Appeal from the Order of the Court of Common Pleas of Mercer County, Criminal at No. 348 Criminal 1986.
Thomas A. Dill, Sharon, for appellant (at 1413) and appellee (at 1499).
James P. Epstein, District Attorney, Mercer, for Com., appellee (at 1413).
Lorinda L. Hinch, Assistant District Attorney, Mercer, for Com., appellant (at 1499).
Tamilia, Popovich and Hoffman, JJ.
[ 374 Pa. Super. Page 495]
This case involves consolidated appeals. At 1413 Pittsburgh 1987 the defendant questions the order denying his motion to dismiss for alleged violations of his right to a speedy trial under Pa.R.Crim.P. 1100. At No. 1499 Pittsburgh 1987 the Commonwealth challenges the order granting the defendant a new trial, which is appealable under Pa.R.App.P. 311(a)(5). We affirm in both instances.
As for the facts attendant to No. 1413 Pittsburgh 1987, a review of the record indicates that the defendant was charged by criminal complaint on June 6, 1987, with Theft by Unlawful Taking and Criminal Conspiracy. This made the Rule 1100 rundate December 3, 1986. Because the defendant was not tried until December 8, 1986, five (5) days need to be excluded from the run-period to render the defendant's trial date timely under Rule 1100.
Instantly, no one disputes that the originally scheduled trial of the defendant was to occur during the October, 1986, term of court. However, the case was continued by the court from October, 1986 to November, 1986 trial term because of an overcrowded docket. Since court-related delay is, in itself, a justification for an extension (see Commonwealth v. Hollingsworth, 346 Pa. Super. 199, 499 A.2d 381 (1985)), the five (5) day delay in prosecuting the defendant was subsumed by the period elapsing between the October -- November, 1986 trial term. Therefore, we need not examine the defendant's Interstate Agreement on Detainers argument since we find that the trial of the
[ 374 Pa. Super. Page 496]
accused, having taken place following the grant of a timely extension to the Commonwealth, was timely and not violative of Rule 1100.
We next turn our attention to the issue raised at No. 1499 Pittsburgh 1987, i.e., the Commonwealth contests the lower court's grant of a new trial to the defendant on the ground that the prosecution's peremptorily striking the sole black person from the jury panel was not violative of the standards enunciated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
The Supreme Court in Batson allowed a defendant claiming discrimination in selecting the venire to prove a prima facie case of the same by establishing that:
476 U.S. at 97-98, 106 S.Ct. at 1723-1724 (Citations omitted). Also, the Court went on to set forth some of the indicia reflective of a purposeful exclusion of a racial class from the jury, as well as the rebuttal available to the prosecution once a prima facie establishment of the same has occurred; to-wit:
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly,
[ 374 Pa. Super. Page 497]
the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an ...