407 A.2d 1320 | Pa. Super. Ct. | 1979
Lead Opinion
This appeal arises from Richard Ferraro’s conviction for forgery,
Rule 1100(a) requires that an accused be tried within one hundred and eighty days after the commencement of criminal proceedings against an accused. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Subparagraph (d)(1) of this Rule allows for an exception to the general provisions of 1100(a). The provisions of 1100(d)(1) state that any delay at any stage of the proceedings which is caused by the unavailability of the defendant or his attorney shall be excluded from the tabulation of the one hundred and eighty day period. The comments to the Rule expand on this point and specifically provide that unavailability for the purpose of subparagraph (d)(1) includes any time during which the accused has “contested extradition, or when a responding jurisdiction delayed or refused to grant extraditions [sic].”
Appellant focuses his argument upon the burden of proof question. Appellant avers that he never contested extradition. It is appellant’s contention that the Commonwealth of Pennsylvania, in the person of Detective Frank Stewart and Attorney Janice Cohen, simply told appellant on February 20, 1975 that he would be notified when he had to appear for trial in Pennsylvania. Appellant says that at all times Pennsylvania authorities could reach him at his home in New Jersey and that certain detectives from Pennsylvania did phone him at his New Jersey home. Appellant claims that notice was never sent to him, so he did not return to Pennsylvania until May 5, 1975 after he had become aware that extradition proceedings had been commenced against him. The Commonwealth, on the other hand, claims that when appellant was arrested by New Jersey authorities on February 19, 1975 he refused to waive extradition, and again steadfastly refused to waive extradition at his preliminary hearing on February 20, 1975. This refusal necessitated the commencement of extradition proceedings.
As was previously indicated, a hearing on the Rule 1100 issue was held before Judge Richette on October 9, 1975. At this hearing no witnesses testified. The Commonwealth informed the court that Attorney Janice Cohen was no longer with the District Attorney’s office and was “unavailable” as a witness, although the Commonwealth offered to bring Detective Stewart into the courtroom to testify regarding the New Jersey hearing. Appellant’s counsel similarly indicated that the New Jersey attorney who represented appellant at the February 20 hearing might be called. However, neither witness was called because the court deemed this unnecessary. Instead, the court held that the Commonwealth sustained its burden of proof by merely
Nevertheless, we do not now discharge appellant since we find that this issue was not properly adjudicated by the court below. It appears from the record that both appellant and the Commonwealth would have called witnesses had the court so required. Because the court ruled without receiving testimony, we have no facts upon which to base a decision. This is not a case where the parties, particularly the Commonwealth, had no evidence to offer. If this were simply an instance where the Commonwealth offered the court no evidence on the Rule 1100 issue, then we would appropriately hold that the Commonwealth did not sustain its burden of proof. However, in the instant case, the court’s ruling precluded the production of probative evidence. Therefore, it is appropriate that we order a new hearing on the Rule 1100 issue. We have in the past ordered new hearings on Rule 1100 issues where the evidence and record before us were so incomplete that we could not meaningfully review the issue. Commonwealth v. Clark, 256 Pa.Super. 456, 390 A.2d 192 (1978); Commonwealth v. Krall, 249 Pa.Super. 433, 378 A.2d 373 (1977); Commonwealth v. Tome, 248 Pa. Super. 242, 375 A.2d 78 (1977); Commonwealth v. Clark, 248 Pa.Super. 184, 374 A.2d 1380 (1977). In light of the facts in the instant case, we conclude that a complete hearing on the Rule 1100 issue must be held.
. Crimes Code, 18 Pa. C.S. § 4101 (1973).
. Id. at § 3921.
. Id. at § 3925.
. Id. at § 3922.
. Vehicle Code, 75 Pa. C.S. § 7103 (1977).
. 75 Pa. C.S. § 7122 (1977).
Dissenting Opinion
dissenting:
I dissent. I would affirm the conviction and the judgment of sentence.