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decided: October 18, 1983.


NO. 81-3-373, Appeal from an Order of the Superior Court of Pennsylvania dated August 15, 1980, reversing the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, indexed at No. 2982-76 281 Pa. Superior Ct. 26, Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. McDermott, J., joins this opinion and files a concurring opinion. Zappala, J., files a dissenting opinion. Roberts, C.j., did not participate in the consideration or decision of this case.

Author: Hutchinson

[ 502 Pa. Page 395]


This is the Commonwealth's appeal from an opinion and order of Superior Court discharging appellee, Joseph Crowley, because his Pa.R.Crim.P. 1100 rights were violated and his trial counsel was ineffective for failing to protect those rights. Superior Court held that the Pa.R.Crim.P. 1100(c) extension Common Pleas granted the Commonwealth was unjustified because it failed to establish unavoidable judicial delay under Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), and because it did not ascertain whether Pa.R.Crim.P. 1100 could be complied with by moving the case ahead of others. For the reasons which follow we hold that Commonwealth v. Mayfield does not require the Commonwealth to exhaust the possibility of rearranging overcrowded dockets to accommodate the Rule 1100 run dates regardless of that rearrangement's effect on other matters. We therefore reverse the order of the Superior Court.

Following a non-jury trial, Montgomery County Common Pleas Judge Milton Moss found appellee guilty of possession of instruments of escape while in prison and sentenced him to six months to two years in prison, consecutive to a sentence he was then serving. Represented by new counsel on direct appeal, appellee claimed that trial counsel was

[ 502 Pa. Page 396]

    ineffective for failing to protect his Rule 1100 rights. Superior Court remanded the case for an evidentiary hearing to determine if trial counsel had a reasonable basis for failing to object to the Commonwealth's petition. Superior Court directed that if Common Pleas determined that counsel had no reasonable basis for failing to object and if the objection would have had arguable merit, it should hold a hearing to determine if it should have granted the extension. Then if it determined the petition should not have been granted, Superior Court directed Common Pleas to discharge appellee. Commonwealth v. Crowley, 259 Pa. Superior Ct. 204, 213-214, 393 A.2d 789, 793 (1978). On remand, following an evidentiary hearing, Common Pleas reluctantly determined that trial counsel had failed to file an answer to the petition because of his inattention or oversight.*fn1

At the evidentiary hearing on trial counsel's ineffectiveness the trial court also heard testimony on the merits of the Commonwealth's petition for an extension of time. The Commonwealth established that the criminal complaint was filed on July 21, 1976. Thus, the one hundred eightieth day from that date was January 17, 1977. Following appellee's arraignment on October 12, 1976, the Commonwealth listed his case for trial for November 8, 1976. When his case was not reached on that date, the assignment clerk placed it on a "standby basis" for pending cases. It was placed underneath the pending cases assigned to Mr. Dunbar, the assistant district attorney assigned to appellee's case, with list dates prior to November 8.

As soon as Mr. Dunbar would finish one trial or guilty plea the case at the top of the pending list was pulled and assigned to the next available courtroom. Thus, the backlogged pending cases were assigned to courtrooms in chronological order beginning with the cases with the oldest list dates unless a case had to be rescheduled because of a

[ 502 Pa. Page 397]

    defense attorney's scheduling conflict.*fn2 Following this procedure, appellee was tried on February 8, 1977, twenty-two days after the original 180 day period had expired.

At the evidentiary hearing on trial counsel's effectiveness, the criminal assignment clerk stated Montgomery County Common Pleas had no provision for changing the order of cases for Rule 1100 purposes. Nevertheless, during the eleven week period from the listing of the case as ready and the original Rule 1100 run date, January 17, 1976, a substantial number of Montgomery County Common Pleas judges were available to try criminal cases except for a two week period. The criminal trial assignment clerk for the Court Administrator's Office testified that during those two weeks, trials were not held because a one week argument court and an "open week" were scheduled instead. The full criminal division of four trial judges and one list judge was available for six weeks and two trial judges and one list judge were available for three weeks. From January 17, 1976 until trial began on February 8, 1977, the full criminal division was also available. These figures reflect a diligent effort to reduce the October 31, 1976 inventory of 1299 untried criminal cases in Montgomery County of which 824 were ready for trial. N.T. at 23 (December 11, 1978).

Common Pleas determined that once the Commonwealth listed the case for trial it moved up the board in order as rapidly as possible in consideration of trials, guilty pleas, ARD's and nolle prosses. Therefore, it held that a timely defense opposition to the Commonwealth's petition for an extension would have had no basis and Common Pleas properly granted the Commonwealth's petition. On appeal, the Superior Court panel determined that the Commonwealth failed to establish that the "judicial delay" could not have been avoided as required by Commonwealth v. Mayfield, supra. Commonwealth v. Crowley, 281 Pa. Superior Ct. 26, 421 A.2d 1129 (1980).

[ 502 Pa. Page 398]

In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694, 699 (1976), this Court first stated in a dictum that judicial delay may justify the granting of an application for an extension of time when "the Commonwealth is prepared to commence trial prior to the expiration of the mandatory period but the Court because of scheduling difficulties or the like is unavailable." In Mayfield, this Court, again in a dictum, stated that if a delay beyond the prescribed period for trial is due to the judiciary, the record must show the causes of judicial delay and the reasons why it is unavoidable. This Court cited favorably two general principles governing the trial docket to avoid undue delay: (1) trial of criminal cases before civil cases and (2) in general, trial of jailed defendants before defendants on bail.*fn3

In reviewing Superior Court's interpretation of our Mayfield decision and its application to this case it is useful to recite the purpose of Rule 1100.*fn4 We adopted Rule 1100

[ 502 Pa. Page 399]

    pursuant to our supervisory powers to reduce the backlog of criminal cases in Common Pleas and to provide an objective standard for protection of defendant's speedy trial rights. Commonwealth v. Mayfield, 469 Pa. at 217, 364 A.2d at 1347; Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972).*fn5

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 [153-54], 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 n. 4, 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.

Commonwealth v. Genovese, 493 Pa. 65, 69-70, 425 A.2d 367, 369-70 (1981). The public, however, has an important "interest in having the guilt or innocence of the accused determined. Indeed, the criminal justice system owes society the ...

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