*1 connected closely are not so rights owner, Mellinger’s Mellinger Even if is indispensable party. an he would be does company the real estate owner, against a verdict cannot accept we rights. impair Mellinger’s a necessary is Mellinger determination lower court’s party. and indispensable deficiencies in the com- examine the other
We need not since opinion, discusses in its the lower court which plaint, with before us. We sympathize are not properly these issues since reviewing complaint difficulty court’s the lower of counsel. On without benefit Appellant by it was drawn of advisability wish to consider the remand, may Appellant are rights protected. that his counsel to assure retaining reasons, sustaining we reverse the order foregoing For the the case for further and remand objections the preliminary opinion. not in conflict with this proceedings Pennsylvania COMMONWEALTH PERRY, Appellant. Robert Pennsylvania. Superior Court March 1979. Submitted Filed March 1982. Appeal for Allowance of Denied June
Petition *2 Packel, Chief, John W. Assistant Appeals, Public Defend- er, for Philadelphia, appellant. Henson,
Eric B. Assistant District Attorney, Philadelphia, Commonwealth, appellee. CERCONE, J., Before P. and HOFFMAN, WATKINS and JJ.
WATKINS, Judge: from the of Com- ease comes to us on Court appeal
This involves defendant’s and Philadelphia County, mon Pleas him should have been dis- charges against that the claim failed to demonstrate missed because the defendant to trial at diligence” bringing “due to extend the held on the Commonwealth’s for trial. time charged was arrested and with burglary
The defendant of crime on 1977. He July and instruments possessing 10, 1977 after a of said crimes on February was convicted He then took this appeal. trial. non-jury to Rule run date of 180 days pursuant The mechanical Procedure was January 1100of the Pa.Rules of Criminal the time for trial Sunday Because that date fell *3 23, 1978. Rule 1100 January extended to Monday, was 26, 1977the case was listed Crim.Pro. On October Pa.Rules failed to on time for the appear for trial. The defendant 23, was On 1978 the passed. January trial and the case Petition for an Extension of filed a timely in to the defendant to trial. The defend- bring Time which and filed a motion to dismiss the ant answered said A was held thereon on charges. hearing February after which the court an extension of time to the granted 10, commenced on February Commonwealth. Trial after defendant’s arrest. day which was the 199th The court below found that the Commonwealth had exer- in to the defendant to diligence attempting bring cised due on proceed trial. The Commonwealth was ready 14, 1977,November 1977and December October reached on of those dates. The any but the case was not the defendant’s tardiness in appearing court also found that 26,1977 resulted in a 22 which day delay for trial on October Deducting the defendant. the 22 day is attributable to defendant from the 199 the by days brings caused the delay Thus, if the within the 180 limit. even day the Rule diligence” failed to “due at prove within the appropriate the defendant was tried time if the 22 was from period days properly deducted the “run time”.
The defendant was late on October
1977 because he
However,
had been detained at a district hearing.
the case
17,1977.
was then re-listed
trial on
November
the
“unavailability”
defendant’s
on October
1977 resulted in
delay.
the
The
of
unavailability
the defendant excludes the
occasioned
from
delay
thereby
the
of the rule.
running
Millhouse,
470 Pa.
Since court below correctly attributed the 22 day delay to the defendant and because the case was tried on the 199th hold day, we that the court below did not err in dismissing the defendant’s to petition dismiss the charges.
Judgment of sentence affirmed.
HOFFMAN, J., a opinion. files dissenting 1100(d)(1). 1. Pa.Rules Crim.Pro. dissenting:
HOFFMAN, Judge, court erred in granting the lower that contends Appellant pursuant for extension of time petition the Commonwealth’s and, would accordingly, I 1100(c). agree Pa.R.Crim.P. to dis- appellant and order of sentence the judgment reverse charged. filed a criminal 1977, the Commonwealth 26,
On July him with burglary charging against appellant, complaint to pursuant of crime. instruments possessing and com trial should have 1100(a)(2), appellant’s Pa.R.Crim.P. on 23,1978.1 listing At a scheduled trial January menced by and a bench 1977, appear, failed to 26, appellant October when warrant was withdrawn The warrant was issued. was Appellant’s later that day. appellant appeared 7, The case was not 1977. for November then relisted 14, continued until December and was reached on that date reached, and date, case was again 1977. On filed the Commonwealth January subsequently, to Pa.R.Crim.P. pursuant of time for extension petition a that it alleged In its 1100(c). petition, sched previously on the three prepared proceed had been alleged the Commonwealth Additionally, uled trial dates. will be the Commonwealth diligence, due “[djespite original before the run date.” the [appellant] unable try answer to the Com filed both an appellant Subsequently, he denied the material aver in which petition, monwealth’s charges dismissal of the ments, pursuant and a the extension on Febru 1100(f). At to Pa.R.Crim.P. no evidence 3, 1978, presented the Commonwealth ary noted the hearing judge merely The petition. of its support and December of October November continuances of due dili concluded, support finding “That would a and Commonwealth, having the Petition on the of the gence part an extension hearing judge granted filed.” The been timely January computing period, the 180th 1. In the Rule 1100 Jones, Sunday. day, v. is omitted because it was 211, 214, (1977); (1979); Thomas, § Pa.C.S. *5 364
until February 1978. Appellant’s nonjury com- menced on February 1978, and he was convicted on the above-stated charges. denial Following of post-verdict mo- tions and imposition sentence, appellant took this appeal.
