*1 intrusivе and hence less the proper course is to award or custody parent parents. determination today
...
an
only
appropriate rec-
[o]ur
ognition relationship
blood
has
parenthood
traditionally served and continues to serve as our socie-
ty’s fundamental
criterion for allocating control over and
children,
our
responsibility
and that without
some
harm,
showing of
the courts should not
interfere with
arrangement.
Order affirmed.
WIEAND, J., concurs in the result. Pennsylvania, Appellant
COMMONWEALTH of Joseph M. LAFTY.
Superior Pennsylvania. Court of
Argued Feb. Sept.
Filed *3 Barthold, McGlaughlin Gaele Assistant District Attorney, Commonwealth, Philadelрhia, for appellant. Toll, Philadelphia, appellee.
Gilbert E. for SPAETH, Judge, WICKERSHAM, Before President and BROSKY, CIRILLO, BECK, HESTER, POPOVICH and JJ.
HESTER, Judge: Appellee, Joseph charged M. was with Lafty, simple assault, assault, of aggravated possession an instrument of weapon, and of an offensive possession crime-generally, beating of a of the severe as result conspiracy criminal 8, public 1979 on an elevated Thomaston on June Ronald Allegheny Ave- Kensington at platform transportation uttering accosted victim Philadеlphia. Appellee in nues him to beat proceeded remark and then racial disparaging a provoke not four” The victim did a “two board. with Thomaston Mr. companions. and his appellee actions elbow, applied casts were right on his surgery underwent Hospi- in he remained Germantown arms and his fractured repelled as he fractured His arms were days. tal for ten cage. to his head rib blows 1980, 30, appellee trial on
Following non-jury a and criminal con- assault aggravated guilty found was аlleged motions post-verdict Appellee’s spiracy. petition the Commonwealth’s granting erred
trial court No. Pa.R.Crim.P. of the trial date under for an extension hearing, the lower following a brief July 1100. On rights trial were speedy that his appellee with agreed court The discharged. Com- Accordingly, appellee violated. appeal. filed this monwealth on the Lafty day Mr. against were filed charges
Criminal result, original crime, 1979. As a June 1100(a)(2) was De- under Rule for trial estimated run-date scheduled preliminary The cember 13, 1979 was however, July 1979; a continuance June as he remained unavailability to the victim’s due necessary hear- preliminary Hospital. at Germantown patient bound 13, 1979, place July did take on ing charges. on all for court *4 date, appellee 18, 1979, the first trial September
On a defense wit- in order to locate a continuance requested continued to October trial was granted and ness. This was to date, again continued trial was this latter 1979. On oral undergoing 1979; complainant the December Recognizing appear. to and was unable surgеry original estimated the beyond extended 11th date December he as to whether appellee run-date, questioned court the willing his under rights waive Rule 1100. Appellee to do agreed signed so and a boiler-plate written form to memorialize the waiver. 11, 1979,
On December the complainant arrived late for court. He therefore, was not day; available earlier that trial was continued for a third following day time. On the filed a petition for extension under Rule 1100(c), that alleging fifty-four days from were excludable the one-hundred-and-eighty-day period filing between the complaint trial, and commencement of and that it had exercised due in promptly prosecuting appellee. The lower court hearing conducted a on this for an petition extension on January 1980. Oddly enough, appellee did not file an answer and accompanying motion to dismiss response petition 18, 1980, to that until January four following hearing. In extending the run-date to Janu- 28, 1980, ary agreed the court that fifty-four days were exсludable. Trial was scheduled for and did commence on 30, 1980, days beyond two run- recomputed date. The court believed that 30th earliest available date for trial despite Commonwealth’s exercise of due diligence. primary Commonwealth’s contention on appeal
that appellee right waived his trial. speedy respect With argument, 1) to this waiver the Commonwealth contends that did not his Rule 1100 appellee pursue rights any at 2) time during pre-trial stage; that raised no objection petition at the on the for an extension re-computed while the lower court the run-date as January 28, 1980; 3) that appellee insufficiently raised a brief and dil- general objection lower court’s of due 4) igence hearing; appellee’s at that answer and dismiss, motion to to the run- containing specific objections allegation date extension and the Commonwealth’s of due not filed four the Rule diligence, days following were until hearing. alleg- 1100 extension The Commonwealth further es due diligence throughout proceed- exercised *5 therefore, in ings; delays trial not any instituting were preparation. attributed to its opinion
