*1 (1973),misplace their Davis, 310 A.2d conceded under the Davis, In trust. not hearsay on did hearsay facts there presented notes con- cause. merely Davis probable substantiate footnote, the broad state- support and does not aby cession probable on cannot substantiate hearsay hearsay ment that been, not, never has another there is way, cause. Stated in search affida- hearsay hearsay a of prohibition blanket view of a much too narrow vits, impose so hold would a warrant to issue. Such sufficiency requirements reason- any application render ridiculous holding would ableness and common sense. below order of
We would reverse the suppression trial. and remand the case for HESTER, JJ, der in this join opinion.
VAN VOORT 396 A.2d COMMONWEALTH BAYANI, George Appellant.
Melchor Superior Pennsylvania. Court of
Submitted 22, 1978.
Decided Dec. *2 of sentence reversed and and Judgment vacated defend- ant discharged. Ditter,
George Defender, Norristown, B. Assistant Public for appellant. Nicholas, Norristown,
William T. Attorney, District for Commonwealth, appellee. JACOBS, Judge, HOFFMAN,
Before President and CER- CONE, PRICE, VOORT, HESTER, VAN der SPAETH JJ.
PER CURIAM: in granting lower court erred contends that the
Appellant time under an extension of petition the Commonwealth’s to dismiss motion 1100(c) denying Pa.R.Crim.P. 1100(f). Be- under Pa.R.Crim.P. him charges against sentence we judgment we reverse agree, cause discharge appellant. ar- Township police Merion Lower February
On him charging written complaint and filed a appellant rested crimi- theft,2 stolen receiving property,3 burglary,1 with not commence until nal Trial did conspiracy.4 On complaint. of the written after the 182 days filed 2, 1977, the 179th day, Pa.R.Crim.P. of time under for an extension diligence, in which it its due despite claimed 1100(c),5 commencing it prevented judicial delay unavoidable complaint. within 180 written days trial *3 1977, the lower court held 5, day, On the 182nd 1100(c) petition, on the Commonwealth’s hearing him charges against dismiss the filed a motion to appellant 5, 1977revealed 1100(f). hearing August the facts. following judicial of courtrooms
Concerning unavailability the that the witnesses revealed testimony of several delay, during not trials any lower court did schedule 3, 1977, the the last day: 180th from June 27 to August which during 1977 an week” “open week of June the entire scheduled, during the court recessed trials were 1972, 334, 1; 6, 1482, Code, No. § 1. The Act of December P.L. Crimes 18 3502. § Pa.C.S.A. Code, supra; 2. 3921. § The Crimes 18 Pa.C.S.A. Code, supra;
3. The 3925. § Crimes 18 Pa.C.S.A. Code, supra;
4. 903. § The Crimes 18 Pa.C.S.A. displeasure practice previously 5. at the of last We have noted our Ray, petitions for in minute extensions of time Commonwealth when, 33, 36, 925, (1976), especially, as A.2d bar, dispose case at the lower does not Commonwealth’s prescribed period. expiration until after 1977, month of and the court was “for all July, practical purposes” 1, 3, 1977, closed on while judges attended the Conference of State Trial Judges. During four of the six preceding weeks between May 1977, when appellant’s trial, was first listed for June when the court trials, stopped scheduling four court; sat in the judges criminal division of the lower during the other two weeks of that period, two and three judges were so bench, From sitting, respectively. PRESIDENT LOWE, JUDGE RICHARD S. lower court judge presid- ing at this indicated hearing, that he had scheduled the lower upon court’s recess the assurances of the July prosecu- tor’s office that no Rule 1100 would arise problems during time. The prosecutor’s records revealed that there were 1, 1977; 1292 criminal cases pending as of it presented no evidence of the number of cases as of pending 1977. The Commonwealth presented also no evi- dence concerning number of those cases having Rule 1100 problems or the number of prosecutors available to handle them. clerk assignment from the office of the Court Admin-