Rule 1100(a)(2)requires the Commonwealth to commence trial within 180 days of the filing of the complaint unless any period of delay beyond 180 days is excludable pursuant 1100(d) Rule or the run date is properly extended by court order pursuant to Rule 1100(c). The Commonwealth argues, and the agrees, that majority even if the extension in this case were improperly granted, appellant was tried within the Rule 1100period because it is entitled to exclude twenty- two Rule days. 1100(d)(1)states in part: “In determining the period for trial, commencement of there shall be exclud able therefrom such period delay at any of the stage proceedings as results from: ... the unavailability of the defendant . ...”2 The Commonwealth argues that al though appellant was unavailable part of the on day 26, 1977, October his failure to appear at the scheduled trial listing that date caused his trial to be until delayed November asserts, Commonwealth that twen ty-two day period should be excluded under Rule 1100(d)(1) because that delay from” appellant’s unavailabili “resulted] ty-
In Commonwealth v. Morgan, 484 Pa. (1979),our Supreme Court rejected the contention which the case, raises here. In that the defendant did not appear on the date, scheduled trial and the trial was rescheduled to a date forty-nine days later. The Common- wealth sought to exclude under Rule 1100(d)(1)the entire forty-nine day period on the ground that defendant’s una- vailability on the scheduled trial date prevented the com- mencement of trial within the Rule 1100 period. In reject- 2. The Commonwealth proving by has the preponderance burden of of the evidence that it is 1100(d). entitled to an exclusion under Rule Mitchell, 553, 564, v. 372 A.2d (1977); Williams, (1981); Clark, *6 the ing argument, Commonwealth’s the Supreme Court not calendar, ed that the court not defendant’s unavailability, had the Commonwealth prevented from defend scheduling ant’s trial within the Rule 1100 period. Because the Court had held that previously scheduling difficulties do not pro vide a basis for an exclusion under Rule 1100(d)(1),Common Shelton, 8, wealth v. 469 Pa. 364 (1976), A.2d 694 Commonwealth was not entitled to exclude the forty-nine As an day period.3 decision, alternative for ground its Court held finding that “a of unavailability causing delay requires the Commonwealth to exercise due diligence avoidance of that 484 delay,” 127, 976, Pa. at 398 A.2d at which the Commonwealth had failed to do.4 See also Com Cohen, 349, 356, monwealth v. 481 Pa. 1331 (1978) (“[A] defendant bail who fails to at a appear court proceeding, of which he has been notified, properly is una vailable from the time of that proceeding until he is subse or until quently apprehended he voluntarily surrenders him self.”).
I conclude that the twenty-two day period from October
1977 to November
1977 is not excludable under Rule
If
1100(d)(1).
scheduling difficulties prevented appellant’s
trial from being
listed before November
is
delay not
excludable under Rule 1100(d)(1).
event,
In
I note
any
the record contains no explanation for the
in resched-
delay
uling appellant’s trial.
It therefore cannot be said that the
due diligence in the avoidance
“exercise[d]
of that delay.” Commonwealth v. Morgan, supra,
4. The Court stated that
due
“[t]he
involved in this case
obligation
refers
to [the
to make an effort
Commonwealth’s]
quickly
Id.,
permit.”
the trial as
reschedule
as the circumstances
n.5,
Pa. at
I conclude that the Commonwealth failed to establish that
it exercised due
in
to
diligencé
attempting
bring
to
appellant
trial within
1100
above,
the Rule
As stated
period.
the
Commonwealth in its extension petition
cited the
merely
three occasions on which the case had not been tried and
that
it had exercised
alleged
due
At
diligence.
the “hear-
ing” on the
the
petition,
no evi-
presented
dence, and the hearing judge
based his
apparently
finding of
diligence
due
solely upon his review of the docket entry
notes. This record falls far short of
the
satisfying
Common-
wealth’s burden of
its due
proving
diligence
aby preponder-
ance of the evidence. The record
does not “show
certainly
the causes of the court
and the
delay
reasons
the
why
cannot be avoided.” Commonwealth v.
469
Mayfield, supra,
Pa. at