Commonwealth v. Lewis

WATKINS, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Chester County and involves the defendant-appellant’s appeal from his conviction for robbery, theft by unlawful taking, theft by receiving stolen property, and criminal conspiracy.

A criminal complaint charging the defendant with various offenses was filed against him on January 13, 1977. The offenses had been committed on January 12,1977. Time for commencement of trial pursuant to Pa. Rule of Criminal Procedure 1100 expired on July 12, 1977. Defendant’s case was scheduled for trial on May 16, 1977. When defendant’s case was called it was passed at the request of the Commonwealth because the Commonwealth desired to try the defendant at the same time as a co-defendant whose attorney was unavailable for trial at that date. Although the Commonwealth moved for a continuance of the case its request was denied by the lower court and the court directed the Court Administrator to call the case for trial as soon as counsel for both defendants were available. The Court Administrator, who the court below acknowledged worked for and was supervised by the court and not the district attorney’s office, failed to call the case again during the May Term, even though counsel for both defendants and the Commonwealth were prepared to proceed.

The case was then listed for the June, 1977 Criminal Term as case Number 61. It was not reached during that trial term by the court and was re-scheduled for the August Term which would be outside the 180 day period which was to expire on July 12, 1977.

On July 7,1977 the Commonwealth filed a timely petition seeking to extend the time in which to bring the defendant to trial. A hearing thereon was held on August 23, 1977 after which the court granted the Commonwealth’s petition and denied the defendant’s motion to dismiss the charges for failure to comply with Rule 1100. The defendant was then tried and on August 25, 1977 was found guilty of robbery, theft and receiving stolen property. He then appealed raising, inter alia, the question as to whether the court below committed reversible error when it granted the Commonwealth’s petition to extend the time in which to bring the defendant to trial.

Because the Commonwealth’s petition to extend the time in which to bring the defendant to trial was timely the only question on this appeal is whether the Commonwealth had failed to exercise “due diligence” in its attempt to bring the defendant to trial. Pa. Rule Criminal Procedure 1100(c). Under the facts of the instant case it is apparent that the Commonwealth was prepared to try the defendant at both the May and June Sessions of the 1977 court schedule. Either one of these times would have been within the 180 day period. The reason the case was not tried in the May, 1977 session of court was because of the failure of the Court Administrator to recall defendant’s case after it had been passed at the Commonwealth’s request so that the defendant could be tried with a co-defendant. The lower court denied the Commonwealth’s motions for a continuance and had directed the Court Administrator to recall the case. The defendant’s case was not tried in June of 1977 because the court never reached it. The court below explained in its opinion that the district attorney’s office of Chester County has no control over the case list.

Judicial delay or scheduling may justify an extension of time within which to commence trial. The calendaring of cases is ultimately within the power and responsibility of the trial court. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976).

Because the court administrator is under the direction of the court and because the court is not a prosecutorial arm of the district attorney’s office but is an impartial entity established to administer justice evenhandedly we hold that in the instant case the court administrator’s failure to recall the defendant’s case cannot be attributed to the Commonwealth but must be attributed to the court. Likewise the court’s failure to reach the defendant’s case during the ensuing term of court cannot be attributed to any lack of due diligence on the part of the Commonwealth. Because the Commonwealth was indeed prepared to proceed to trial during both the May and June, 1977 court sessions and because the scheduling of defendant’s case was entirely within the control of the court, we hold that the Commonwealth cannot be found to have failed to exercise “due diligence” in proceeding to trial. Thus, the court below did not err in granting the Commonwealth’s timely petition. The other issues raised by the defendant are devoid of merit.

Judgment of sentence affirmed.

PRICE, J., files a dissenting opinion.