Commonwealth v. O'Shea
| Decision Date | 29 January 1976 |
| Citation | 465 Pa. 491,350 A.2d 872 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Ronald O'SHEA, Appellee. |
| Court | Pennsylvania Supreme Court |
Argued Sept. 23, 1975.
John J. Hickton, Dist. Atty., Robert L. Eberhardt Asst. Dist. Atty., Pittsburgh, for appellant.
John J. Dean, John R. Cook, Pittsburgh, for appellee.
Before JONES C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
This is an appeal [1] by the Commonwealth from an order entered in the trial court granting a motion to dismiss with prejudice certain criminal charges against Ronald O'Shea and discharging him from custody. The motion was filed and the order entered pursuant to Rule 1100, § (f) of the Pennsylvania Rules of Criminal Procedure. [2] For the reasons stated herein, we affirm the order of the court.
The facts on which the court granted the order are as follows:
On March 22, 1972, O'Shea was convicted of murder in the first degree. On April 23, 1974, this Court reversed the conviction and remanded the case for a new trial. The Commonwealth listed the case for trial within the then applicable ninety-day limitation for the commencement of a new trial as required by Section (e) of Rule 1100 of the Pennsylvania Rules of Criminal Procedure. [3] Prior to the actual commencement of the new trial, the Commonwealth decided to seek review of our decision granting the new trial by the Supreme Court of the United States through a petition for a writ of certiorari. The Commonwealth, moreover, sought an order in the trial court postponing the new trial since the preparation and resolution of the petition would not be completed until after the date for which trial was listed. The order postponing trial was granted. The order noted that a resolution of the petition for certiorari could not be obtained within ninety days of the order granting a new trial, and directed: 'If the Writ of Certiorari is denied, the Commonwealth will set a trial date within thirty (30) days of said denial.'
The petition was denied on December 23, 1974. The Commonwealth then set trial for March 3, 1975, seventy days following the denial of the petition and forty days beyond the thirty-day limitation imposed by the order granting the postponement. [4] On February 23, 1975, sixty-two days following the denial of the petition and thirty-two days beyond the thirty-day limitation imposed by the order granting the postponement, O'Shea filed a motion to dismiss the charges asserting that the Commonwealth had failed to retry him within the ninety-day limitation or within the extension period granted by the order postponing the trial beyond the denial date of the petition for certiorari. [5]
Based on these facts the trial court concluded the Commonwealth had violated Section (e) of Rule 1100 although the court did allow the introduction of testimony by which the Commonwealth attempted to justify the delay beyond the period set forth in the order granting the delay in trial. The court was eminently correct in ruling the Commonwealth had failed to comply with the provisions of Section (e) of Rule 1100. However, although the error proved to be of no consequence, the Commonwealth had no right, after the period set forth in the order granting a delay in trial allowed by the court had expired, to attempt to excuse its failure to set a trial date within thirty days of the date certiorari was denied with evidence tending to show a necessity for an additional extension.
Section (e) of Rule 1100 specifically states that a new trial must commence within ninety days of an order granting a new trial. [6] The computation of the ninety-day limitation instantly must thus begin on April 23, 1974, or the date of our order granting a new trial. All of the delay beyond ninety-days following that date must be either excluded from the computation of the ninety days under the terms of the rule or justified by an order granting an extension pursuant to the terms of the rule if the Commonwealth is to prevail.
Section (d) of Rule 1100 provides for two exclusions from the computation of the time limitation, but neither is here applicable. [7] Section (c) of Rule 1100 provides for the granting of extensions beyond the limitation where application for such is made and trial cannot be commenced within the limitation despite due diligence by the Commonwealth. This procedure is the method to be followed by the Commonwealth in a case such as this where the Commonwealth seeks any appeal from an order of the trial court or an appellate court granting a new trial. [8]
The order granting a postponement in this case allowed the Commonwealth an extension as provided for by Section (c) for the purposes of taking an appeal. This extension was granted in order to protect the Commonwealth's right of appeal and provided adequate protection for that right. Indeed, the exercise of the right of appeal presents the court with the obvious type of situation wherein an extension should be granted.
Further, the order states a specific period within which trial was to commence. 'Any order granting (an extension) . . . shall specify the date or Period within which trial shall be commenced.' Rule 1100, Section (c) Pennsylvania Rules of Criminal Procedure. (Emphasis added.) The extension does not toll the ninety-day limitation nor does it renew its commencement at some later date; rather, the order granting the extension must state a specific date or period within which trial must be commenced, as the order in this case did. The period or date specified in the order then becomes the time limitation within which trial must commence. Any further extension necessary must be sought pursuant to Section (c) prior to the expiration of the period for commencement of trial, that is, prior to the expiration of the period provided for in the extension, or excluded from the computation of elapsed time pursuant to Section (d). [9]
Since the order stated trial was to be scheduled within thirty days of the denial of the petition for certiorari and since no further extension was properly sought and since O'Shea was not brought to trial within the period provided for in the extension, the Commonwealth failed to comply with Rule 1100. [10] The order dismissing the charges with prejudice and discharging O'Shea is therefore affirmed.
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Notes:
[1] Jurisdiction is conferred by the Act of July 31, 1970, P.L. 673, No. 223, art. II, Section 202, 17 P.S. s 211.202(1).
[2] Section (f) provides:
[3] Section (e) provides:
'A new trial shall commence within a period of ninety (90) (now one hundred and twenty (120)) days after the entry of an order by the trial court or an appellate court granting a new trial.'
[4] Time computations are made in compliance with the Act of November 25, 1970, P.L. 707, No. 230, 1 C.P.S.A. s 1908 which compels the exclusion of the first day and inclusion of the last day.
While the time computations are made from the date of the denial of the petition for certiorari and thus in compliance with the findings of fact of the trial court which state that the trial date was to be set Within thirty days of the denial, the order granting the postponement in fact stated that trial was to be set Within thirty days of notice of the denial of the petition for certiorari. Since the notice of denial was stamped January 2, 1975, and was therefore apparently received on that date, the distinction makes no difference under the instant facts. Under the principles outlined above the rule was violated whether trial was ordered set within thirty days of the denial or whether it was ordered set within thirty days of the notice of the denial. Further, the Commonwealth does not challenge the findings of the trial court.
[5] Extensions of the ninety-day limitation may be granted pursuant to Section (c) of Rule 1100, which provides:
[6] In Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975), this Court ruled Section (e) of Rule 1100 was applicable to any case in which an order granting a new trial was entered after June 8, 1973. Since this Court ordered a new trial on April 23,...
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