Commonwealth v. Jackson ( 1984 )

McEWEN, Judge,

concurring:

The excellent expression of the majority view reflects a quite careful analysis of the issue and I agree that the record in the instant case fails to reflect compliance with Rule 1100. I write simply to observe that, in my view, the Supreme Court in Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984), declared that the Rule 1100(c)(4) requirement that any scheduled trial date after the expiration of 180 days need be “the earliest date possible” is met if the record reflects either (1) presentation by the prosecution of sufficient evidence to form the basis for a conclusion by the court that the scheduled date is the “earliest possible date”, or (2) a declaration by the hearing judge that such conclusion has been made as a matter of judicial notice.

In Terfinko, supra, the Supreme Court refused to find a violation of Rule 1100 even though, as in the instant case, the record did not expressly contain such a declaration or certification by the hearing judge. Rather, the Court utilized a “totality of the circumstances review” and found that the rescheduled date met the mandate of Rule 1100(c)(4) where the record amply established that the trial court “devoted a reasonable amount of its resources to the criminal docket and that it scheduled the criminal trial [for] the earliest possible date consistent with the court’s business.” ¹ Commonwealth v. Terfinko, supra, 504 Pa. at 392, 474 A.2d at 279.

The record here, however, is devoid of any evidence that would indicate that the extended trial date was the earliest date consistent with the business of the court. Nor does the record reflect a declaration to that effect by the hearing judge. Thus, neither method of compliance afforded by Terfinko, supra, has been achieved. It is for that reason that I join in the order vacating the judgment of sentence.

1 . Testimony was elicited in Terfinko both from the Lehigh County Deputy Court Administrator as well as from a member of the staff of the Clerk of Court. This testimony demonstrated the limited availability of judges and court rooms during the trial court sessions when appellant was scheduled for trial.