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COMMONWEALTH PENNSYLVANIA v. GREGORY BULLING (06/29/84)

filed: June 29, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
GREGORY BULLING, APPELLANT



No. 2981 PHL 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 1438-40 May Term 1980.

COUNSEL

Ronald Segal, Philadelphia, for appellant.

Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Com., appellee.

Cavanaugh, Rowley, and Hoffman, JJ.

Author: Hoffman

[ 331 Pa. Super. Page 89]

Appellant challenges: (1) the four extensions of the Rule 1100 rundate; (2) the sufficiency of the evidence; (3) the lower court's denial of his suppression motion; and (4) the lower court's decision to allow a Commonwealth witness to testify as an expert. Because we find all of appellant's claims meritless, we affirm the lower court's judgment of sentence.

On December 13, 1979, appellant was arrested and charged with possession with intent to deliver and delivery of a controlled substance and conspiracy, after police observed appellant receive two credit cards in exchange for a small plastic packet later found to contain heroin. A preliminary hearing was originally scheduled for December 24, 1979, however, on that date the first in a long series of delays occurred which were to characterize the procedural history of this case. Eventually, on June 3, 1981 a hearing was held on appellant's motion to suppress evidence, namely, the credit cards and packet of heroin. Immediately following the hearing, and the denial of appellant's suppression motion, a non-jury trial commenced. At the conclusion of trial, appellant was found guilty on all charges. Post-verdict motions were timely filed and denied. On November 5, 1981 appellant was sentenced to two concurrent

[ 331 Pa. Super. Page 90]

    prison terms of three-to-twenty-three months. This appeal followed.*fn1

Appellant alleges that the time for trial was improperly extended, pursuant to Pa.R.Crim.P. 1100(c), on four separate occasions. However, before turning to the four Rule 1100 extensions in the present case, we must first consider some of the principles applicable to Rule 1100 extensions in general. Under Rule 1100(c), the Commonwealth may be granted an extension of time for trial if a court finds that trial cannot be commenced within the prescribed period despite the exercise of due diligence by the Commonwealth. Pa.R.Crim.P. 1100(c); Commonwealth v. Sharp, 287 Pa. Superior Ct. 314, 430 A.2d 302 (1981). But, the Commonwealth bears the burden of showing, by a preponderance of the evidence, that it has acted with due diligence, and has thereby complied with the mandate of Rule 1100(c). Commonwealth v. Ehredt, 255 Pa. Superior Ct. 84, 386 A.2d 147 (1978); Commonwealth v. Jenkins, 248 Pa. Superior Ct. 300, 375 A.2d 107 (1977). When we review a lower court's ruling, relative to whether the Commonwealth has met its burden of proving due diligence, we only consider the evidence presented at the hearing by the Commonwealth and so much of the evidence presented by the defendant which remains uncontradicted. Commonwealth v. Sharp, supra; Commonwealth v. Sinor, 264 Pa. Superior Ct. 178, 399 A.2d 724 (1979). In summarizing the relevant procedural history of the instant case, we note that a criminal complaint was filed against appellant on December 13, 1979, making the original Rule 1100 rundate June 10, 1980. However, pursuant to four Commonwealth extension petitions, the time for trial was successively extended to August 25, 1980; January 20, 1981; March 24, 1981; and June 4, 1981. On June 3, 1981, appellant was tried and found guilty on all charges.

[ 331 Pa. Super. Page 91]

With the foregoing facts and principles in mind, we shall now address appellant's challenge to each of the four extensions seriatim:

I. The Extension from June 10, 1980 to August 25, 1980

On June 3, 1980, a Commonwealth extension petition was timely filed pursuant to Rule 1100(c). A hearing on this petition was held before the Honorable Ned L. Hirsh on June 26, at which time Judge Hirsh granted the petition and extended the time for trial until August 25, 1980. Although the record does not contain a transcript of the June 26 extension hearing,*fn2 we are able to conclude that the Commonwealth's first extension petition was properly granted. This Court has previously held that the Commonwealth need not prove that it acted with due diligence on prior trial or hearing dates for which a Rule 1100 extension was not sought. Commonwealth v. Tann, 298 Pa. Superior Ct. 505, 444 A.2d 1297 (1982); Commonwealth v. Sharp, supra. Rather, the relevant inquiry at the extension hearing is whether the Commonwealth demonstrated due diligence at the last listing before the rundate at which it was unable to bring appellant to trial. Commonwealth v. Tann, supra; Commonwealth v. Sharp, supra. Here, the final listing prior to the original June 10, 1980 rundate was May 13, 1980. On that date, a preliminary hearing was held at which the Commonwealth established a prima facie case against appellant.*fn3 Following the preliminary hearing, appellant filed a motion to quash return of the transcript. See Pa.R.Crim.P. 306, 307. It would be unreasonable and unrealistic to expect that this motion could have been litigated

