*1 that from minds your I erase “Now, jury ask defendant polygraph he failed the that statement —the I test and polygraph that he failed the informed a as not being record that that be stricken direct answer.” responsive an can majority how conclude
I fail to see utterly trial when the defense counsel” answer was “elicited the ques- was unresponsive answer that the judge stated record, reason, ignores defies tion! Such conclusion I dissent. due law. process appellant and denied A.2d 782 Pennsylvania, Appellant, COMMONWEALTH C. Alton WADE. Pennsylvania.
Supreme Court 1977. Argued Dec. Decided *3 Dist. At- Asst. Dadamo, Goldberg, Elliott D. M.
Vincent appellant. for Lasensky, Berwyn, D. tys., Joan Andes, Defender, Asst. Merrick, J. Graham John R. Public Defender, for appellee. Public ROBERTS, POM- J., O’BRIEN, EAGEN, C.
Before MANDERINO, JJ. EROY, NIX and
OPINION OF THE COURT EAGEN, Chief Justice.
C. Alton Wade was convicted in Chester by jury County stolen receiving Post-verdict motions were denied goods. of sentence to the judgment imposed. Wade appealed which Superior Court reversed the of sentence judgment and ordered Wade We the Common- discharged. granted wealth’s petition for allowance of appeal. trial,
Prior to Wade filed an to dismiss the application the trial charges alleging had not commenced within the time under period permitted 1100, Pennsylva- nia Rules of Criminal Procedure. The motion was denied by the trial court. The Court Superior reversed Wade’s ruling motion to dismiss granted. should have been We affirm.
The criminal was filed complaint against Wade on October 3, 1973, Thus, and trial on 1974.1 September commenced three hundred forty-two (342) between the days lapsed of the filing complaint and commencement of trial.2 11, 1974, September despite 1. Wade contends trial commenced on Superior having September and trial court treated Court 1974, as the date on which trial commenced. We need not resolve dispute disposition, this because its resolution is immaterial to our accept position. even if we the Commonwealth’s Superior trial court and the determined trial did not forty-first day following commence until the three hundred and filing complaint. one-day We are unable to account for the variation. Our calculation is made in accordance with 1 Pa.C.S.A. day 1908 which mandates exclusion of § the first and inclusion of the last. Thus our calculation is as follows: — days October November *4 days 31 — January days 1974 31 days 28 days March 31 days 30 May days 31 days June July 30 days 31 August days 31 days September 10 Total 342 mandated instantly, 1100(a)(1), applicable Pa.R.Crim.P. seventy hundred two “no later than that commence trial filed.” complaint which the the date on was (270) days the two hundred “Thus, delay beyond all the of ‘ . . must be . mandatory period (270) day seventy Pa.R. period, the computation from the excluded [of either an granting an or order 1100(d)] justified Crim.P. rule, the terms of to the pursuant [Pa.R.Crim.P. extension ” to prevail.’ is if the Commonwealth 1100(c)], 14, 694, 697 8, 364 A.2d Shelton, 469 Pa. v. Commonwealth O’Shea, 491, Pa. v. from Commonwealth (1976) quoting 872, 874 496, (1976). A.2d Commonwealth an extension did not seek the
Since 1100, was to obliged to it (c) section pursuant seventy- establish a evidence by preponderance from the computa have been excluded two should (72) days (d). to section Com pursuant the permissible tion of time (1977). A.2d 826 Mitchell, 472 Pa. monwealth the Furthermore, court determined Common since the trial this burden, purposes we consider for the wealth met its so Commonwealth and the presented by the evidence appeal as, read in the defense fairly presented much evidence whole, uncontradict as a remains the of the record context the viewed, Mitchell, So supra. ed. Commonwealth v. the following: record establishes 4, 1973, arraigned Wade was preliminarily October On Wade arraignment, the justice. During before district Attor- that he intended to obtain justice advised the district The district justice Fred Cadmus him. ney represent waiver, 140, absent a to Wade that Pa.R.Crim.P. explained “not fixing preliminary hearing a date for a required date of less nor more than ten from the days” than three for not set a date justice But the district did arraignment. rather, the time explaining requirement after hearing; contact Wade to Cadmus he instructed contact Cadmus arrange representation have preliminary hearing, to fix district a date for justice time, when available. within a reasonable he [Cadmus] *5 The district justice did so because he was aware of “Cadmus’ busy schedule.” The Commonwealth agreed to “not hold to the ten day rule in order to give an to opportunity [Wade] get counsel.”
Wade, after released on being bail, nominal phoned Cad- mus’ office was and informed Cadmus was on vacation.3 A secretary told Wade she would phone the justice district then call him back. Subsequently, she phoned Wade and indicated “everything was okay.” justice district did not receive any communication from Cadmus or his office he so phoned Cadmus’ office some time between October 23 and 25. The district justice was informed that Wade had contacted Cadmus’ office and was to . . “supposed meet with . Cadmus.” 7, On November the district justice again contacted Cad- mus’ office he still had not heard from because Wade or Cadmus. He talked with Cadmus who said that not he had Wade, communicated with but that he “probably be would representing matter,” in the and that the district [Wade] justice should set a date for the hearing. The district justice then set December as the hearing date and had police officer serve Wade with notice of the hearing date.