istrator of the Montgomery County Court of Common Pleas testified that she is responsible listing criminal cases for trial. She first receives a list of cases for trial ready the prosecutor’s office. then lists them for She trial on a order, board in chronological date, their initial trial list and in columns under the names of the prosecutors assigned them. first try She listed case for trial Throughout May and June the prosecu- *4 tor to initially assigned try appellant’s case had a number of listed in very long trials his column ahead of appellant’s. The prosecutors office did not assign appellant’s case to another assistant district until attorney some time around 1, 1977, August when the prosecutor to originally assigned the case resigned. Appellant’s case did not reach “standby”, triable, or 29, 1977, status until imminently the 174th July 1977, day. 4, the August 181st the day, was first available day for thereafter due trial to the court’s schedule. The
373 to case had try appellant’s who was assigned new prosecutor prosecutor’s of the section transferred another just result, cases; appellant’s a and had no of as backlog office trial in his column. top” case to the of the list “zoomed case had been if appellant’s clerk testified that assignment well” earlier, it “might reassigned to another prosecutor June, or 1977. list top May have reached the of the by above, 5, 1977, the the lower hearing On after for an the extension granted court Commonwealth’s to 1100(c) proceeded immediately of time Rule under trial, the court dismissed During the lower trial jury. stolen receiving property. conspiracy of criminal charges of 1977, 8, appellant guilty found jury On 20, On August of movable burglary property. and theft motions, the 1977, post-verdict after denying appellant’s to three to eight years lower court sentenced appellant This convictions. burglary for theft imprisonment followed. appeal com 1100 Commonwealth
Rule
mandates
trial within 180
of
days
mence appellant’s
days
180
must be
beyond
Any delay
written complaint.6
days pursuant
from the
of
computation
either excluded
an extension
or
an order
justified by
granting
Rule 1100(d)7
O’Shea,
465 Pa.
Commonwealth
pursuant
1100(c).
to Rule
491, 495,
1100(c)
(1976).
provides:
A.2d
874
Rule
1100(a)(2) provides:
6. Rule
against
complaint
is
“Trial in a
case in which a written
filed
one
shall commence
later than
the defendant after
days
complaint
(180)
is
eighty
date
which
hundred
from the
filed.”
days
any
were excludable
not claim that
Commonwealth does
1100(d),
has
record
not revealed
our review
100(c) petition,
any.
hearing
an
At
on the
Commonwealth’s
unspecified part
Attorney
for an
assistant District
testified
16, 1977,
participated in another
trial with the
the week
he
appellant.
testimony
public
This
was
defend
defender
attorney
appellant’s
in fact
was
insufficient
to establish either that
day
first
unavailable on
trial,
unavailability
delay.
any
caused
Com-
listed
or that
such
Lamonna,
(1977);
Pa.
373 A.2d
Com-
monwealth v.
Mancuso,
(1977).
“At
time
to the
of the
any
trial,
commencement of
for the Commonwealth
attorney
to the court for an order
the time for
may apply
extending
A
of such
copy
application
commencement of trial.
shall be
served
the defendant
if
upon
through
attorney,
any,
the defendant shall also have the
to be heard thereon.
right
shall
if trial cannot be
application
granted only
Such
be
commenced within the
due
prescribed period despite
dili-
gence
the Commonwealth.
order
such
by
Any
granting
shall
the date or
within which trial
application
specify
period
The rule “attempts
shall be commenced.”
to eliminate delay
due to lack of due
on the
diligence
part
prosecutorial
Shelton,
v.
469
officers.” Commonwealth
Pa.
364 A.2d
694, 698
An extension of time
(1976).
1100(c)
be
because
“many
justifiably granted
causal relation-
between
ship
‘judicial delay’
Commonwealth’s
to commence trial
due
.
inability
despite
diligence
where the
is
g.]
prepared
Commonwealth
[e.
[situations
commence trial
to the
prior
expiration
mandatory
but the court
scheduling
because of
difficulties or the
Id.,
18,
like is unavailable.”
