Commonwealth v. Shelton
| Decision Date | 29 March 1976 |
| Citation | 361 A.2d 873,239 Pa.Super. 195 |
| Parties | COMMONWEALTH of Pennsylvania v. Melvin SHELTON, Appellant. |
| Court | Pennsylvania Superior Court |
Alan J. Davis, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, for appellant.
Deborah E. Glass, Asst. Dist. Atty., Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
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.
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 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 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:
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]
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]
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 appealed, contending that Rule 1100 is designed to avoid Commonwealth delay, does not address itself to the role of the courts in this regard, and is therefore inapplicable to those cases where the delay is solely attributable to the judiciary. We affirmed the lower court order, holding, Inter alia, that the 270 day period had expired. Furthermore, we declared that the 'Commonwealth . . . misconstrues the nature and purpose of the right to a speedy trial,' Id. at 230, 357 A.2d at 616, and noted that "it is unimportant whether delay is occasioned by the prosecutor's office or by the court; so long as the delay is . . . not occasioned by the defendant. . . ." Id. at 231, 357 A.2d at 617, Quoting Commonwealth v. Wilson, 231 Pa.Super. 451, 454, 331 A.2d 792, 794 (1974). Implicit in our holding in Silver is the proposition that a period of judicial delay is not properly excluded from the period for commencement of trial under Rule 1100. We therefore hold in this case that the lower court erred by tolling the prescribed time period during a delay occasioned by the court.
Rule 1100(c) permits the attorney for the Commonwealth to apply to the court for an order extending the time for commencement of trial. This Section, however, mandates that this application be made Prior to the expiration of the period for commencement of trial. In this case, the Commonwealth, alleging that the delay in bringing the appellant to trial was occasioned by the court, sought an extension of time under Section (c) in its answer to the appellant's petition to dismiss. By this time, however, the prescribed 270 day period for the commencement of trial had already expired. See Commonwealth v. Silver, supra. The Commonwealth may not seek an extension of time under Section (c) once the time limit set forth in the rule has expired. [9] Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (filed January 29, 1976); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). We therefore hold that the lower court erred by granting the Commonwealth's application for an extension of time under Rule 1100(c).
Upon violation of his right to a speedy trial, an individual is entitled to have the charges against him dismissed with prejudice under Rule 1100(f). [10] Without question, the dismissal of an indictment for the denial of a speedy trial is a 'severe . . . remedy.' Barker v. Wingo,407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Indeed, in practice, 'it means that a defendant who may be guilty of a serious crime will go free, without having been tried.' Id. at 522, 92 S.Ct. at 2188. While recognizing the fundamental right of an individual to a speedy trial, we do not wish to grant an accused immunization from prosecution merely because of Preventable legal error. Society has an interest in bringing an accused to trial. Therefore, although the merits of the instant case have already been decided, we wish to clarify further our position concerning Rule 1100.
We readily envision the situation where the Commonwealth timely files an application for an extension of time pursuant to Rule 1100(c), claiming that it has exercised due diligence, yet trial cannot be commenced within the prescribed period because of some difficulty attributable to the court. For example, this might occur if the court is not able to commence trial within the prescribed time because of an overcrowded court docket. Upon consideration of the policies to be served by Rule 1100, we hold that Rule 1100 not only precludes the Exclusion of periods of judicial delay from the prescribed time period, but also precludes an Extension of the prescribed time period predicated upon judicial delay.
The right to a speedy trial is one of our 'most basic rights,' Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), and is guaranteed by the Sixth and Fourteenth Amendments to the United...
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