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filed: July 17, 1981.



Nino V. Tinari, Philadelphia, for appellants.

Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ. Cercone, President Judge, files a dissenting opinion.

Author: Montgomery

[ 289 Pa. Super. Page 48]

On June 2, 1977, a written complaint was filed against the appellants in this case. Appellant, Willie Blankenship, was charged with Possession of Drugs with Intent to Deliver, two counts of Delivery of Drugs, and Criminal Conspiracy. Appellant, Norma Jean Suggs, was charged with two counts

[ 289 Pa. Super. Page 49]

    of Delivery of Drugs and Criminal Conspiracy. After a consolidated trial by jury on January 16-18, 1978, appellants were found guilty of the above offenses. Norma Jean Suggs was sentenced to concurrent terms of one and onehalf (1 1/2) to three (3) years imprisonment on each count, and Blankenship was ordered to undergo imprisonment for not less than six (6) nor more than twelve (12) years and was fined $100,000. Timely post-trial motions were filed, argued, and denied. Appellants thereafter perfected this appeal.

Appellants raise six separate issues on appeal seeking the reversal of judgments of sentence and dismissal of the charges, or in the alternatives, a new trial. A close review of appellant's contentions has convinced us that they are without merit. Accordingly, we affirm.

The first issue presented for our consideration concerns an alleged violation of Pa.R.Crim.P. 1100. This rule directs that all cases in which a written complaint is filed against a defendant after June 30, 1974, are to be tried within 180 days from the date on which the complaint is filed. Pa.R.Crim.P. 1100(a)(2). Appellants advance the argument that they were not brought to trial within the mandatory period and that the two extensions of time granted to the Commonwealth to do so were improper. The two extensions were allegedly improper in two respects, namely, the Commonwealth failed to demonstrate due diligence in pursuing a timely trial and, secondly, the record was deficient in establishing the causes of the delays. In order to properly analyze these arguments, the pertinent procedural history must be delineated.

As stated above, the complaint was filed on June 2, 1977*fn1 and the preliminary hearing was held on July 12, 1977. Appellants were arraigned on September 12, 1977 and the case was listed for the October Term, 1977, of the Criminal Division of York County Court of Common Pleas. The court failed to reach this case in that term, thereby necessitating a

[ 289 Pa. Super. Page 50]

    rescheduling of the trial for November 28, 1977. The appellants were not brought to trial on the rescheduled date. Therefore, on November 29, 1977, the Commonwealth filed an Application for Extension of Time in which to try the appellants. On December 16, 1977, the Honorable Joseph E. Erb granted the Commonwealth's petition and ordered the case to be tried on or before December 23, 1977. Again, the case was not reached, and again the Commonwealth, through its Application for Extension of Time, sought another permissive delay. The Honorable Albert G. Blakey granted this petition on January 10, 1978 and ordered that appellants be tried on January 16-18, 1978, and adjudged guilty on all counts.

The standard which must be met for a petition to be granted is enunciated in Pa.R.Crim.P. 1100(c), which provides:

"At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial . . . Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth . . ." (emphasis added)

Appellant initially contends that the Commonwealth did not employ due diligence in scheduling the preliminary hearing on July 12, 1977, forty days after the complaint was filed. A preliminary hearing was originally scheduled for June 15, 1977, however, the District Justice was on vacation for two weeks, thereby causing a backlog of cases. We do not find this period to be evidence of lack of diligence on the part of the Commonwealth.

The complaint was received by the Clerk of Courts of York County on July 19, 1977. The information was subsequently filed prior to August 29, 1977. Appellants were arraigned on September 12, 1977, with the case being listed for trial on October 18, 1977. An examination of the steps taken by the district attorney's office indicates to us that they were employing due diligence, with the longest period

[ 289 Pa. Super. Page 51]

    between action on the case being forty-eight (48) days. The case upon which appellants rely, Commonwealth v. Martin, 246 Pa. Super. 407, 371 A.2d 903 (1977), is inapposite. Therein, the Commonwealth did nothing to bring the defendant to trial until almost four months after the complaint was filed. Such was not the case herein. The Commonwealth utilized due diligence with respect to the appellants' charges, and the case progressed in an orderly and timely fashion.