“We that situation to case try be unable may where the Commonwealth are cases prosecutors available outnumbered because the Here, however, no such expla- having problems. Rule 1100 on It well be that very day nation was could given. [the trial], prosecutor originally assigned case was called for which had to case involved in a trial also appellant’s was remember, however, that We must implications. establishing burden of due dili- Commonwealth has the not has met its record, on this gence and 1282. Id., burden.” 477 Pa. 383 A.2d at at Smith, controls the instant case. supra, Commonwealth County in the Montgomery clerk assignment appellant’s administrator’s office first listed case trial 16, 1977,two and half months before the 180th day one six court stopped hearing full weeks before the trials. clerk did not list it until District assignment Because that prepared try office informed her it was to Attorney’s case, 1977, the we can infer as of safely District knew the of the case and Attorney’s office nature could of its We can also length safely estimate trial. infer June 27 description period from the between 3, 1977, cases, which the no during court heard Attorney’s the District office was aware advance fully available; no or courtroom would be judge espe- then cially is the comment noteworthy by PRESIDENT JUDGE LOWE that he received assurances from the District Attor- problems office that no under Rule 1100 would arise ney’s knowledge because of the court’s recess. July Despite above, an case was first to assistant appellant’s District backlog prevented whose the case from Attorney being expired tried until after time too not or until it was late to reassigned given priority commence trial within 180 assistant days. subsequent District case to within week Attorney trial one brought of its him. Better of cases being assigned monitoring
would have resulted in the clearly commencement of appel- lant’s trial within the 180 time day period.
Moreover, we note that the presented Commonwealth evidence, that, during the six week from May 16 to all of its were prosecutors engaged in other cases Rule 1100 having problems. The clerk assignment listed cases the date the chronologically by District Attor- ney’s office informed her it was prepared to them. try Because the of time length between a written com- plaint and completion of the trial prosecutor’s preparation case, will we vary cannot infer that the 180 day time limit for all the cases listed ahead of appellant’s would have date, run before Rule 1100 *7 circumstances, Under all these we conclude that the Com- monwealth has failed to establish its due in diligence face of judicial unavoidable delay. we reverse Accordingly and vacate the of judgment sentence and discharge appel- lant.
Judgment of sentence reversed and vacated and appellant discharged. VOORT,
VAN J., der dissents.
SPAETH, J., files a Concurring Opinion.
HESTER, J., files a Dissenting Statement.
HOFFMAN, J., did not in participate the consideration or decision of this case.
SPAETH, Judge, concurring:
I am to unwilling rely the prosecutor’s conduct during June 27 August as a lack manifesting of do, due diligence. however, I agree Common wealth offered no reason why case could not have been tried sometime between 16 and June 27. I therefore concur in the order sentence and majority’s vacating order ing appellant discharged.
HESTER, Judge, dissenting:
I dissent. sentence rulings,
I would affirm the and the judgment of would discharge the court below. majority to the fact that his trial started 182 days due appellant of the following complaint. process while in the of bur- apprehended
Appellant of his question guilt. a residence. There was no glarizing in in process walked on him while he was police residence. the valuables for removal from the packing arrest, On the 179th day following The trial presented a an extension of time. complete the extension a full and granted following in hearing, holding part:
I believe that the mandate of the Court of Supreme case, has been satisfied that this after hav- been listed or certified on the ing for trial 16th of May, proceeded list, to the in an top progression; orderly it; that no cases were before placed that we were func- tioning the latter throughout part through much of June with a limited of trial judges number matters; available for criminal this case was not fact, prejudiced that in any way; point earliest possible date it was to a courtroom and that it missed the 180 limit day two From 3rd days. 5th, 1977. I likewise find that it’s though *8 it’s entirely speculative quite that there was some possible in this matter reason of delay by the fact that Mr. Walsh had a list of cases and the abide his long matter had to Cole, and the same is availability, regard true with to Mr. public defender to this case originally assigned who list, likewise had a it long and have been deferred may because of his unavailability.
In all events it seems to me that the district attorney the court administrator have done all that could possibly circumstances, be done under the that the case was put into the first room. The district files his Petition attorney for Extension of trial in a commencing timely Time for the trial
fashion, and it’s determined granted and it’s jury we will today, pick no later than shall be held in fifteen minutes. arrest. Appel- days following appellant’s
Trial started 182 stand, defense; he did not take lant offered no opinion. in the majority’s as recited charges convicted of the an appro- He received guilt. question There was him. sentence, discharge now the would majority priate of the court below. the judgment I would affirm A.2d 447 COMMONWEALTH HELSER, Appellant. Raymond Edward Pennsylvania. Superior Court 13, 1978. March Submitted Dec. Decided