Appeal from the Judgment of Sentence by the Court of Common Pleas of Cumberland County, Criminal Division at 673, 1975. No. 1458 October Term, 1976.
Arthur K. Dils, Harrisburg, for appellant.
Edgar B. Bayley, Camp Hill, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion, in which Cercone, J., joins. Spaeth, J., files a dissenting opinion.
[ 247 Pa. Super. Page 49]
The only issue raised on appeal is whether appellant's trial was held in violation of Pa.R.Crim.P. 1100 which requires that a person charged with a crime be brought to trial within 180 days of the filing of a criminal complaint. The complaint charging the appellant with burglary was filed on March 10, 1975.*fn1 A preliminary hearing was scheduled for March 19, 1975, but because a lie detector test was requested by appellant, the preliminary hearing was postponed indefinitely and not held until June 18, 1975. The lie detector test was administered on April 15, 1975, and the results were available April 23, 1975. Trial commenced on September 29, 1975, approximately 203 days after the filing of the complaint. Prior thereto on August 1, 1975, or 37 days before the 180 day period was to expire on September 6, 1975, the
[ 247 Pa. Super. Page 50]
Commonwealth filed an application to extend the time for commencement of trial pursuant to Pa.R.Crim.P. 1100(c). This petition averred that the Commonwealth was unable to proceed to trial within the 180 day period despite its due diligence because of the delay resulting from appellant Lewis' request for a polygraph examination. The appellant disputed the facts in the Commonwealth's petition and argued that the delay caused by the administration of the polygraph test was attributable to the Commonwealth in that the lie detector test was primarily prompted by a Commonwealth request. A hearing was held on this matter before the Honorable Dale F. SHUGHART, President Judge, and by order of court dated September 29, 1975, the court below accepted as true the Commonwealth's explanation for the delay and granted the petition for an extension. The appellant was thereafter convicted and sentenced to a term of 10 to 23 months. This appeal followed.
As noted above, the complaint charging the appellant with burglary was filed on March 10, 1975 and the appellant was not brought to trial until September 29, 1975, or 203 days later. Consequently, in order that a violation of Rule 1100 be avoided it is necessary that 23 days of delay either be excluded or remedied by a timely application for an extension. Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976). Our review of the record supports the lower court's conclusion that the preliminary hearing was postponed indefinitely on motion of defense counsel to allow the appellant an opportunity to submit to a polygraph examination in hopes that results favorable to the appellant would persuade the prosecuting police officer to drop the charges. This effectively waived the 10 day rule of Pa.R.Crim.P. 140 which requires that a preliminary hearing be held within 10 days after the preliminary arraignment. Appellant admits that his trial counsel testified that the polygraph idea probably was initiated by him and appellant further admits that his trial counsel testified that he did inform the appellant of the operation of the 180 day rule.
[ 247 Pa. Super. Page 51]
Appellant's Brief at 4.*fn2 The lower court believed trial counsel's explanation for the delay and we can find no abuse of discretion.*fn3 The delay from March 19, 1975, when counsel for appellant moved for a continuance until the test results were available on April 23, 1975, precluded the possibility of submitting the case to the grand jury for the May Term which concluded its work on April 24th and necessitated a delay to the next term of court.
The issue thus becomes whether the Commonwealth in agreeing to the request of the appellant for the administration of the polygraph test and failing to bring the appellant to trial prior to the next Cumberland County trial term, exercised due diligence entitling it to the extension. The prosecuting authorities made every possible effort to accommodate appellant's strategy of attempting to obtain a dismissal of the charges if the polygraph test results were favorable. Such a course of conduct can only be characterized as a fair and just approach to the administration of criminal justice in our Commonwealth. We refuse to hold that, under the facts of this case, the prosecuting authorities should have resisted the appellant's request for the test or should have pushed appellant's case through a preliminary hearing on April 23, 1975, or April 24, 1975, in order to meet the deadline of the then sitting grand jury. Due diligence does not require the Commonwealth to resist a reasonable request for delay or to force a defendant to go to a hearing on one day's notice. In fact such action would violate the district attorney's obligation "to seek justice, not merely to
[ 247 Pa. Super. Page 52]
convict." See ABA Code of Professional Responsibility EC7-13.
Nor does the delay occasioned by the fact that the next grand jury did not meet until August, 1975, preclude a finding of due diligence on the part of the prosecutorial officers. The district attorney could not have required that intervening court sessions be held in order to accommodate the appellant's case. He did all that he could do when he petitioned for an extension of the Rule 1100 period 37 days before it was to expire. We are thus faced with a situation where despite due diligence by the district attorney trial could not have been held within the statutory period because of judicial delay in the trial scheduling in Cumberland County. The dissents, citing Commonwealth v. Coleman, 241 Pa. Super. 450, 361 A.2d 870 (1976), would have us rule that the appellant's Rule 1100 rights were violated because the lower court did not hold extra or continuous court sessions. Their reliance on Coleman is unjustified for several reasons.
Initially, we note that Coleman is factually distinguishable from the case at bar in that at no time in that case was a timely petition for an extension of time presented to the lower court. The lower court in Coleman simply granted a continuance for an indefinite period of time on motion of defense counsel thereby allowing the Rule 1100 period to expire by the second session of court. In the present case, however, a petition for an extension of ...