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COMMONWEALTH PENNSYLVANIA v. RUSSELL M. METZGER (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
RUSSELL M. METZGER, APPELLANT



Appeal from Sentence of July 1, 1976 of the Court of Common Pleas, Criminal Division, Lancaster County, No. 1878 of 1975.

COUNSEL

James F. Heinly, Lancaster, with him Morgan, Hallgren & Heinly, Lancaster, for appellant.

D. Richard Eckman, District Attorney, Lancaster, with him Henry S. Kenderdine, Jr., Assistant District Attorney, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., files a concurring opinion.

Author: Hoffman

[ 249 Pa. Super. Page 109]

The instant appeal presents only one issue: whether the lower court erred when it extended the period in which the Commonwealth was required to try the appellant. See Rule

[ 249 Pa. Super. Page 1101100]

(c), Pa.R.Crim.P., 19 P.S. Appendix. We believe that the Commonwealth exercised due diligence and, therefore, we affirm the judgment of sentence.

On July 10, 1975, the Lancaster County District Attorney filed a complaint charging appellant with delivery of a controlled substance.*fn1 Therefore, it had to try appellant no later than January 6, 1976. See Rule 1100(a)(2). On December 17, 1975, one hundred and sixty days after the complaint was issued, the Commonwealth filed a petition requesting an extension of time in which to try appellant. See Rule 1100(c). The court held a hearing on the Commonwealth's petition on January 22, 1976,*fn2 and, after the Commonwealth presented extensive testimony, it granted an extension for sixty days. At that point, appellant made an oral motion to dismiss the charges. Rule 1100(f). The court denied that motion. Trial commenced immediately after the hearing. On the following day, a jury found appellant guilty of delivery of a controlled substance. After the denial of post-verdict motions, the lower court sentenced appellant to a term of imprisonment of 6 to 12 months. This appeal followed.

The facts relating to appellant's Rule 1100 claim were developed at the January 22, 1976 hearing. After the complaint was filed, there were only two criminal terms of court

[ 249 Pa. Super. Page 111]

    in which appellant could have been tried within the 180 day period -- the September and November, 1975 sessions. Each term lasted for two weeks. During the September term, appellant's brother was tried on a separate charge. At that trial, the Commonwealth presented considerable testimony which implicated appellant in various drug deals. The Commonwealth, therefore, chose not to bring him to trial in September because the county had only one jury pool, members of which had already heard testimony against him at his brothers trial. During the November trial term, the Commonwealth tried appellant on a charge of conspiracy, arising out of one investigation, but based on a different criminal episode from the offense involved herein.*fn3 Thus, the Commonwealth faced the same problem as it did during the September term. In its opinion, the court explained that had the cases against appellant been consolidated, it would have severed the charges on a motion by appellant or by appellant's co-conspirator in the case tried in November. The court concluded that the foregoing amounted to due diligence by the Commonwealth.

The delay in the instant case was caused in part by Lancaster County's insufficient allocation of resources to the administration of its criminal docket. Had the county provided additional criminal trial terms between July and January or had the county empaneled more than one jury pool, there would have been no need to defer appellant's trial until January, 1976. Allocations of inadequate resources, however, does not necessarily lead to discharge under Rule 1100(f). That view, once held by a majority of this Court, was rejected by the Supreme Court in Commonwealth v. Mayfield, 469 Pa. 214, 220, 364 A.2d 1345, 1348 (1976): "The Superior Court, concluding that rule 1100 was intended to promote prompt action by the courts as ...


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