As are of the we aware that the Commonwealth continuously attempting bring exercised due in trial, necessary not to address whether appellee waived his Rule 1100 The order is there- rights. reversed, judgment fore of sentence is reinstituted and the matter remanded for resentencing. 1100(a)(2)
Although requires Rule the commencement following of trial no later than one hundred and eighty days filing dаte of the written criminal certain complaint, can be excluded from this so that trial days period may occur one from actually beyond eighty days hundred and 1100(d) filing proviso date. This is set forth in Rule as follows:
(d) determining trial, In of period commencement there shall be excluded therefrom: (1) the of period filing time between the of the written arrest;
complaint provided and the defendant’s apprehended defendant could not his be because where- abouts were unknown and could not determinеd by be due diligence;
(2) of any period expressly time for which the defendant 1100;
waives Rule (3) period stage such of at delay any proceedings
as results from:
(i) the of the defendant or unavailability attorney; his (ii) any granted continuance at the request of defend- ant or his attorney. granted
The first trial continuance was at appellee’s request. purpose giving appellee For the of an opportunity witness, to locate a defense trial was continued from its original September date of 1979 tо October 1100(d), present wording Under the of Rule the entire September from 18th to forty-one day period October 29th would be excludable from the run-date calculation. How- ever, properly the lower court excluded eleven only 1100(d)(2), Rule
due to the fact that as it existed at the time provided the lower court for the proceedings, exclusion from any period resulting “any continuance excess of days granted request at the of the defendant or his *6 provided that attorney, only period beyond day 30th shall be excluded.” The exclusion eleven-day moved 16, run-date to December 1979.
The lower court excluded an additional forty-three from the period for commencement of trial as a result appellee’s signing of a of Rule rights written waiver 1100 29, pre on October 1979. This waiver contained standard printed language provided spaces blank for the original run-date, continuance, reasons for the and extended date Although for trial. the form was executed his by appellee, counsel, prosecutor presiding and the none judge, of blank spaces completed. Apparently, the lower court defect; instead, did not consider that a critical the court colloquy looked to the conducted at the time the waiver was signed to determine whether the waiver intelligently, knowingly voluntarily made. With the addition of forty-three 28, these the run-date became days, January agree appellee We with of this validity not, however, written waiver is in question. We need satisfied, addrеss this given issue. We are the December run-date, 16th presented timely Commonwealth petition attempted diligence extend and with due to bring prior 30, to trial to the actual trial date of 1980.1
In reviewing
properly
whether a lower court
ruled
that the Commonwealth has or has not met its
burden
proving
diligence
due
in a Rule 1100
hearing,
extension
we
Contrary
Pennsylvania
appellee’s position,
Supreme
Court
Ehredt,
191,
decisions in Commonwealth v.
485 Pa.
Here, the Rule 1100 extension hearing on 1980 did not fact, consume more than In five minutes. no testimony presented; only court, the statements of the defense counsel and prosecutor appear of Never- record. theless, evidence of due was elicited as the court *7 read notatiоns so, 1) from the record. In doing noted a continuance of the hearing 13, from preliminary June 13, to July 1979 due to the complainant’s hospital confine- ment; 2) the request defense for a trial continuance from September 18, 29, 1979; 3) 1979 to October a second trial 29, continuance from 11, October to 1979 December 1979 as a result of the complainant’s 4) oral surgery; and the trial continuance from December 1979 to January due to complainant’s the late arrival in court. These court notations were nоt challenged by appellee.
