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November 9, 1984


No. 00474 Harrisburg, 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Franklin County at No. 237-1983.

Before Del Sole, Popovich and Roberts, JJ.

Per Curiam:

Judgment of sentence affirmed.


While I concur in the majority's determination that Appellant waived his right to a preliminary hearing, I must dissent from the majority's conclusion that Appellant is not entitled to relief for a violation of Rule 130.

Rule 130(a) provides that:

In Commonwealth v. McGeachy, 487 Pa. 25, 407 A.2d 1300 (1979), we defined necessary delay as that time essential for the completion of administrative processing of an accused. The record in this case indicates that Appellant was arrested for driving under the influence on May 21, 1983. He was promptly transported to police headquarters, and incarcerated. It was not until May 31, 1983, ten days after his arrest, that a preliminary hearing was held. Appellant remained incarcerated for this entire ten day period. I would find that, on its face, such a delay appears both unreasonable and unnecessary.

The majority maintains that Appellant suffered no prejudice, and is not entitled to relief since he did not demonstrate that any prejudicial evidence was gathered against him, or that his defense was impaired due to the delay. I disagree. Our courts have attempted to remedy violations of Rule 130 by suppressing prejudicial evidence obtained as a result of the unnecessary delay. Commonwealth v. Futch, 447 pa. 389, 290 A.2d 417 (1972). In a case such as this, no prejudicial evidence was gathered, and the remedy ordinarily provided in Rule 130 violations cannot apply. However, Appellant has been prejudiced by means of his incarceration, and therefore, he should be afforded relief.

In Commonwealth v. DeCosey, 246 Pa. Super. 412, 371 A.2d 905 (1977), the appellant's preliminary hearing was not scheduled within ten days of his preliminary arraignment as required by Rule 140. Rule 140, like Rule 130 does not provide for automatic discharge of a defendant upon proof of a violation. Contrast: Pa.R.Crim.P., Rule 1100. This Court concluded that noncompliance did not warrant automatic discharge, but rather, some resulting prejudice had to be shown. The DeCosey court expressly recognized incarceration as a form of such prejudice, which if proven, would entitle Appellant to discharge. I would apply the DeCosey court's reasoning to the facts herein, and find that Appellant's incarceration for a ten day period while awaiting a preliminary hearing is a form of prejudice entitling him to relief.

Evidence of the prejudice is enhanced when one looks at the purpose of Rule 130. This Rule insures that an accused is promptly afforded certain protections which include: the right to know the nature and cause of the charges; the right to counsel; the right to bail; and the right to have scheduled a preliminary hearing. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Rule 130 must be enforced to insure that these important protections are made available to a defendant without unnecessary delay. To enforce Rule 130 only when prejudicial evidence is gathered, as the majority would have it, is unfair and unjust. Taking the majority's reasoning to its logical conclusion would have us find that a defendant could be incarcerated for an entire 180 day period without being told of the nature and cause of the charges against him, of his right to counsel, and of the other protections embodied in Rule 130. There would be no remedy provided to such a defendant as long as no prejudicial evidence was gathered against him during this period. Such an absurd result is clearly contradictory to the purpose and intent of the Rule.

For this reason I would disagree with the majority that the burden remained on Appellant to prove prejudice. I believe that Appellant met his burden by informing the court that he remained incarcerated, prior to his preliminary hearing, for a period of time which clearly appeared to be unnecessary. However, I also believe that the burden should have then shifted to the Commonwealth. The Commonwealth should have been given the opportunity to prove that the delay was reasonable under the circumstances, or that Appellant was not prejudiced by the delay since he was being held on an unrelated charge. See: Commonwealth v. Young, Pa. Super. , 465 A.2d 684 (1983); Commonwealth v. Riley, 260 Pa. Super. 280, 393 A.2d 1263 (1978), Commonwealth v. Beatty, 281 Pa. Super. 85, 421 A.2d 1159 (1980); and Commonwealth v. Barnett, 253 Pa. Super. 39, 384 A.2d 965 (1978).

Accordingly, I would vacate the judgment of sentence and remand the case to the trial court for an evidentiary hearing to determine whether the delay was reasonable, or whether Appellant's incarceration could be attributed to something other than the delay.


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