Com. v. Cohen

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore EAGEN; NIX; MANDERINO; LARSEN
Citation392 A.2d 1327,481 Pa. 349
Decision Date05 October 1978
PartiesCOMMONWEALTH of Pennsylvania v. Allen COHEN and George Holmes, Appellees.

Page 1327

392 A.2d 1327
481 Pa. 349
COMMONWEALTH of Pennsylvania
v.
Allen COHEN and George Holmes, Appellees.
Supreme Court of Pennsylvania.
Argued April 14, 1978.
Decided Oct. 5, 1978.

Page 1328

[481 Pa. 351] Kenneth G. Biehn, Dist. Atty., Stephen B. Harris, First Asst. Dist. Atty., Doylestown, for appellant.

Robert T. Burke, Bristol, for appellee, Allen Cohen.

Michael A. Klimpl, Richard S. Wasserbly, Asst. Public Defenders, Doylestown, for appellee, George Holmes.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX and LARSEN, JJ.

OPINION OF THE COURT

NIX, Justice.

This is an appeal by the Commonwealth from a Superior Court order affirming per

Page 1329

curiam the dismissal of the charges lodged against appellees under Pa.R.Crim.P. 1100. On April 1, 1975, criminal complaints were filed against George Holmes and Allen Cohen charging them with impersonating a public servant, conspiracy and harassment. After several continuances a preliminary hearing was held on May 21, 1975 and appellees were held for action of the grand [481 Pa. 352] jury. On June 26, 1975 appellees were indicted by the grand jury. On that same day appellees failed to appear for arraignment and a bench warrant was issued by the court for the arrest of appellees as authorized by Pa.R.Crim.P. 4016(A)(2). On July 16, 1975 appellees appeared in court, were purged of the contempt, arraigned and released pending trial. 1 There were several continuances thereafter at the request of appellees and the Commonwealth for various reasons. On October 10, 1975 the Commonwealth filed a Petition for Extension of Time under section (c) of Rule 1100. This petition was filed 192 days after the filing of the complaints. The trial court ruled that the Petition for Extension of Time was not filed within 180 days and was therefore not timely and for that reason denied it and dismissed the charges against appellees.

Section (c) of Rule 1100 permits the attorney for the Commonwealth to apply to the court for an order extending the time for commencement of trial provided that the application is made prior to the extension of the period in which trial is required to begin. 2 We have interpreted this section as requiring the application to be filed within the statutory period, which in this case was 180 days, excluding only those periods allowed under section (d) of the Rule. 3 Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

[481 Pa. 353] "The Commonwealth may not seek an extension pursuant to section (c) of the Rule nunc pro tunc, that is, the application for an extension Must be filed prior to the expiration of the mandatory period set forth in the Rule or set forth in a previous order granting an extension. Commonwealth v. O'Shea, supra (465 Pa.) at 498, 350 A.2d (872) at 875 n. 9; Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). Whether or not an application for an extension is timely filed is determined by computing the amount of time which has lapsed from the filing of the complaint to the date on which the Commonwealth files its application, less any periods which are properly excludable pursuant to section (d) of the Rule. If the time so computed exceeds the mandatory period of the Rule or, in cases where an extension or extensions have been properly granted, exceeds the mandatory period set forth in the order granting the last extension, then the application is untimely." Commonwealth v. Shelton, supra, at 15, 364 A.2d at 697-98.

In assessing the finding of the trial court and the Superior Court that the Petition for Extension was untimely, we must determine whether the 20 day period from the time the bench warrant was issued until the appellees appeared and were purged of their contempt was excludable under section (d)(1). The trial court reasoned:

"Rule 1100...

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34 practice notes
  • Commonwealth v. Smith, No. 2 EAP 2019
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 21, 2020
    ..."[a]n accused, unaware that process has been issued against him, has no obligation to make himself available." Commonwealth v. Cohen , 481 Pa. 349, 392 A.2d 1327, 1330 (1978) ; cf. Rehaif , 139 S.Ct. at 2198 ("The defendant's status ... refers to a legal matter, but this legal matter is wha......
  • Com. v. Bond
    • United States
    • Superior Court of Pennsylvania
    • January 31, 1986
    ...Thus, in calculating the 180-day period, one does not include a period during which the accused was "unavailable," Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), or a period representing a continuance granted at the request of the accused, Commonwealth v. Robinson, 498 Pa. 379, 4......
  • Com. v. Colon
    • United States
    • Pennsylvania Superior Court
    • July 29, 1983
    ...and the Commonwealth is entitled to count any resulting period of delay as excludable time under Rule 1100(d)(1). Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978); Commonwealth Page 393 v. Bedsaul, 298 Pa.Super. 174, 444 A.2d 717 (1982). Furthermore, the delay is excludable even wit......
  • Com. v. Taylor
    • United States
    • Superior Court of Pennsylvania
    • March 8, 1985
    ...cases should apply with at least equal force to the instant case. A distinguished member of this line of cases is Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). We find its rationale extremely helpful in deciding the case before us and believe that the words of its author, Justic......
  • Request a trial to view additional results
34 cases
  • Commonwealth v. Smith, No. 2 EAP 2019
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 21, 2020
    ..."[a]n accused, unaware that process has been issued against him, has no obligation to make himself available." Commonwealth v. Cohen , 481 Pa. 349, 392 A.2d 1327, 1330 (1978) ; cf. Rehaif , 139 S.Ct. at 2198 ("The defendant's status ... refers to a legal matter, but this legal matter is wha......
  • Com. v. Bond
    • United States
    • Superior Court of Pennsylvania
    • January 31, 1986
    ...Thus, in calculating the 180-day period, one does not include a period during which the accused was "unavailable," Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), or a period representing a continuance granted at the request of the accused, Commonwealth v. Robinson, 498 Pa. 379, 4......
  • Com. v. Colon
    • United States
    • Pennsylvania Superior Court
    • July 29, 1983
    ...and the Commonwealth is entitled to count any resulting period of delay as excludable time under Rule 1100(d)(1). Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978); Commonwealth Page 393 v. Bedsaul, 298 Pa.Super. 174, 444 A.2d 717 (1982). Furthermore, the delay is excludable even wit......
  • Com. v. Taylor
    • United States
    • Superior Court of Pennsylvania
    • March 8, 1985
    ...cases should apply with at least equal force to the instant case. A distinguished member of this line of cases is Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). We find its rationale extremely helpful in deciding the case before us and believe that the words of its author, Justic......
  • Request a trial to view additional results

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