Com. v. Eller

Citation232 Pa.Super. 99,332 A.2d 507
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Ronald ELLER, Appellee.
Decision Date11 December 1974
CourtSuperior Court of Pennsylvania

Page 507

332 A.2d 507
232 Pa.Super. 99
COMMONWEALTH of Pennsylvania, Appellant,
v.
Ronald ELLER, Appellee.
Superior Court of Pennsylvania.
Dec. 11, 1974.

Page 508

[232 Pa.Super. 100] Stephen B. Harris, First Asst. Dist. Atty., Doylestown, for appellant.

Paul Laskow, Asst. Public Defender, Doylestown, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge.

On August 27, 1973, a criminal complaint was filed against defendant-appellee. He was arrested and arraigned on September 22, 1973. October 17, 1973, had been set for hearing, but defendant did not appear and was declared a fugitive. On July 23, 1973, the Grand Jury returned an indictment of 'theft' against defendant, 1 who was re-arrested and arraigned on May 3, 1974. At this Arraignment, defendant's counsel moved to dismiss the indictment on grounds of violation of Pennsylvania Rule of Criminal Procedure 1100(a)(1), 19 PS. Appendix, which provides that 'trial in a court case . . . shall commence no later than two hundred seventy (270) [232 Pa.Super. 101] days from the date on which the complaint is filed.' 2 Violation was alleged because trial was set for May 28, 1974. Trial court granted the application to dismiss at trial on the latter date.

For purposes of this appeal, the Commonwealth urges upon us that the trial court erred in the computation of time for the running of the 270 day period, and that said error was grounded upon a misinterpretation of the effect of the Commonwealth's denial of one of defendant's statements in his Application to Dismiss the Indictment. The crucial dates for computation of the '270 days' are August 27, 1973, for its commencement, and May 28, 1974, the date of trial. This period is four (4) days in excess of two hundred seventy (270) days. The Commonwealth contends that the appellee was unavailable from July 23, 1973, to May 3, 1974, so that this period of time must be excluded from the running of the 270 day period. 3 Section (d)(1) of Rule 1100 specifically so provides. 4 If the time during which the appellee was not available is excluded from

Page 509

the computation, the 270 day period had not expired.

The Commonwealth impliedly admitted that the appellee had not caused more than 30 days delay. Paragraph 6 of appellee's pre-trial application to dismiss reads:

'6. There has been no delay or continuance in [232 Pa.Super. 102] excess of 30 days attributable to the defendant or his...

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11 cases
  • Commonwealth v. Benson
    • United States
    • Superior Court of Pennsylvania
    • 25 d5 Julho d5 1980
    ...... admission of well-pleaded facts unless an answer is ordered. by the court). Commonwealth v. Eller, 232 Pa.Super. 99, 332. A.2d 507 (1974), in which the Commonwealth admittedly did not. answer upon its mistaken determination that the averment ......
  • Com. v. Benson
    • United States
    • Superior Court of Pennsylvania
    • 25 d5 Julho d5 1980
    ...to answer will not constitute an admission of well-pleaded facts unless an answer is ordered by the court). Commonwealth v. Eller, 232 Pa.Super. 99, 332 A.2d 507 (1974), in which the Commonwealth admittedly did not answer upon its mistaken determination that the averment was a conclusion of......
  • Com. v. Pugh
    • United States
    • United States State Supreme Court of Pennsylvania
    • 2 d4 Março d4 1978
    ......20" justifying a disregard of Pa.R.Crim.P. 308(a)'s mandate, 4 and since there was nothing of record to show "good cause" for the late filing of the answers, the suppression court should have accepted as true all of the well-pleaded facts averred in Pugh's applications. 5 Commonwealth v. Eller,232 Pa.Super. 99, 332 A.2d 507 (1974).         The Commonwealth argues that, even if the suppression court erred in not following the mandate of Rule 308, supra, no prejudice resulted because all of the well-pleaded facts in the applications were eventually accepted as true in the court's ......
  • Com. v. Shelton
    • United States
    • Superior Court of Pennsylvania
    • 29 d1 Março d1 1976
    ...in its answer and is therefore precluded from claiming on this appeal that the appellant caused the delay. See Commonwealth v. Eller, 232 Pa.Super. 99, 332 A.2d 507 (1974). We do, however, feel constrained to comment upon the Commonwealth's contention that the appellant, by seeking pre-tria......
  • Request a trial to view additional results

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