Appeal from the Judgment of Sentence entered June 27, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 84-09 1039-1044.
Eric L. Lilian, Philadelphia, for appellant.
Donna G. Zucker, Stuart Wilder, Assistant District Attorneys, Philadelphia, for Com.
Del Sole, Montemuro and Hester, JJ.
[ 367 Pa. Super. Page 192]
This is a direct appeal from the Judgment of Sentence imposed following Appellant's conviction of robbery and conspiracy. Numerous instances of trial court and trial counsel error are alleged by Appellant to be sufficient reasons for this court to rule that he be discharged or awarded a new trial.*fn1 After a careful examination of Appellant's contentions, we conclude they are without merit and we affirm the Judgment of Sentence.
[ 367 Pa. Super. Page 193]
Initially, Appellant submits that the trial court erred by granting the Commonwealth's Petition to Extend and by denying his Motion to Dismiss under Rule 1100 of the Rules of Criminal Procedure. In considering whether an extension of time was properly given, it must be determined whether the trial could not be commenced within 180 days despite the Commonwealth's due diligence; and, whether the trial was scheduled for the earliest possible date consistent with the court's business. Commonwealth v. Fortune, 346 Pa. Super. 465, 467, 499 A.2d 1094, 1095 (1985). To aid in making such a determination we must remain mindful that it is the Commonwealth's duty to meet this burden of proof by a preponderance of the evidence. Commonwealth v. Lamb, 309 Pa. Super. 415, 423, 455 A.2d 678, 682 (1983). Further, the decision by the trial judge to permit the Commonwealth a time extension is discretionary. Absent an abuse of such discretion we shall not disturb the trial judge's ruling. Commonwealth v. Lohr, 503 Pa. 130, 139-140, 468 A.2d 1375, 1380 (1983).
Appellant, herein, notes that his trial was continued "for reasons attributable entirely to co-defendant or his counsel". He also acknowledges that his trial was rescheduled to "the earliest possible date" and that later delays were necessitated because the court was in the midst of another jury trial. Appellant's only argument with respect to the delay in bringing him to trial is that the Commonwealth, by opposing his motion to sever his case from his co-defendant's, failed to demonstrate due diligence. In support of this argument Appellant cites cases which deal with the computation of time under Rule 1100 and which hold that a period of exclusion will not be recognized for delay caused by the unavailability of a co-defendant or his counsel. See: Commonwealth v. Hagans, 482 Pa. 572, 577, 394 A.2d 470, 472 (1978). It has been held that periods of delay caused by co-defendants and/or their counsel may not normally be excluded from the computation of the prescribed period under Rule 1100(d). Commonwealth v. Hamm, 325 Pa. Super. 401, 473 A.2d 128 (1984). (citations omitted). Appellant, however, has overlooked the line of cases which find
[ 367 Pa. Super. Page 194]
that delays caused by co-defendant and/or their counsel may constitute sufficient grounds for an extension of time for trial under Rule 1100(c). Id. (citations omitted).
In the instant case, the trial judge noted that Appellant and his co-defendant were charged with conspiracy and a single robbery. Separate trials would have required the duplication of testimony and evidence and would have caused the court to have "incurred the burdensome cost of two lengthy trials". Under these circumstances we perceive no abuse of discretion in the trial court's decision to grant the Commonwealth's Motion to Extend and to deny the Appellant's Motion to Dismiss under Rule 1100.
Appellant's second allegation centers on the trial court's denial of Appellant's motion to dismiss the jury panel. Appellant argued before the trial court and now submits on appeal that the Commonwealth purposefully and deliberately exercised its peremptory challenges to exclude black persons from the jury. Since Appellant has preserved his objection to the Commonwealth's use of peremptory challenges we will analyze Appellant's claim in this direct appeal under the test announced in Batson v. ...