Commonwealth v. Lafty

¶1concurring:

¶2I do not agree with the majority’s conclusion that the Commonwealth’s extension petition was properly granted. In my view the Commonwealth failed to prove that it was entitled to an extension. However, I believe that appellee has waived the insufficiency of the Commonwealth’s proof. I also find no merit in appellee’s argument that his counsel was ineffective. I therefore concur in the majority’s order.

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¶4The majority states that upon application for extension of the Rule 1100 run date, the Commonwealth need not prove that the scheduled trial date is the earliest date available *438unless the extension is sought on the basis of judicial delay. At 434 n. 1. This statement is contrary to my understanding of the requirements of Rule 1100. Although Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), was a case of judicial delay, the rule it announced was a general rule, applicable to all cases:

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

¶5Id.,469 Pa. at 221-222, 364 A.2d at 1349-1350.

¶6Thus the Commonwealth must always prove both its due diligence and that the trial was scheduled for the earliest date consistent with the court’s business. The proviso does not limit the earliest date requirement but instead adds to that requirement the further requirement that when the Commonwealth claims judicial delay, its proof must meet certain standards. This interpretation has been applied in practice, see Commonwealth v. Donaldson, 334 Pa.Super. —, 483 A.2d 549 (1984) (en banc); Commonwealth v. Delpiano, 290 Pa.Super. 510, 434 A.2d 1260 (1981), and is included in Rule 1100 itself, Pa.R.Crim.P. 1100(c)(4). I find no authority for the majority’s position, and note that the majority cites none. It therefore is necessary, I submit, to consider whether the Commonwealth did meet the earliest possible date requirement.

¶7When trial was continued on December 11, 1979, the trial date was continued to January 30, 1980. The majority opinion remarks that the judge who presided over the extension hearing on January 14, 1980, and who granted an extension, “believed that January 30th was the earliest available date for trial____” At 645. Not only do I find no such statement by the judge in the extension hearing tran*439script,1 there is no evidence on the basis of which the judge could have made this statement. The Commonwealth did not present any testimony to show that the assistant district attorney who was present on December 11 asked for the earliest possible date; nor was there any testimony concerning scheduling procedures; nor was the judge asked to take judicial notice of scheduling procedures or court backlog.

¶8At 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 of the case that on December 11 “Comm wit Fta” (the Commonwealth witness failed to appear) and that the case was continued to January 30, and there is a copy of a bench warrant issued on December 11 to the complaining witness, but there is no notation anywhere that January 30 was the earliest possible date. Nor is there any transcript of the December 11 proceeding at *440which the continuance was granted, so it is not possible to find that at that proceeding the assistant district attorney asked for the earliest possible date for trial.

¶9Given the Commonwealth’s failure to prove at the extension hearing that January 30 was the earliest possible date for trial, the extension was improper.2 It follows that appellee was not timely tried. For if one assumes that the extension court’s calculation of excludable days was correct, the amended run date was January 28, and appellee was not tried until January 30.

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¶11Although I believe that appellee was tried beyond the Rule 1100 run date, I should not order him discharged, for I believe that appellee has waived any objection to being tried beyond the run date.

¶12The first instance of waiver may have occurred on December 11 when, we may assume, appellee and his counsel heard that trial was rescheduled for January 30 — a date beyond the Rule 1100 period. See Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981). However, since no transcript of the December 11 proceedings is in the record, waiver cannot be found because it is the Commonwealth’s burden to prove that appellee knowingly and voluntarily waived his Rule 1100 rights. See Commonwealth v. Donaldson, supra.

¶13There is a transcript of the January 14 extension hearing.3 It reveals that the judge recited the history of the case from the court file, calculating the number of excludable days as he went along. Appellee did not object to the judge’s finding that forty-three days were excludable as a result of the continuance from October 29, 1979, to December 11, 1979, and did not argue that his signed waiver covering that period was defective. Nor did appellee object when the judge added to these forty-three days eleven days *441as excludable because of a defense continuance and then recalculated the run date as January 28. There being no objection by appellee, I should hold that he cannot now challenge the propriety of the January 28 amended run date. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Royer, 256 Pa.Super. 361, 389 A.2d 1165 (1978); Commonwealth v. Burton, 246 Pa. Super. 498, 371 A.2d 946 (1977).

