Commonwealth v. Lewis

PRICE, Judge,

dissenting:

I dissent. On March 10, 1975, a criminal complaint was filed against the appellant, charging him with burglary. 1 On September 30, 1975, 2 the appellant was convicted of this charge by a jury. The appellant now claims that his right to a speedy trial was denied in that he was not brought to trial within 180 days from the date the criminal complaint was *55 filed against him, as required by Pa.R.Crim.P. 1100(a)(2). 3 After reviewing the record, I agree with this contention, and would therefore reverse the judgment of sentence and discharge the appellant.

The record shows that the appellant obtained a continuance of his preliminary hearing, scheduled for March 19, 1975, because he desired to submit to a polygraph examination. The polygraph examination was administered on April 15, 1975, and the results of the examination became available on April 23,1975. A preliminary hearing was eventually held on June 18, 1975.

On August 1, 1975, the Commonwealth applied to the court below for an extension of time for commencement of trial pursuant to Pa.R.Crim.P. 1100(c). 4 The Commonwealth predicated its petition for an extension of time upon a claim that trial could not be commenced by September 8,1975, the 180th day, 5 because of the delay caused by the appellant’s request for a polygraph examination. On September 29, 1975, the court below granted the Commonwealth’s petition, concluding that the appellant’s request for a continuance was the sole cause of his trial being delayed until twenty three days after the expiration of the prescribed period. The majority affirms the order of the lower court, agreeing *56 that the Commonwealth exercised due diligence in seeking to bring the appellant to trial and that the appellant was solely responsible for the delay present in this case. I do not believe that such a holding can be substantiated in either law or fact.

In affirming the lower court, the majority charges the appellant with the entire period of delay from March 19, 1975, when the appellant’s preliminary hearing was initially scheduled, to September 29, 1975, when the appellant’s trial commenced. Such a finding clearly ignores previous holdings of this court defining the scope of protection guaranteed an accused under Rule 1100.

I fail to understand how the Commonwealth can be credited with exercising due diligence in bringing the appellant to trial in view of the delay which occurred during the fifty-six day period from April 23, 1975, when the polygraph results arrived, to June 18, 1975, when the appellant’s preliminary hearing was conducted. The Commonwealth fails to explain why the preliminary hearing was not held at an earlier date. Certainly, the appellant had no duty to arrange a preliminary hearing. We recently addressed this issue in Commonwealth v. Adams, 237 Pa.Super. 452 , 352 A.2d 97 (1975), stating that:

“In refusing appellant’s petition to dismiss the charges, the lower court stated that the appellant’s counsel had the duty to arrange for a preliminary hearing. This position is untenable. Rule 1100 mandates that it is the Commonwealth’s obligation to commence a trial no later than the prescribed time from the filing of a written complaint, unless excused upon a showing of due diligence. Rule 1100 is thereby consistent with prior case law which holds that it is the duty of the State to bring a defendant to trial. E. g., Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972); Commonwealth v. Cardonick, 448 Pa. 322 , 292 A.2d 402 (1972). These cases recognize that the strategy of defense often calls for delay and that the right to a speedy trial is not to be honored only for the vigilant and the knowledgeable. See Barker v. Wingo, *57 supra; Hodges v. United States, 408 F.2d 543 (8th Cir. 1969).” Id. 237 Pa.Super. at 456 , 352 A.2d at 99 .

The majority excuses the inaction of Commonwealth on the same grounds as the lower court, which explained that:

“The results of the polygraph examination were not available until it was too late to submit the case to the grand jury at the May Term (the grand jury convened April 21, 1975, and was discharged April 24, 1975). The case, however, was tried at the earliest possible date thereafter at the September Term.”

We recently confronted a situation greatly similar to the case at bar in Commonwealth v. Coleman, 241 Pa.Super. 450 , 361 A.2d 870 (1976). In Coleman , defense counsel requested and was granted a continuance on the day on which trial was scheduled. The appellant could not be tried until thirty days after the expiration of the prescribed period because of the practice of the Court Administrator of Montgomery County to schedule continued cases for the second session subsequent to the grant of the continuance. The lower court denied the appellant’s petition to dismiss the charges, holding that the prescribed period had expired solely because of the continuance requested by the appellant. We reversed the lower court, declaring that:

“It was the duty of the Court Administrator of Montgomery County, under the supervision of the Board of Judges, to schedule appellant’s trial within the period prescribed by Rule 1100. If the trial could not be scheduled within the period because of the manner in which Montgomery County provides sessions for criminal trials, it was incumbent upon Montgomery County to change its procedure. To hold otherwise would emasculate the Rule.” Commonwealth v. Coleman, supra, 241 Pa.Super. at 454 , 361 A.2d at 872 .

I believe that the principles enunciated in Coleman are equally applicable to the case at bar. I would therefore reverse the judgment of sentence and discharge the appellant.

CERCONE, J., joins in this dissenting opinion.

. 18 Pa.C.S. § 3502.

. Trial commenced on September 29, 1975.

. Pa.R.Crim.P. 1100(a)(2) provides that: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”

. Pa.R.Crim.P. 1100(c) provides in pertinent part:

“At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.

. . Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.”

. Time computations are calculated in compliance with 1 Pa.C.S. § 1908, which prescribes the exclusion of the first day, and inclusion of the last day, of the applicable period. Under 1 Pa.C.S. § 1908, if the last day of the period shall fall on a Saturday, Sunday, or legal holiday, then such day(s) shall be omitted from the computation. Here, the 180th day falls numerically on September 6, 1975. However, the 180th day for the purposes of Rule 1100 becomes September 8, 1975, because September 6, 1975, happens to be a Saturday.