Commonwealth v. Chilcote

578 A.2d 429, 396 Pa. Super. 106, 1990 Pa. Super. LEXIS 1407
CourtSupreme Court of Pennsylvania
DecidedJuly 20, 1990
Docket00133
StatusPublished
Cited by40 cases

This text of 578 A.2d 429 (Commonwealth v. Chilcote) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Chilcote, 578 A.2d 429, 396 Pa. Super. 106, 1990 Pa. Super. LEXIS 1407 (Pa. 1990).

Opinions

HUDOCK, Judge:

Following a nonjury trial, Appellant was found guilty of four counts of possession of a controlled substance with [110]*110intent to deliver.1 Timely filed post-trial motions were denied. Appellant’s original sentence of 8 to 20 years imprisonment was reduced to an aggregate term of 7 years in response to his motion to modify sentence. Appellant was also ordered to pay: (1) the costs of prosecution; (2) the sum of $1,750 as restitution for the money advanced for undercover police activities in connection with these cases; and (3) a fine of $2,000. A second motion to modify was denied and this appeal follows.2 For the reasons set forth below, we affirm.

Appellant’s instant appeal raises the following issues for our review:

(1) The trial court erred in denying Appellant’s motion to dismiss the prosecutions pursuant to Pa.R.Crim.P. 1100(f).
(2) The trial court erred in denying the motion to dismiss on the basis of a violation of Appellant’s due process rights under the federal and state constitutions.
(3) The trial court erred in refusing to grant a motion for recusal based on participation of the trial judge in plea negotiations in contravention of Pa.R.Crim.P. 319(b)(1).
(4) 42 Pa.C.S.A. § 9781 is unconstitutional as it is in direct conflict with Article V, §§ 9 and 10(c) of the Pennsylvania Constitution.
(5) The sentence imposed by the trial court is harsh, excessive and a gross abuse of discretion and otherwise unconstitutional under the federal and state constitutions.

The facts of the case were summarized by the trial court as follows. Following the sale of controlled substances by Appellant to Trooper Ranee N. Morey, an undercover agent for the Pennsylvania State Police, three criminal complaints were filed against Appellant on December 23, 1981. The [111]*111first complaint alleged that Appellant delivered a Schedule II controlled substance, cocaine. The second complaint alleged that Appellant possessed with intent to deliver a non-narcotic Schedule I controlled substance, approximately two pounds of marijuana. The third complaint alleged that Appellant possessed with intent to deliver a Schedule II non-narcotic substance, one ounce of methamphetamine. Criminal informations were filed in connection with these offenses at No. 6 C.A., 1982.

On March 24, 1982, another criminal complaint was filed against Appellant, alleging that he possessed with intent to deliver a Schedule II non-narcotic controlled substance, cocaine, and that he also possessed with intent to deliver a Schedule I non-narcotic controlled substance, marijuana. This complaint was the result of a controlled purchase from Appellant by Trooper Morey of approximately 1½ ounces of cocaine and 1½ pounds of marijuana. Criminal informations were filed at No. 141 C.A., 1982 with regard to these offenses.

On April 22, 1982, Appellant filed a request for the appointment of a physician pursuant to 35 P.S. § 780-1183, disposition in lieu of trial or criminal punishment. The trial court entered an order reflecting its refusal of Appellant’s request on September 7, 1982. Appellant’s appeal from that order was quashed as being interlocutory. Allocatur was subsequently granted by our Supreme Court. However, Appellant withdrew his appeal when the Commonwealth agreed to permit Appellant to be examined by a physician in accordance with 35 P.S. § 780-118. The record was returned to the trial court from our Supreme Court on May 3, 1985.

Because the Commonwealth had never filed a motion for extension of time within which to commence trial under Pa.R.Crim.P. 1100(c), Appellant filed two motions to dismiss on July 8, 1985, based on Pa.R.Crim.P. 1100(f) and on a claimed due process violation. The trial court held these [112]*112motions until the trial date fixed for the following week, July 15, 1985. On that date, the court entered an order denying both motions, and trial commenced immediately thereafter. We will address the multiplicity of issues raised by Appellant seriatim.

In his brief, Appellant argues that the two cases underlying this appeal should be dismissed for violation of his right to a speedy trial pursuant to Pa.R.Crim.P. 1100, 42 Pa.C.S.A. Rule 1100(a)(2), at the time the within criminal complaints were filed, provided that a trial in a court case in which a written complaint is filed against the defendant shall commence no later than 180 days from the date on which the complaint is filed.4 Appellant summarizes his position as follows. The complaint in No. 6 C.A., 1982 was filed on December 23, 1981 while the Complaint in No. 141 C.A., 1982 was filed on March 24, 1982. Appellant calculates the period of time between the filing of the complaints and his trial as being 1,300 and 1,209 days respectively. Appellant contends that only 81 days, resulting from a limited waiver of his Rule 1100 right, for the period of May 3, 1982 to July 23, 1982, are excludable in connection with No. 6 C.A., 1982. He concedes, however, that the period of delay for the appeal process, calculated to be 966 days, is excludable. With respect to the calculation of the Rule 1100 time period regarding the charges at No. 141 C.A., 1982, Appellant maintains that only the 966-day appeal period is excludable. Based on the following discussion, we find that Appellant’s contentions are erroneous.

Initially, we note that Rule 1100(d), effective during all periods of time relevant to this case, mandated that any period of delay at any stage of the proceedings that results [113]*113from the unavailability of the defendant or his attorney must be excluded when determining the period for commencement of trial.5 Commonwealth v. Riffert, 379 Pa.Super. 1, 10, 549 A.2d 566, 571 (1988). Further, we observe that the time intervening between a defendant’s filing of pre-trial motions and the trial court’s disposing of such motions is also time which is properly excluded from the computation of the 180-day period under Rule 1100 due to the unavailability of the defendant. Commonwealth v. Riffert, supra (defendant’s trial could not commence until his omnibus pretrial motion was disposed of by the trial court; thus, he was unavailable to be tried while his motion was pending). Additionally, the time period that a case is on appeal is properly excluded from the Rule 1100 computation. Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981) (timely appellate procedures clearly divest the trial court of authority to proceed, and thus act as an automatic supersedeas of the operation of Rule 1100).

Appellant filed a pre-trial motion on April 22, 1982, requesting the appointment of a physician pursuant to 35 P.S. § 780-118(a). In effect, Appellant was requesting that the criminal charges against him be disposed of under this section and that he be permitted drug dependency treatment in lieu of a trial, possible criminal conviction, and consequential incarceration. On September 7, 1982, the trial court refused Appellant’s request, which led to his appeal to this Court and subsequently to our Supreme Court.

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Cite This Page — Counsel Stack

Bluebook (online)
578 A.2d 429, 396 Pa. Super. 106, 1990 Pa. Super. LEXIS 1407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-chilcote-pa-1990.