Com. v. Baker

• Decision Date: 20 January 1999
• Citation: 555 Pa. 33,722 A.2d 1028
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Michael BAKER.
• Court: Pennsylvania Supreme Court

555 Pa. 33

722 A.2d 1028

COMMONWEALTH of Pennsylvania, Appellant, v. Michael BAKER.

Supreme Court of Pennsylvania.

Argued December 11, 1997.

Decided January 20, 1999.

Catherine Marshall, Hugh J. Burns, Jr., Philadelphia, for appellant.

John W. Packel, Michael Baker, Philadelphia, Jeffrey P. Shender, for appellee.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

ORDER

PER CURIAM:

Appeal dismissed as having been improvidently granted.

Justice CASTILLE files a dissenting statement in which Justice NEWMAN joins.

CASTILLE, Justice, dissenting.

The issue raised in this matter is whether the Superior Court erred by sua sponte dismissing the Commonwealth's appeal for failure to file a brief. I respectfully dissent from the majority's decision to dismiss this matter as improvidently granted because I believe that the Superior Court erroneously dismissed this matter where the circumstances indicate that the Commonwealth failed to file a brief because it never received a briefing schedule.

Here, appellee was convicted in the Philadelphia Municipal Court of possession with intent to deliver, and knowing and intentional possession of a controlled substance. Appellee was sentenced to six months incarceration. On August 21, 1995, appellee filed a timely notice of appeal requesting a trial de novo in the Court of Common Pleas. Pursuant to Pa. R.Crim.P. 6013(g), governing appeals from the Philadelphia Municipal Court, the ninety-day mechanical run date was November 20, 1995. At appellee's arraignment on September 29, 1995, the Commonwealth requested the earliest possible trial date and the matter was listed for trial on January 12, 1996, without objection from the defense.

On January 12, 1996, appellee filed a motion to dismiss under Pa.R.Crim.P. 1100, alleging that the Commonwealth failed to exercise due diligence in bringing his case to trial before the ninety day run date. At the hearing on the motion, the Commonwealth asserted that the delay was the result of an agreement between the Commonwealth and the Philadelphia Public Defender's Office, which prohibited the Commonwealth from assigning more than eight cases for trial in any one courtroom on any one day. The trial court granted appellee's motion, finding that the Commonwealth had failed to exercise due diligence in bringing appellee to trial. The trial court denied the Commonwealth's petition for reconsideration.

The Commonwealth filed a timely appeal. The Superior Court, sua sponte, issued a per curiam order dismissing the appeal, citing the Commonwealth's failure to file a brief. The Commonwealth then filed a motion for reconsideration of the dismissal order, and sought reinstatement of the appeal. The Commonwealth further requested the Superior Court establish a briefing schedule. The motion claimed that the reason the Commonwealth had failed to file a brief was because it never received a briefing schedule due to a breakdown in the processes of the court. The Superior Court denied this motion.

I believe that the Superior Court erroneously dismissed this matter sua sponte given the circumstances. Rule 2188 of the Pennsylvania Rules of Appellate Procedure states that when an appellant fails to timely file a brief, "an appellee may move for dismissal of the matter." (Emphasis added). Rule 2188 seems to require that an appellee initiate the dismissal of the matter. Here, appellee failed to initiate the process; rather, the Superior Court acted on its own accord.

Pa.R.A.P. 105 provides:

(a) Liberal Construction and Modification of Rules. These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable. In the interest of expediting decision, or for other good cause shown, an appellate court may, except as otherwise provided in Subdivision (b) of this rule, disregard the requirements or provisions of any of these rules in a

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