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April 3, 1981


No. 1 March Term, 1979, Appeal from the Order and Sentence of the Court of Common Pleas of York County, Pennsylvania, Criminal Action, at No. 772 CA 1977.

Before Cercone, P.j., Watkins, J. and Montgomery, J. Cercone, P.j., Files a Memorandum Dissenting Opinion.

Per Curiam:

Affirmed on the lower court opinion of Honorable Albert G. Blakey, III.

CERCONE, P.J., Files a Memorandum Dissenting Opinion.


I dissent. In my view appellant's right to a speedy trial, as that right is defined by Rule 1100 of the Rules of Criminal Procedure and our case law, was violated here, and appellant ought to be discharged.

Rule 1100(c) provides that applications by the Commonwealth to extend the time for trial may be granted "only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth." Since Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), Rule 1100(c) has been interpreted to require a record showing of due diligence.

The Supreme Court stated there:

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. Id., at 222, 364 A.2d at 1349-1350.

Cf. Commonwealth v. Mines, Pa. Super. , 422 A.2d 876 (1980), Commonwealth v. Berry, Pa. Super. , 414 A.2d 130 (1979); Commonwealth v. Warman, 260 Pa. Super. 143, 393 A.2d 1046 (1978). Mere assertions of due diligence and allegations of fact do not establish cause for an extension of time under Rule 1100(c). See Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Antonuccio, 257 Pa. Super. 535, 390 A.2d 1366 (1978); Commonwealth v. Ray, 240 Pa. Super. 33, 360 A.2d 925 (1976). Of course, the Commonwealth may obtain the extension it seeks if it presents sufficient evidence at the hearing on the Rule 1100 application. Commonwealth v. Mines, supra ; Commonwealth v. Cimaszewski, 261 Pa. Super. 39, 395 A.2d 931 (1978). In our review of the hearing court's ruling we may consider the evidence presented by the Commonwealth and only so much of the defense evidence which goes uncontradicted. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Mines, supra.

Appellant argues, and I believe rightly so, that the Commonwealth has not met the requirement of a record showing of its diligence. A reading of the hearing transcript clearly indicates this to be true. Furthermore, in its order of December 15, 1977 extending the time for trial, the hearing court specifically acknowledged this failure on the Commonwealth's part:

"The Commonwealth contends that [the case] was not tried because all courts available for trial in criminal cases were fully occupied. They have not established this of record...."

The most that can be said is that the Commonwealth succeeded in showing that the judge to whom the case had been assigned for trial had a full calendar and then only by stipulation of defense counsel. There was no showing that the cases on that judge's calendar had priority over the instant case.

Of greater consequence, however, than the Commonwealth's failure to adduce sufficient evidence at the Rule 1100 hearing is the lower court's reasoning in granting the extension. The December 15, 1977 order reads further:

"The District Attorney in this County lists all cases for a given criminal term on what is called a trial list making an assignment of these cases to the courtrooms that are available indicating thereby the judge that will be handling the case and the Assistant District Attorneys that will be prosecuting the same. We construe this list as a good administrative device which indicates to all concerned the Court in which the case is most likely going to trial and who is most likely going to handle it. It is not followed as an absolute and cases are moved from time to time from one courtroom to another. However, despite this occasional shuffling of cases consistent with positions stated in other Rule 1100 proceedings we are not going to require the Commonwealth to prove that every other judge was fully occupied. The Court to which the case was assigned couldn't hear it, and we think that is sufficient justification for extension to the very next term which is what the Commonwealth seeks.*fn1

Such reasoning flies directly in the face of Rule 1100. Furthermore judicially conceived justifications for granting applications for extension of the time for trial has been disapproved by our case law. See Commonwealth v. Ehredt, supra ; Commonwealth v. Berry, supra ; Commonwealth v. Miller, Pa. Super. , 411 A.2d 238 (1979).

*fn1 I do not comment at this time on the wisdom of assigning cases on the trial list to particular judges. It is sufficient to say now we can envision certain inadequacies and dangers in this practice.

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