In
Bright,
Commonwealth v.
this
supra,
Court was
similarly confronted
reviewing
with
an extension hearing
where the defendant offered no evidence and the Common-
wealth simply offered notations of record made
by
earlier
the
upon
court
granting two continuances due to the una-
vailability of the complainant on one occasion and the ar-
resting officer on
In
categorical fashion,
another.
near
the
Bright
upheld
court
sufficiency
the
of court notations in
lieu of testimonial or other evidence to demonstrate the
Commonwealth’s exercise of due diligence. See also Com-
Gibson,
monwealth v.
248 Pa.Super.
tions were reviewed at the extension hearing judge respited in a of hearing. listings Each of continuance Harris court, similarly in again, trial date. Once fashion, in terse of a court recognized propriety court records in due using determining diligence. disposition
It enhances our of the instant matter to and Harris accorded Bright consider the treatment which following recognition other issues their of sufficiency Bright, example, court notations. For the first continu granted vacationing complain ance was accommodate vacation, ing arresting witness’. When the officer went on granted. a second continuance It was of no conse Bright quence unavailability court that a witness’ reasons____” “vacation, of other was the result illness оr long unavailability through So as the witness’ no fault Commonwealth, of due diligence is warranted Here, and an extension of trial is trial contin- proper. complainant undergoing surgery ued when the oral surgery when he was late for trial. Insofar as the again not due to the failure tardiness were Commonwealth’s trial, no subpoena notify complainant or there was Furthermore, diligence. evidence of lack of due there was or no evidence that the Commonwealth knew had reason to *8 complainant would be unavailable on those know two trial dates. Bright, Harris
Also, in
no evidence
sub
Instead,
hearing.
mitted
the defendant at the extension
quite generally
the defendant asserted
Common
Here,
diligence.
upon
wealth did not
due
demonstrate
31,
pronouncement
court’s
date,
extension
counsel retorted: “I
appellee’s
object
3,
14,
N.T.
finding
diligence.”
p.
of due
This too
to nothing
amounts
more
objec-
than an innocuous
tion to the court’s reliance on notations of record.
It is
evident, thеn, that where due
is founded
upon
record,
uncontroverted matters of
appellate review will
result
affirmance.
Kite,
Commonwealth v.
321 Pa.Su-
per.
(1983).
In Commonwealth to exercised due have dil- igence, we note the Pennsylvania Supreme policy Court’s consideration in Genovese, Commonwealth v. 493 Pa. (1981):
In determining whether an
right
accused’s
to a speedy
violated,
trial has been
given
consideration must be
society’s right to
prosecution
cases,
effective
of criminal
both to restrain thоse guilty of crimes and to deter those
contemplating it.
Johnson,
Commonwealth v.
487 Pa.
409 A.2d
note 4
The administrative
mandate of Rule 1100 certainly
designed
was not
insulate the criminally
good
prosecu-
accused from
faith
delayed
tion
through no fault of the Commonwealth.
Genovese,
SPAETH, Judge, President files a concurring opinion. SPAETH, Judge, concurring: President I do not agree with the majority’s conclusion that the Commonwealth’s extension petition properly granted. In my prove view Commonwealth failed to that it was However, entitled to an extension. I believe that has the insufficiency proof. waived of the Commonwealth’s I argument also find no merit in appellee’s that his counsel ineffective. therefore concur in the order. majority’s -1- states majority upon application for extension of date, the Rule 1100 run prove Commonwealth need not that the scheduled trial date is the earliest date available
438
sought
delay.
unless the extension is
on the basis of judicial
434
is contrary
At
n. 1. This statement
to
under
my
standing
requirements
Although
of the
of Rule
Com
(1976),
Pa.
