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COMMONWEALTH PENNSYLVANIA v. FRANK DELPIANO (09/04/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 4, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
FRANK DELPIANO, APPELLANT

No. 110 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, First Judicial District of Pennsylvania, Criminal Trial Division, No. 124 February Term, 1979. (Philadelphia County)

COUNSEL

John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Johnson and Popovich, JJ. Brosky, J., files a concurring opinion.

Author: Johnson

[ 290 Pa. Super. Page 511]

After a non-jury trial, Appellant was found guilty of Receiving Stolen Property.*fn1 Appellant's post-verdict motions were denied, and Appellant was sentenced to three

[ 290 Pa. Super. Page 512]

    years probation. This is an appeal from the judgment of sentence. For the following reasons, we reverse and discharge Appellant.

The complaint was filed against Appellant on December 12, 1978; and the run date was June 11, 1979. On May 10, 1979, Appellant filed a motion to suppress; and the court continued the case until June 21, 1979. On June 6, 1979, the Commonwealth filed the first petition for an extension under Rule 1100(c).*fn2 The petition was granted on June 7, 1979; and the trial was scheduled for June 25, 1979. On June 21, 1979, the Commonwealth filed a second Rule 1100(c) petition, alleging, "Detective ill." The judge was also ill on June 21. On July 19, 1979, the court granted the Commonwealth's second petition and extended the trial date to August 17, 1979.

The Commonwealth filed a third Rule 1100(c) petition on August 17, 1979. This petition averred, "Aug. 15, 1979 -- arresting officer on vacation." The court granted the aforesaid petition on September 26, 1979, and extended the trial date to October 3, 1979. On this date, the Commonwealth filed a fourth petition for extension under Rule 1100(c). This petition averred, "Court closed due to Papal Visit." The judge granted this petition on October 19, 1979, and extended the trial date to October 23, 1979. On this date, Appellant's trial was finally commenced; and Appellant was found guilty of Receiving Stolen Property. The property consisted of three rifles. On January 7, 1980, the Court denied Appellant's post-trial motions and sentenced Appellant to three years probation.

[ 290 Pa. Super. Page 513]

Appellant contends that the Court erred in granting the Commonwealth's second, third, and fourth petitions for an extension under Rule 1100(c). Appellant does not contest the first extension since the Court had Appellant's motion to suppress under advisement at the expiration of the original run date.

The Commonwealth's second Petition for Extension under Rule 1100(c) is a one-page form petition with boilerplate which avers that, despite the Commonwealth's exercise of due diligence, the case could not be tried before the run date. The only exercise of due diligence listed by the Commonwealth was: "June 21, 1979 -- Detective ill." The hearing on this petition was held on July 19, 1979. Despite a request by defense counsel that the Commonwealth present testimony concerning whether or not the case could have been listed for trial before the run date, the judge granted the petition without any testimony from the Commonwealth.*fn3

[ 290 Pa. Super. Page 514]

    instant case. In Ehredt, the district attorney argued that "good cause" existed for an extension because several Commonwealth witnesses would not be available. The Ehredt Court held that "a bare statement by the Commonwealth's attorney that several witnesses are 'unavailable' without more, does not establish 'due diligence' within that standard" (i. e. proof of due diligence by a preponderance of the evidence). Id., 485 Pa. at 195, 401 A.2d at 361. The Supreme Court proceeded to quote Commonwealth v. Antonuccio, 257 Pa. Super. 535, 537, 390 A.2d 1366, 1367 (1978), for the principle that "'[m]ere assertions of due diligence and unproven facts, do not establish cause for an extension under Rule 1100(c).'" 485 Pa. at 195-196, 401 A.2d at 361.

In the instant case, the Commonwealth's petition merely asserts that it exercised due diligence and that the arresting officer was on vacation. Under Ehredt and Antonuccio, such assertions and unproven facts do not establish cause for a Rule 1100(c) extension.

Under Mayfield, the Commonwealth was required to present evidence on the record to establish both the exercise of due diligence and that the delay could not have been avoided. The Commonwealth failed to provide any testimony at the hearing on September 26, 1979.

At this hearing, counsel for Appellant expressed his belief that the Commonwealth, at the beginning of the summer, had a list of the police officers' vacation schedules.*fn4 Accordingly, Appellant's counsel requested evidence from the Commonwealth concerning why the Appellant's trial had been listed for a date when the arresting officer was on vacation.

[ 290 Pa. Super. Page 516]

The aforesaid request for the Commonwealth to produce evidence was ignored by both the Commonwealth and the trial judge. Under Mayfield, Antonuccio, and Ehredt, the Commonwealth in the instant case has failed to meet the burden of proving either its exercise of due diligence or that the case could not have been scheduled for an earlier date. Because the Commonwealth failed to meet its burden of proof, the trial court erred in granting the Rule 1100(c) extension. Commonwealth v. Levitt, 287 Pa. Super. 115, 429 A.2d 1126 (1981); Commonwealth v. Thompson, 285 Pa. Super. 155, 426 A.2d 1188 (1981); Commonwealth v. McNeill, 274 Pa. Super. 257, 418 A.2d 394 (1980).

For the foregoing reasons, the judgment of sentence is reversed, and Appellant is ordered discharged.

[ 290 Pa. Super. Page 517]

BROSKY, Judge, concurring:

I agree with the majority and concur in the result reached by the majority, but believe that we should respond to the Commonwealth's contention that the record amply supports the Rule 1100 motions court judge's decision to grant the Commonwealth's June 21, 1979 petition for an extension. Rule 1100(c).

In Commonwealth v. Postell, 280 Pa. Super. 550, 552, 421 A.2d 1069, 1070 (1980), we said:

Contrary to appellant's contention that the lower court erred in relying upon such court records, this court has impliedly permitted such use. Commonwealth v. Gibson, 248 Pa. Super. 348, 375 A.2d 132 (1977); Commonwealth v. Kollock, 246 Pa. Super. 16, 369 A.2d 787 (1977).

In the instant case, the Rule 1100 motions court judge decided that due diligence had been undertaken by the Commonwealth when he noted that the record indicated that both the trial judge and the detective were ill. The Commonwealth's second extension petition contended only that an extension was necessary because the Commonwealth's witness, the detective, was ill. Clearly, the Commonwealth did not prove that it had acted with due diligence. Their petition and the record states no more than a bald assertion that the detective was ill. This assertion is clearly insufficient. To hold otherwise would lessen the Commonwealth's burden to an insignificant level similar to that found in form petitions. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979).

Thus, the analysis we presented in Commonwealth v. Postell, supra, is not applicable herein. I would not hold that the Commonwealth has proven due diligence, based upon facts contained in the record, which were noted by the trial court, except under the very limited circumstance where the delay was clearly and exclusively caused by the administration of the judicial system and the Commonwealth's petition claims that the extension is required because of those judicial delays.

[ 290 Pa. Super. Page 518]

I agree with the members of majority where they opine that the trial court improperly granted the Commonwealth's June 21, 1979 petition for an extension. Therefore, Delpiano was brought to trial in violation of Rule 1100 and accordingly must be discharged.


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