The first direct communication between Wade and Cad- 25, mus on occurred November at which time Cadmus agreed to Wade. represent
On December requested Cadmus the hearing be contin- ued “into due to the January fact there were criminal [that] trials here court Mr. up tied in.” The [Cadmus]4 district justice then fixed January 1974 as the hearing date. Cadmus testified that he “was generally available” between 15 with January exception the week of December 3. England
3. Cadmus was in not did return until October 23. justice’s testimony 4. The district referred a call from “Wade’s being up office” and to “Mr. Wade” in” “tied criminal trials. He indicating subsequently referring corrected himself that he was Cadmus. because he another continuance later requested Cadmus and the hearing,” preliminary Hamm up “was tied 1. Another re- for was then scheduled hearing *6 made, but 1 was was beyond February for continuance quest held on hearing The was justice. the denied district by rather, not Cadmus did appear; but Cadmus even was though for Wade appear had another attorney “[i]t responsibility.” still [Cadmus’] Pleas on the Court of Common tried in Wade was
Finally, of 1974 and the charge during homicide an unrelated (10) days. ten trial lasted should that certain periods reasoned Court Superior Rule but even (d) to of section pursuant
be excluded untimely. the trial commenced with these exclusions 4 is between October relevant period The first fairly that the evidence read We believe and December 6.5 effect, to the district that, representation Wade’s shows counsel, as coupled to Cadmus that he wanted obtain justice of the mandates of with the district justice’s explanation the agree and with Commonwealth’s 140(f)(1) rule,” a to amounted to day ment “not to hold the ten (d) in perti Wade.6 Section by for a continuance request nent part provides: “ period . . . such . . . there shall be excluded as results from :
of at of the stage proceedings delay any period 4 to 6 one from October as 5. We must consider the by request delay entirety period in its on October of caused Wade’s justice because, though district on Novem- Cadmus advised the even date, hearing proceed did not communicate the Wade ber to set directly not obtain his until November 25 and did with Cadmus representation until then. out, requested pointed granting Superior As the of the the may improper indeed been because Pa.R.Crim.P. continuance have hearing 140(f)(1) setting a the the mandates the of date for timing opportunity to mandates of that section afford an accused an granting a obtain But we need not now rule that continu- counsel. because, doing improper if ance such even so under circumstances is (d) improper, not concern itself with section does requested, only propriety granting the of it concerns continuances requested itself with who the continuance. . (2) continuance in of any excess thirty (30) days granted at the of the , defendant . . request . pro- vided that only period beyond thirtieth (30th) day be shall so excluded.” [Emphasis added.] of
Instantly, “period delay” conducting preliminary hearing occurred and it “resulted] [a] continuance.” The period continuance, totalling six ty-three (63) “in days, is excess of thirty (30) and “was days” granted at the Thus, request” Wade. the Commonwealth was entitled to an However, exclusion. the number of days to be excluded is limited proviso (d)(2) section those which the continuance exceeds (30) thirty days. the Commonwealth was Accordingly, entitled to an exclu sion of (33) thirty-three pursuant to section (d)(2) Rule 1100 aas result of the granted continuance between October 4 and December 6.7
The next relevant are periods those between 6 15 and 15 January January 1. In both instances, Cadmus sought was granted continuances. these Accordingly, must periods be considered in of light section (d)(2) the rule.
The first of these or that periods between December 6 and January 15 was a period delay in conducting prelimi- the nary hearing resulting from a continuance requested Wade’s attorney. of the period continuance totaled (40) Thus, forty the days. Commonwealth was entitled to an exclusion of (10) ten or the days period the beyond thirtieth (30th) day.
The second or period that between 15 and January Febru- 1 was also a ary the period delay conducting prelimi- argues 7. The Commonwealth that Wade was “unavailable” between citing Millhouse, October and November 7 Commonwealth v. (1977). Millhouse, Pa. supra, A.2d 1273 In the accused appeared judicial proceeding at a scheduled without counsel. Be- considerations, cause of that and additional we determined Millhouse Instantly, appear unavailable. not Wade did at a scheduled judicial proceeding, preliminary counsel; hearing, rather, the without sought, prior scheduled, hearing being judicial he to the to have the proceeding Millhouse, supra, inap- continued. We therefore consider posite. requested by a continuance resulting hearing nary of the continuance was But, the period attorney. Wade’s the and thus Common- (30) thirty days,” excess of not “in of this as result to an exclusion was not entitled wealth continuance.8 (10) the ten contends that also
The Commonwealth on in trial engaged which Wade was during section should be excluded under charge, criminal unrelated so, However, this to be assuming even (d)(1) excluded would not equal seventy- total number of days to be excluded if the Com- number required (72), two in its the trial com- position is to prevail monwealth timely. menced affirmed.
Order J., concurring opinion. filed a ROBERTS, Justice, ROBERTS, concurring. in the join Opinion
I
in the result and
concur
Shields, 247
extent that it
Commonwealth
adopts
to the
as
(1977),
controlling authority
8. We have adhered independently if the both to determine Common- each continuance the amount of and to determine is entitled to an exclusion wealth analysis (d)(2). thus differs under section Our time to be excluded case, Superior by in this but is accord Court from that used Shields, Pa.Super. A.2d with Commonwealth subsequent by Superior (1977), to its decided which was instantly. dangers foreseen the dissenters decision Shields, if supra, it seeks can be avoided Commonwealth (c) pursuant to section extensions