 239 Pa. Super. 195, 361 A.2d 873 (1976). Subsequently, appellants filed a supplementary brief in which they discussed the impact of the Supreme Court's ...