Id., 221-222, Pa. at A.2d at 1349-1350. 364 prove its due always Thus the Commonwealth must both earliest that the trial scheduled for the does date the court’s The proviso consistent with business. date but instead adds to requirement not limit the earliest requirement requirement further that when meet judicial proof claims its must delay, certain This has been interpretation applied standards. practice, Donaldson, see Commonwealth v. 334 Pa.Super. —, (1984) (en banc); (1981), A.2d 1260 is Pa.Super. 510, Delpiano, 1100(c)(4). I find itself, included Pa.R.Crim.P. in Rule and note that the majority’s position, no for authority submit, It majority necessary, cites none. therefore did meet the earliest consider the Commonwealth whether requirement. date possible 11, 1979, the trial was continued on December
When trial majority 1980. The January date continued presided over opinion judge remarks that who 14, 1980, and an granted hearing extension on who 30th was the earliest extension, “believed trial____” no Not do I find only At 645. available date tran- in the extension judge such statement script,1 there is no evidence on the basis of which the judge could have made this statement. The Commonwealth did *10 not present any testimony to show that the assistant district attorney who was present on December asked for the possible date; earliest nor was there any testimony concern- ing scheduling procedures; nor was the judge asked to take judiсial notice of scheduling procedures or court backlog.
At the extension hearing, the judge recited the history of the case from the court file. There is a note on the form showing the history case that on December “Comm (the wit Fta” Commonwealth witness to failed appear) and that the case was continued to January there is a copy of a bench warrant issued on December 11 to the complaining witness, but there is no notation any- where that January was the possible earliest Nor date. is there any transcript of the December proceeding at transcript The entire is as follows: MS. appellee] WIDMAN: [counsel for We have an answer we will have objected to file. It’s not to. THE COURT: This is Lafty. Commonwealth versus complaint 6-13, date is 6-8-79. The run date is complainant 12-5-79. On hospital; 7-13, was in the days. no excludable On the defendant 7-27, was held for arraignment. Court. On there was a bail On 10-29, 9-18 to a defense continuance. The defense needed a wit- ness; 10-29, days. 11 excludable Commonwealth witness was ill. MS. FLEISHMAN: attorney] district [assistant Commonwealth wit- ill, ness was and defendant waived Rule 1100. Yes; THE COURT: we have a waiver in the file. (Waiver counsel) shown to THE days; COURT: That’s 43 excludable October to29 December 12-11, 11. On Commonwealth witness arrived late. A total of 54 days excludable added project to the run date of 12-5-79 would an amended run date of petition 1-28-80. The Commonwealth’s was timely filed on 12-12-79. I rule there was due on the part, Commonwealth’s and the extension date is 1-30-80. Honor, MS. FLEISHMAN: Your the trial date is 1-30. THE COURT: I’ll extend it to 1-31. object MS. WIDMAN: I diligence. of due Wоuld grant Your Honor us a Judge must be tried on this case? Wallace granted a must be tried. THE COURT: Must be tried. 2-3; N.T. at RR. 15a-16a. 1/14/80 transcript us,
This is not included in the record as transmitted to but it Reproduced is included in the Record filed the Commonwealth as appellant, appellee questioned accuracy. has not its granted, possible the continuance was it is not to
which so find that at that district proceeding attorney assistant for the earliest date trial. possible asked for failure at the exten- prove Given Commоnwealth’s possible that 30 was the earliest date sion trial, It follows that improper.2 extension was that timely was not tried. For if one assumes appellee correct, court’s extension calculation excludable run not appellee the amended date was until January tried -2- beyond I tried
Although appellee believe date, discharged, run not him for I Rule 1100 should order being tried any objection has waived believe the run beyond date. *11 occurred on may
The first instance of waiver
have
De
when,
assume,
11
and his counsel
may
appellee
cember
we
that trial
rescheduled
30—a date
January
heard
the
period.
Rule 1100
See Commonwealth v.
beyond
However,
Brown,
(1981).
