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COMMONWEALTH PENNSYLVANIA v. JOHN GIBSON (06/29/77)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN GIBSON, APPELLANT

Appeal from the Judgment of Sentence imposed September 4, 1975, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 799, 805 of February Term, 1975.

COUNSEL

Patrick J. Mandracchia, Assistant Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Cercone, J., joins.

Author: Price

[ 248 Pa. Super. Page 350]

The appellant contends that his right to a speedy trial under Pa.R.Crim.P. 1100 has been violated. We disagree and affirm the judgment of sentence.

On December 16, 1974, a criminal complaint was filed against the appellant charging him with burglary, robbery, and other related offenses. On May 15, 1975, the Commonwealth applied for an extension of time for trial alleging that it would be unable, despite its due diligence, to bring the appellant to trial within 180 days from the filing of the criminal complaint against him as required by Pa.R.Crim.P. 1100(a)(2).*fn1 On June 20, 1975, after a hearing,*fn2 the lower court granted the Commonwealth an additional period of sixty-eight days within which to commence trial. Trial eventually commenced on August 19, 1975, sixty-four days after June 16, 1975, the 180th day.

The appellant does not contest that the Commonwealth was entitled to additional time for trial, conceding that he was responsible for twenty-two days of delay. Instead, the appellant maintains solely that the remaining forty-six days should not have been included in the sixty-eight day extension because they represent a period when no courtrooms were available for trial. In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), and Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Pennsylvania Supreme Court recently refuted this contention, ruling that an extension of time may properly be predicated upon

[ 248 Pa. Super. Page 351]

    judicial delay. Unfortunately, however, our determination of the merits of this appeal is not finished. In Mayfield, the Supreme Court further explained that:

"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." Commonwealth v. Mayfield, supra, 469 Pa. at 222, 364 A.2d at 1349-50.

The dissent, citing this portion of the Mayfield*fn3 decision, see Commonwealth v. Lewis, 247 Pa. Super. 46, 371 A.2d 1318 (1976) (dissenting opinion by Spaeth, J.), would have us remand this case to the lower court to establish a more complete record. Although more will certainly be demanded in cases arising after Mayfield, Commonwealth v. Lewis, supra, we find the present record sufficient to enable us to conclude that the lower court properly granted the prosecution an extension of time. Further hearings in the court below would engender only unnecessary expense and delay.

In its petition to extend, the Commonwealth avers that trial was scheduled to commence on May 15, 1975, but was continued until June 9, 1975, because no courtrooms were available. For this same reason, the case was continued again from June 9, 1975, until July 7, 1975.*fn4 Of this period of time, only the continuance from June 9, 1975, until July 7, 1975, is shown on the record*fn5 to have been caused by delay

[ 248 Pa. Super. Page 352]

    attributable to the judiciary. The record is inconclusive as to whether the other periods of delay were caused by a lack of courtroom space.*fn6 The Commonwealth's petition to extend, however, was not predicated solely upon periods of judicial delay, but also upon periods of delay attributable to the appellant. The appellant concedes in his brief before this court that he was responsible for twenty-two days of delay. Since the appellant admits that he delayed the proceedings, the Commonwealth was clearly entitled to receive additional time for trial. The sole question before us therefore is whether the extension of time prescribed by the court below was so excessive as to violate the appellant's rights under Rule 1100. The appellant believes that the lower court could not properly grant an extension of time in excess of twenty-two days. We disagree with appellant's assertion.

Even if we were to assume, arguendo, that no delay other than that caused by the appellant was present in this case, the length of an extension is not determined solely by the length of delay shown to be beyond the control of the Commonwealth. The length of an extension is restricted only by the requirement that the extension be "reasonable, limited . . . specifying the date or period within which trial shall be commenced." Commonwealth v. Mayfield, supra, 469 Pa. at 220, 364 A.2d at 1348. We find that the sixty-eight day extension granted by the lower court was reasonable. The extension order specified the period within which trial was to begin. Moreover, although trial began on August 19, 1975, four days prior to the expiration of the sixty-eight day period, the record demonstrates that the lower court scheduled the case for trial on July 1, 1975, and on July 30, 1975,

[ 248 Pa. Super. Page 353]

    but was unable to hear the case on either date because no courtrooms were available.

Judgment of sentence affirmed.

SPAETH, Judge, dissenting:

For the reasons stated in my dissenting opinion in Commonwealth v. Lewis, 247 Pa. Super. 46, 371 A.2d 1318 (J. 1159/76 1976), I believe this case should be remanded for consideration in light of the standards set out in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976).


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