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February 5, 1982


No. 2466 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County at No. 79-10, 313.

Before Price, Wickersham and Lipez, JJ. Price, J. did not participate in the consideration or decision of this case.


On July 20, 1979, following a non-jury trial before the Honorable Thomas C. Raup of the Court of Common Pleas of Lycoming County, appellant, Linda M. Nichols, was found guilty of unlawful possession and unlawful delivery of marijuana on November 7, 1977, and unlawful possession and unlawful delivery of marijuana on January 8, 1978. Appellant made a post-verdict motion orally at the conclusion of the trial, see Pa.R.Crim.P. 1123(b), which motion was denied, and on November 19, 1979, appellant was sentenced to serve a term of fifteen days to six months imprisonment and ordered to pay a fine in the amount of $200.00. This appeal followed.

The sole issue on appeal is whether the lower court should have discharged appellant pursuant to the provisions of Pa.R.Crim.P. 1100.*fn1 Appellant contends that the lower court erred in denying her motion to dismiss the charges under Rule 1100 and in granting the Commonwealth's motion to extend the time for commencement of trial through the end of the July session of trials, that is through July 20, 1979.As previously stated, trial occurred in the instant case on July 20, 1979.

The facts pertinent to the Rule 1100 issue are summarized in Judge Raup's opinion, filed on July 13, 1979, as follows:

The criminal complaint in the instant case was filed on December 27, 1978 and therefore the Rule 1100, trial deadline was June 25, 1979. The Motion to Extend Time for Commencement of Trial was filed on June 25, 1979.Although the warrant was issued on December 27, 1978, it was not served until April 9, 1979. The only explanation for this long delay is that the officers who were in charge of the case were working on a number of other cases, and didn't get around to it. Once an effort was made to serve the warrant, no difficulty was encountered in obtaining service.

The defendant having been preliminarily arraigned before the magistrate on April 9, the preliminary hearing was scheduled for April 18, 1979. Prior to that hearing, however, the prosecuting officer learned that the undercover agent who would be a necessary witness in the case was recovering from an operation and was on medical leave and would not be returning to work until May 1. The hearing was therefore rescheduled from April 18 to May 2, 1979. The May 2 hearing in turn was continued for one week until May 9, 1979 because of a conflict in the schedule for the attorney for defendant Nichols.After the May 9, 1979 hearing the defendant was bound over for court. The first date for court arraignment after a preliminary hearing was May 29 which meant that the thirty-day period for filing an omnibus pre-trial motion was not reached until June 28, 1979. The June session of criminal trials concluded on June 22, 1979 and therefore the next session for criminal trials in this county will be held during the dates July 16 through 20, 1979.*fn2

In Commonwealth v. Sharp, Pa. Super. , 430 A.2d 302 (1981), this court set forth the test for determining whether the Commonwealth's motion for extension of time for trial beyond the prescribed period of 180 days, see Pa.R.Crim.P. 1100(a)(2), should be granted.

"'A court may grant the Commonwealth an extension of time for trial if it finds that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.' Pa.R.Crim.P. 1100(c)." Commonwealth v. Miller, 270 Pa. Super. 178, 182, 411 A.2d 238, 240 (1979). 'The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c).' Commonwealth v. Ehredt, 485 Pa. 191, 193, 401 A.2d 358, 360 (1979). (citations omitted). In reviewing the lower court's ruling that the Commonwealth has or has nor met its burden of proving due diligence, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted. See Commonwealth v. Ehredt, supra at 193, 401 A.2d at 360. 'Thus, when witnesses become unavailable toward the end of the Rule 1100 time period--whether through vacation, illness, or other reasons not within the Commonwealth's control--the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of tiem is warranted.' Commonwealth v. Sinor, 264 Pa. Super. 178, 183 n.5, 399 A.2d 724, 727-28 n.5 (1979).

Id. at , 430 A.2d at 304.

Justice Kauffman, speaking for the supreme court, recently stated that:

Rule 1100 'serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society,' Commonwealth v. Brocklehurst, 491 Pa. 151, , 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308, n.4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our ...

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