497 Pa.
There is a of hear- of judge history It reveals that the recited the the ing.3 file, calculating from the the number of excluda- case court Appellee object he not days along. as went did ble a forty-three days that were excludable as judge’s 29, 1979, to from Decem- result of the continuance October 11, 1979, argue signed and did not that his waiver ber object period that was defective. Nor did covering forty-three days these eleven judge the added to when 29, 1979, agree appellee’s Rule 1100 waiver is of I that October but, majority, questionable validity, like the I need not address at this issue. 1, supra. See note
441 of excludable a as because defense continuance and then recalculated the date as being run 28. There no January objection he by appellee, should hold that cannot now challenge the of 28 propriety the amended run Clair, date. See Commonwealth v. 458 Pa. 326 A.2d (1974); Pa.Super. 361, Commonwealth v. Royer, (1978); Burton, 246 Pa. Super. A.2d hold,
Anticipating that this court might appellee points so to the fact that at start of hearing, the his counsel stated: havе an will “We answer we have to file. not objected It’s to.” N.T. 1/14/80 This at 2. answer was four days Appellee filed later. argues Common- charged waiver, wealth should the theory being be with since the Commonwealth did dispute not statement appellee’s late, counsel that an filed by answer would be answer, cannot now object to lateness of the and that considered, when answer is that appellee it shows did waiver, contest the validity October 29 demanded prove factual averments extension рetition, denied that Commonwealth witnesses unavailable, were moved for discharge. argument This no merit. purpose filing has an answer is to put the proof; Commonwealth to its of an purpose objection is bring point argument court. before the Neither of these purposes accomplished can be an answer filed the hearing, after the court rule on appellee’s could not motion for when discharge presented it was during never *12 hearing. the agreement Commonwealth’s that it would сhallenge filing not the late of an could only answer have meant not argue would the defendant had to petition consented the extension in the requested to extend, and that it its case. prove would therefore See 400, 473 374 A.2d Taylor, Pa. 1274 (1977) (failure to petition contest for extension results in merits); to right waiver contest extension on Common- Johnson, (1978) v. 261 A.2d 422 Pa.Super. wealth 396 (same). Here, discussed, as did under- Commonwealth prove case, by take to its reference to notations in the The time for apрellee’s signed file and waiver. court’s presented, it was proof to to that was when object not answer filed afterwards. by to the Commonwealth’s objection did make one
Appellee January the run date to After the amended proof. judge exten- for an petition he the Commonwealth’s granted 30, and then sion, January the extension date as setting statement, “I there rule January it to with changing N.T. part.” diligence was due on Commonwealth’s this first section of at 3. As I have stated 1/14/80 the Commonwealth I this was error because opinion, believe also that when only had not its due but prove to to the case continued on December Appel- date for trial. possible '30 was the earliest objected lee, however, objection only did not make that but believe, and that diligence, objection, of due to one delayed preliminary no merit. The had hospital; appel- in the complainant month because continuance to obtain day granted forty-one lee was existed, only 1100 as it then witnesses, and under Rule excludable; and automatically of those were eleven from the resulted granted the continuance on December these occurrences None of complaining witness’s absence. fault, part on the diligence, or lack of suggests any Commonwealth.
-3- case, considered, my on view There remains to be conten- extent his Rule 1100 that to the appellee’s argument waived, right represen- denied his he was tions have been on represented Appellee effective counsel. tation counsel, and this issue than trial counsel other appeal by so it is properly opportunity, raised at the earliest has been Dancer, 460 Pa. v. us. before See Commonwealth A.2d 435 393, 466 A.2d 502 Pa. Crowley,
In
stated that:
(1983),
Supreme
Court
to a Commonwealth
object
counsel fails
When defense
time,
discharge
will not
an extension of
we
petition for
*13
the defendant unless he has
his
deprived
been
underly-
ing right
speedy
to a
trial under either the Sixth Amend-
ment
to the United States Constitution or Artiсle
Section
the Pennsylvania
9 of
Constitution. See Barker
v.
407 U.S.
Wingo,
92 S.Ct.
Id., 404-405, 502 Pa. at A.2d at 1015. present case one which the noncompliance by the “could arguably have been In- remedied.” deed, it seems to me just the sort of case Supreme Court had in mind. For if appellee had made objections that I believe he could have made but has waived because make, he I did not have little very doubt that the Common- wealth could responded, have successfully by asking either the judge judicial to take of scheduling notice procedures or to permit offer testimony it to on procedures. those find, therefore, should that counsel was not ineffective. I concur in the majority’s reversing order the trial court’s order, reinstating conviction, imposi- remanding tion of sentence. A.2d Pennsylvania
COMMONWEALTH McCLEARY, Appellant. Ronald Superior Pennsylvania. Court of
Argued July Sept. Filed