Appeal from the Order in the Court of Common Pleas of Erie County, Criminal Division, No. 1296, 1297, 1298, 1589 of 1983 and No. 110 of 1984.
Timothy J. Lucas, Assistant District Attorney, Erie, for Com., appellant.
Philip B. Friedman, Erie, for appellee.
Cirillo, President Judge, and Montemuro and Tamilia, JJ.
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Appellee was originally charged with five counts of burglary and related offenses and possession of cocaine with intent to deliver. A motion to dismiss on the part of appellee, under Pa.R.Crim.P. 1100, was granted by the court from which the Commonwealth appeals.
Although some five continuances and/or specific Rule 1100 waivers were entered into by appellee during the course of the two and one-half (2 1/2) year period between appellee's arrest and the granting of appellee's motion to dismiss, the only waiver at issue is the one dated September 8, 1984. The trial court found that this waiver, which extended from "September 14, 1984 to the next regularly scheduled criminal term of the court after rulings on defendant's pre-trial motions" (Defendant's Exhibit. D), was invalid because it was a waiver for an indefinite time and a specific date for expiration of the continuance was required. Further, the court found the application for continuance defective because it was never entered as an Order of Court, filed with the Clerk of Courts or made part of the record.
Factually, the Commonwealth initially mailed the motion for continuance on August 28, 1984, before the run date, to counsel for the defendant, to be completed and returned for filing. When returned by defense counsel on September 12, 1984, the date was altered for beginning the continuance from September 8 to September 14, 1984 and, according to the Commonwealth, this would have permitted a gap in time of six days which would have been detrimental to the Commonwealth. The Commonwealth, therefore, returned the original executed Rule 1100 waiver to appellee and asked him to sign a second one which he never did. Instead, counsel for defendant destroyed both documents. To protect itself, on September 7, 1984, the Commonwealth filed a petition to extend time and obtained a rule to show
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cause returnable September 12, 1984. Defendant did not reply nor did he or his counsel attend the hearing scheduled for September 12, 1984.
The Commonwealth now contends the waiver that was executed was sufficiently definite to stop the running of Rule 1100. Further, the Commonwealth asserts it had nothing to gain by the extensions in time which were the result of extensive pre-trial motions made by appellee and appellee was not prejudiced because he was free on bail most of the time. The Commonwealth argues the court applied Rule 1100 in too restrictive or mechanical a fashion and that proper resolution of the proceeding under Rule 1100, considering the circumstances of this case, now requires a reversal.
The Commonwealth also contends that because the petition to extend time, filed by the Commonwealth on September 7, 1984, was not answered or responded to by the defendant/appellee at the hearing set by the court, in which no one on behalf of appellee attended, the defense is deemed to have consented to the petition to extend time. The Commonwealth alleges it was error for the court to hold that because there was no ruling on the Commonwealth's petition to extend time, it was ineffective.
Lastly, the Commonwealth contends it should have been permitted to call the trial judge as a witness to testify as to the parties' understanding with respect to the continuance and that the court erred in limiting its examination of appellee's trial counsel with respect to his availability.
Appellee counters that the record clearly supports the trial court's dismissal under Rule 1100. No waiver was ever placed on record and the Commonwealth's contention that an open-ended agreement existed to indefinitely toll Rule 1100 is meritless and unsupported. The Commonwealth's petition to extend time could not extend or stay Rule 1100 indefinitely because no action was ever taken on it by the Commonwealth. Appellee argues that no abuse of discretion was present in the court's refusal to allow the trial judge to be called as a witness because the offer of
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proof as to the judge's proposed testimony showed it was not relevant. The trial judge would not have signed the rule to show cause on the motion to quash, for violation of Rule 1100, filed by the defendant in November 1984 (subsequently withdrawn), or the motion for continuance of November 15, 1984, had any "understanding", to which he was to testify been present. As the court pointed out, cross-examination of appellee's trial counsel was not limited but directed to certain relevant time periods. Lastly, appellee contends the Commonwealth needlessly delayed this case by refusing to provide mandatory discovery material.
The lower court found that while a waiver form was executed between the defendant/appellee and the Commonwealth, effective September 14, to the next criminal trial term following disposition of pre-trial motions, it was invalid because it was not filed of record and it was not specific as to date of termination. Secondly, he concluded the motion of September 7 and hearing scheduled on the motion for September 12, to which the appellee failed to respond, were ineffective to preserve the Commonwealth's right to an extension.
This case presented to the hearing judge serious problems and his reluctance to dismiss was rightfully expressed throughout his Opinion. Applying strict legal principles to the facts presented to ...