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submitted: September 30, 1983.


No. 963 Pittsburgh 1981, Appeal from the PCHA of the Court of Common Pleas, Criminal Division, of Allegheny County at No. 7505589.


John A. Halley, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Wickersham, Rowley and Popovich, JJ. Wickersham, J. filed a dissenting opinion.

Author: Popovich

[ 323 Pa. Super. Page 104]

This is an appeal from the Order of the Court of Common Pleas of Allegheny County denying appellant's, Jerome Harris', Post-Conviction Hearing Act (PCHA) Petition. 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. §§ 9541-9551. We reverse.

A review of the record reveals that on July 19, 1975, a complaint was filed against the appellant charging him with robbery, aggravated assault and the attempted murder of Eula Everson. Out of this incident arose the additional charge of murder as to Mrs. Everson's husband, who was shot in the head by the appellant. Further, although not related to the Everson matter, appellant was charged with the killing of one Ernest Rozier. Given the three cases lodged against the appellant, the District Attorney's office decided to list them all for trial on December 15, 1975. One assistant district attorney was assigned to prosecute the cases.

In preparation for trial, the District Attorney's office had anticipated that the Everson cases would be consolidated. However, in preliminary discussions with the trial judge, it became apparent that the judge was not receptive to the idea. As a result, appellant was tried first for the Thurmond Everson shooting and was found guilty by a jury on December 19, 1975.*fn1 Because no jurors were brought in

[ 323 Pa. Super. Page 105]

    during the last two weeks of December, 1975, the earliest the Eula Everson case could begin was January 5, 1976, the next scheduled session for jury trials. Notwithstanding this fact, the assistant district attorney, testifying at the PCHA hearing ordered by this Court (see Commonwealth v. Harris, 286 Pa. Super. 135, 428 A.2d 609 (1981)), stated he could not litigate the Eula Everson case immediately upon his return from the Christmas and New Year holidays on January 5, 1976, because he had been given another case for that date. He knew this in advance because it was the practice of the District Attorney's office to publish the trial list, with the name of the attorney assigned to the case, months before the scheduled trial date. The assistant district attorney recalled that all of this was "discussed at the time" the pretrial meeting occurred between counsel and trial judge, although "not of record." In particular, he remarked:

[ 323 Pa. Super. Page 106]

    them. We talked about a time frame. I can't tell you at this moment just exactly what time frame we agreed upon or discussed or had in mind but I know at that time I indicated that a petition for extension of time would be drawn up reflecting what we had discussed and that is where we ended those discussions that day before we actually started the trial.

(N.T. 9/2/81 at 12)

Further, the assistant district attorney did not recollect counsel for the appellant offering any strong objections to "the extension of time process." As recalled by the assistant district attorney, counsel for the appellant "recognized in the course of his duties exactly what was going to be necessary and acknowledged that that is the way it was going to have to go." (Emphasis added) A review of the record discloses the opposite. For example, counsel for the appellant testified at the PCHA hearing that he never requested that the Eula Everson case be postponed because he was ready to try all three cases -- Eula, Thurmond and Rozier -- "at any time." Although he could not remember if the assistant district attorney had made any specific requests of him to agree to an extension of the Eula Everson case after the Thurmond Everson murder trial, counsel for the appellant stated, "If he had, I would have said no." This aversion by appellant's counsel to prolonging the adjudication of any of his client's cases was not neutralized by the petition to extend filed by the Commonwealth on January 5, 1976, regarding the Eula Everson assault trial.

At the PCHA proceeding, counsel for the appellant conceded receiving the petition to extend. Nonetheless, he testified to obtaining notice of the petition "the day after the hearing was set in the petition." In other words, "If the hearing was set for the 5th of January, then [he] received it on the 6th." That same day, counsel phoned the District Attorney's office and spoke to the secretary in charge of homicides and was told that the petition to extend

[ 323 Pa. Super. Page 107]

    was signed by the court. Counsel did not complain to this purported ex parte hearing, as is evident by the fact that he could offer no reason for failing to raise the Rule 1100 issue in post-trial motions or on prior appeal. The Commonwealth could not refute this point, except by pure speculation as to appellant's counsel's presence at the extension hearing. No affirmative proof could be produced to establish the legitimacy of the proceeding. In dealing with this subject in appellant's initial appeal, this Court observed:

In the case before us, the petition to extend was granted to the Commonwealth without giving appellant the opportunity to contest it. Rule 1100(c) necessitates notice and a hearing before the grant of an extension of the run date. Therefore, appellant's claim that the extension was procedurally deficient is obviously of arguable merit.

Our finding that counsel was ineffective [since he could not state a reason for his failure to preserve the Rule 1100 issue on appeal] does not necessarily mean that the contention would have prevailed if it had been pursued. The Commonwealth has alleged that the extension was warranted because of a crowded court docket. However, this allegation, in the absence of evidence in the record, is insufficient to show that the Commonwealth used due diligence in bringing the accused to trial. (Emphasis added)

Commonwealth v. Harris, supra, 286 Pa. Super. at 137-138, 428 A.2d at 610. What is to be garnered from the aforesaid is that the Commonwealth had the burden of proving, by a preponderance of the evidence, that it exercised due diligence in trying to bring appellant to trial by January 15, 1976, which was the 180th day after the filing of the complaint. Appellant was tried on March 25, 1976.

We find that the Commonwealth failed to establish that a "crowded court docket" or any other reason excused its bringing the appellant to trial more than 2 1/2 months after the Rule 1100 run date.

[ 323 Pa. Super. Page 108]

Preliminarily, we wish to emphasize the seriousness with which this Court approaches the task of reviewing a Rule 1100 claim. It would be very easy for this Court to affirm perfunctorily a conviction on appeal, especially in a case in which a jury has found the appellant guilty as charged and hold that substantial justice has been accomplished. To do so, however, would be in direct conflict with our sworn duty to apply the law even-handedly as interpreted by our Supreme Court and not be swayed by collateral matters. See, e.g., Commonwealth v. Alexander, 318 Pa. Super. 344, 464 A.2d 1376 (1983) (ROWLEY, J., Concurring Statement). To that end, we will examine the arguments proffered by the Commonwealth to justify its asserted inability to bring the Eula Everson case to trial sooner than it did adjudicate the matter.

First, the Commonwealth avers that the assistant district attorney had "reasonably anticipated" that the Everson cases would be consolidated, and, when they were not, "[s]uch denial initiated the problem." The Commonwealth laments that "in all fairness [the Everson cases] should have been consolidated[, for e]ven the trial judge who denied the motion to consolidate has made statements to this effect." (Commonwealth's Brief at 10) As regrettable as this may be, even assuming for the sake of argument that such a motion was filed, though the record does not substantiate such a fact, the motion was denied and this action took place prior to the commencement of any of the three cases involving the accused. Consequently, the Commonwealth had the option of seeking a continuance in any or all of the cases, or assigning separate counsel to try those cases in which a Rule 1100 problem was apparent. As we shall see, the Commonwealth took neither of these routes. Accordingly, we cannot agree with the Commonwealth, at least at this stage ...

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