¶14Anticipating that this court might so hold, appellee points to the fact that at the start of the January 14 hearing, his counsel stated: “We have an answer we will have to file. It’s not objected to.” N.T. 1/14/80 at 2. This answer was filed four days later. Appellee argues that the Commonwealth should be charged with waiver, the theory being that since the Commonwealth did not dispute the statement by appellee’s counsel that an answer would be filed late, it cannot now object to the lateness of the answer, and that when the answer is considered, it shows that appellee did contest the validity of the October 29 waiver, demanded that the Commonwealth prove the factual averments in the extension petition, denied that Commonwealth witnesses were unavailable, and moved for discharge. This argument has no merit. The purpose of filing an answer is to put the Commonwealth to its proof; the purpose of an objection is to bring a point of argument before the court. Neither of these purposes can be accomplished by an answer filed after the hearing, and the court could not rule on appellee’s motion for discharge when it was never presented during the hearing. The Commonwealth’s agreement that it would not challenge the late filing of an answer could only have meant that it would not argue that the defendant had consented to the extension requested in the petition to extend, and that it would therefore prove its case. See Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977) (failure to contest petition for extension results in waiver of right to contest extension on merits); Commonwealth v. Johnson, 261 Pa.Super. 327, 396 A.2d 422 (1978) (same). Here, as discussed, the Commonwealth did undertake to prove its case, by reference to notations in the *442court’s file and appellee’s signed waiver. The time for appellee to object to that proof was when it was presented, not by answer filed afterwards.

¶15Appellee did make one objection to the Commonwealth’s proof. After the judge amended the run date to January 28, he granted the Commonwealth’s petition for an extension, setting the extension date as January 30, and then changing it to January 31, with the statement, “I rule there was due diligence on the Commonwealth’s part.” N.T. 1/14/80 at 3. As I have stated in the first section of this opinion, I believe this was error because the Commonwealth had to prove not only its due diligence but also that when the case was continued on December 11 to January 30, January '30 was the earliest possible date for trial. Appellee, however, did not make that objection but only objected to the finding of due diligence, and that objection, I believe, had no merit. The preliminary hearing was delayed one month because the complainant was in the hospital; appellee was granted a forty-one day continuance to obtain witnesses, and under Rule 1100 as it then existed, only eleven of those days were automatically excludable; and the continuance granted on December 11 resulted from the complaining witness’s absence. None of these occurrences suggests any fault, or lack of diligence, on the part of the Commonwealth.

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¶17There remains to be considered, on my view of the case, appellee’s argument that to the extent his Rule 1100 contentions have been waived, he was denied his right to representation by effective counsel. Appellee is represented on appeal by counsel other than trial counsel, and this issue has been raised at the earliest opportunity, so it is properly before us. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

¶18In Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983), the Supreme Court stated that:

When defense counsel fails to object to a Commonwealth petition for an extension of time, we will not discharge *443the defendant unless he has been deprived of his underlying right to a speedy trial under either the Sixth Amendment to the United States Constitution or Article 1, Section 9 of the Pennsylvania Constitution. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Such a failure to assert a basic constitutional right is likely to also involve an additional Sixth Amendment denial of the basic right to effective counsel. The present failure to assert a prophylactic rule when noncompliance with it could have arguably been remedied does not.

¶19Id.,502 Pa. at 404-405, 466 A.2d at 1015.

¶20The present case is one in which the noncompliance by the Commonwealth “could have arguably been remedied.” Indeed, it seems to me just the sort of case the Supreme Court had in mind. For if appellee had made the objections that I believe he could have made but has waived because he did not make, I have very little doubt that the Commonwealth could have successfully responded, either by asking the judge to take judicial notice of scheduling procedures or to permit it to offer testimony on those procedures. I should find, therefore, that counsel was not ineffective.

¶21I concur in the majority’s order reversing the trial court’s order, reinstating the conviction, and remanding for imposition of sentence.