[ 331 Pa. Super. Page 92]

    and appellant brought to trial after the May 13 preliminary hearing, but before the June 10 rundate. Indeed, it was not until July 3, 1980, that appellant's motion to quash return of the transcript was denied. Therefore, we must agree with the Commonwealth that, while it was unable to try appellant by the original rundate, it diligently advanced toward trial by timely establishing a prima facie case at the preliminary hearing. Accordingly, we find that the Commonwealth exercised due diligence prior to June 10, 1980, and that its first extension petition was, therefore, properly granted.

Subsequent to the granting of the Commonwealth's first extension petition, appellant executed two written waivers of the Rule 1100 rundate. See Pa.R.Crim.P. 1100(d)(2).*fn4 The first waiver, executed on August 12, 1980, extended the time for trial to September 17, 1980; the second one was executed on September 17, and extended the trial deadline to November 22, 1980.

II. The Extension from November 22, 1980 to January 20, 1981

On November 21, 1980, the Commonwealth timely filed its second extension petition. The Honorable Ethan Allen Doty presided at an evidentiary hearing on this petition on December 30, 1980. In considering whether the Commonwealth had exercised due diligence, Judge Doty effectively took judicial notice of the uncontested notation of a prior hearing judge who, on November 18, 1980 (the last trial listing before the November 22 rundate), certified "Arresting officer ill." (N.T. December 30, 1980 at 6). Based upon this uncontested notation, Judge Doty apparently

[ 331 Pa. Super. Page 93]

    found that the Commonwealth's diligent efforts to try appellant prior to the rundate were thwarted by circumstances beyond the Commonwealth's control. See Commonwealth v. Tann, supra (where unavailability of Commonwealth witness was beyond Commonwealth's control, it was reversible error not to grant Commonwealth's extension petition); accord, Commonwealth v. Sharp, supra. Accordingly, Judge Doty granted the Commonwealth's extension petition and extended the Rule 1100 rundate to January 20, 1981. Thus, in deciding whether the grant of the Commonwealth's second extension petition was proper, the question we must address is: may a court effectively take judicial notice of uncontested notations in the court record in determining whether the Commonwealth has exercised due diligence in accordance with Rule 1100(c)? We believe that this Court's recent decisions in Commonwealth v. Harris, 315 Pa. Superior Ct. 544, 462 A.2d 725 (1983) and Commonwealth v. Bright, 303 Pa. Superior Ct. 98, 449 A.2d 596 (1982), have resolved the issue. In Harris, the defendant's trial date was listed nine days beyond the Rule 1100 rundate, due largely to the unavailability of criminal courtrooms and the recusal of the first two judges to whom the case had been assigned. Consequently, the Commonwealth timely filed a petition for a Rule 1100 extension. In response thereto, the defendant petitioned to dismiss the charges under Rule 1100(f). Following a hearing, the lower court extended the Rule 1100 rundate. The granting of this extension was based almost exclusively on the lower court's decision to take, in effect, judicial notice of the uncontested notations in the court record which revealed the reasons for the delay. The lower court in Harris concluded, based on the uncontested notations in the record, that the Commonwealth had exercised due diligence in attempting to bring the accused to trial. However, these uncontested notations were accepted as true by the lower court when it impliedly took judicial notice of same. A review of the transcript of

[ 331 Pa. Super. Page 94]

    the extension hearing in Harris discloses the following exchange:*fn5

THE COURT: .I have 2-6 normal run date of 8-6.

.Commonwealth petition filed 7-17. Timely filed.

.2-13 to 2-22, voluntary defender unprepared. Less ...


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