Appellants additionally argue that the Commonwealth did not employ due diligence in relying upon judicial delay as a basis for its extensions of time in which to try appellants.

The Supreme Court addressed the issue of timely applications by the prosecution to extend the prescribed time for trial on the sole ground that the court cannot provide trial pursuant to the mandates of Rule 1100 in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). While recognizing that the spirit and intent of Rule 1100 was to reduce the backlog of criminal cases and provide an objective standard for the achievement of a speedy trial, for a defendant, the Supreme Court acknowledged that often circumstances within the judicial administration would arise making the trial of a defendant within the prescribed period an impossibility. See Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). In such instances,

". . . The policies which prompted the adoption of Rule 1100 would not be served by disallowing a reasonable, limited extension . . ." Commonwealth v. Mayfield, supra, 469 Pa. at 220, 364 A.2d at 1348.

The Mayfield court enumerated the requirements to be met in order for an application for extension of time to be properly granted:

"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

[ 289 Pa. Super. Page 52]

    delay and the reasons why the delay cannot be avoided." Id., 469 Pa. at 222, 364 A.2d at 1349-1350.

Appellants assert that the Commonwealth met neither of the above requirements outlined by the Mayfield court. We disagree.

The case was originally scheduled for the October, 1977 term of criminal court, well within the mandated time of trial. The Honorable Robert I. Shadle was assigned to hear this case, however, during the two-week-long term, he was unable to try the appellants due to other criminal matters. The appellants' trial was therefore postponed until the November 1977 term, which encompassed only one week. The 180-day period expired in the middle of the week, thereby necessitating that the Commonwealth filed a petition for an extension. In the petition, the Commonwealth averred that appellants' counsel was himself occupied with another trial for three of the five days of the term. Combined with defense counsel's unavailability and the crowded court schedule, the Commonwealth was unfortunately unsuccessful in commencing trial in the November term. After a hearing before Judge Erb, the Commonwealth received an extension to try the appellants by December 23, 1977.

Reviewing the record and the reasons advanced by the prosecution, we find that the Commonwealth proceeded with due diligence in its efforts to commence trial. See Commonwealth v. Wilson, 258 Pa. Super. 231, 392 A.2d 769 (1978). (Therein, Judge Cercone stated that "The petition for an extension was sufficient on its face in stating that, despite its due diligence, the Commonwealth was unable to bring appellant to trial within 180 days because of the unavailability of a sufficient number of judges to try the criminal cases then pending in Delaware County.") Commonwealth v. Cimaszewski, 261 Pa. Super. 39, 395 A.2d 931 (1978).

The case at bar was reassigned for trial in the December 1977 term to Judge Blakey. This term consisted of four days, and, again, the defense counsel was occupied for two of those four days. Judge Blakey was unable to accommodate appellants' trial in his schedule, consequently, the Commonwealth

[ 289 Pa. Super. Page 53]

    sought another delay. Judge Blakey presided at the Rule 1100 hearing on January 10, 1978, and based upon defense counsel's unavailability and his own backlogged schedule, granted the Commonwealth's request upon the condition that appellants be tried in the January, 1978 term. Appellants were finally tried in this term and, as stated previously, convicted on all counts.

Although repetitious requests for extensions of time by the Commonwealth are to be discouraged, that fact alone cannot preclude findings of due diligence. Commonwealth v. Royer, 256 Pa. Super. 361, 389 A.2d 1165 (1978). Each petition must be individually reviewed to determine its merits. We are satisfied that in both instances, the Commonwealth moved with due diligence. Both petitions were timely filed. The Commonwealth was handicapped by very short criminal trial terms, and the contributions to the delay by the unavailability of defense counsel cannot be ignored. ...

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