Com. v. Shelton

• Decision Date: 29 March 1976
• Parties: COMMONWEALTH of Pennsylvania v. Melvin SHELTON, Appellant.
• Court: Pennsylvania Superior Court

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361 A.2d 873 239 Pa.Super. 195 COMMONWEALTH of Pennsylvania
v.
Melvin SHELTON, Appellant. Superior Court of Pennsylvania. March 29, 1976.

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[239 Pa.Super. 197] Alan J. Davis, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, for appellant.

Deborah E. Glass, Asst. Dist. Atty., Philadelphia, for appellee.

[239 Pa.Super. 196] Before WATKINS, President Judge, and [239 Pa.Super. 197] JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

PRICE, Judge.

This is an appeal ¹ from an order of the Court of Common Pleas of Philadelphia County denying the appellant's petition to dismiss the charges against him for violation of his right to a speedy trial under Rule 1100(a)(1) of the Pennsylvania Rules of Criminal Procedure. ² For the reasons stated herein, we reverse the order below and discharge the appellant.

[239 Pa.Super. 198] On December 20, 1973, the June, 1972, Special Investigating Grand Jury of Philadelphia County issued a Presentment recommending that the appellant be prosecuted for alleged extortion, larceny, bribery, perjury, and order related offenses. Pursuant to this recommendation, a regular Grand Jury returned Indictments against the appellant on January 3, 1974. ³ Thereafter,

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several pre-trial conferences were held in which the appellant sought to obtain, and the Commonwealth agreed to furnish, various items of discovery. Upon application by the Commonwealth, Judge Blake of the court below entered a formal order requiring the Commonwealth to provide the appellant with the requested discovery items. On or about April 17, 1974, however, Judge Blake became aware of a possible conflict between his discovery order and a previous order entered by Judge Takiff, impounding '(A)ll documents of the Investigating Grand Jury of the June Term, 1972, including transcripts of testimony and books and records of every description. . . .' Judge Blake therefore entered a second order, granting the appellant substantially the same discovery as had the previous order, but requiring the appellant to make application to Judge Takiff for clarification or modification of his [239 Pa.Super. 199] order of impoundment. After a hearing and a submission of briefs, Judge Takiff filed an opinion on July 3, 1974, in which he allowed the appellant access to only a portion of the requested discovery items.

On July 31, 1974, the appellant filed various other pre-trial motions in the lower court, and a pre-trial conference was scheduled on August 13, 1974. At that conference, the court below requested that the Commonwealth file an answer to the appellant's pre-trial motions. On September 20, 1974, the Commonwealth entered its answer, and a hearing was held on October 9, 1974, to dispose of the pre-trial motions. At this hearing, the appellant made an oral application to dismiss the charges for violation of Rule 1100; ⁴ the appellant entered a written application to dismiss the charges on October 21, 1974. At the time the petition to dismiss was filed, 305 days had elapsed since the date of the Presentment and 291 days from the date of the Indictments. ⁵ Nevertheless, the case had never been listed for trial. On November 14, 1974, the Commonwealth filed an answer to the appellant's petition which included a request that the lower court extend the time for trial. On December 3, 1974, the lower court denied the appellant's application to dismiss, concluding that:

'(T)he period of delay from April 15, 1974 to July 3, 1974, and resulting from the fact that there were outstanding conflicting orders by Judges of this Court thereby preventing the case from coming to trial despite due diligence by the Commonwealth, should be and are (sic) excluded from the computation[239 Pa.Super. 200] of the 270 day period. Thus when Judge Blake cautioned the Commonwealth about the '270 day rule' at the pre-trial hearing on June 19, 1974, he was referring to that time period as extended by the period of time as set forth above. ⁶

'Accordingly, Defendant's petition for dismissal under Rule 1100 is denied.

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The new expiration date under Rule 1100 is December 16, 1974.'

Prior to our inquiry into the merits of the appellant's allegations of error, we must note that although the lower court denied the motion to dismiss on the basis that the appellant's trial was delayed due to 'outstanding conflicting orders by Judges of this Court . . .,' the Commonwealth does not here defend the lower court's order on this ground. Curiously, the Commonwealth argues that the pre-trial delay in this case was caused by the defense, rather than by the judiciary. Upon review of the record, we find that the appellant, in his application to dismiss the charges, pleaded that he was not chargeable with any delay. The Commonwealth admitted this fact 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-trial discovery, should be held responsible for the delay in this case. We believe that the effectiveness of Rule 1100 would be seriously hampered, if not destroyed, if we were to charge the accused with the time consumed in the determination of regular pre-trial motions. ⁷

[239 Pa.Super. 201] The appellant contends that the lower court erred by (1) excluding a delay occasioned by the judiciary from the computation of the prescribed 270 day period, and (2) granting the Commonwealth's application for an extension of time under Section (c) of Rule 1100. ⁸ We agree with the appellant's contentions.

Recently, in Commonwealth v. Silver, 238 Pa.Super. 221, 357 A.2d 612 (filed December 1, 1975), we encountered a situation greatly similar to the case at bar. In Silver, the defendant's trial was delayed while the lower court attempted to secure the services of an out of county judge. The lower court, however, allowed the defendant's petition and the Commonwealth...