Commonwealth v. Shearer

Superior Court of Pennsylvania

Commonwealth v. Shearer

389 A.2d 124, 255 Pa. Super. 570, 1978 Pa. Super. LEXIS 3073

CourtSuperior Court of Pennsylvania

DecidedJuly 12, 1978

DocketNo. 1682

StatusPublished

Cited by1 cases

This text of 389 A.2d 124 (Commonwealth v. Shearer) is published on Counsel Stack Legal Research, covering Superior 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. Shearer, 389 A.2d 124, 255 Pa. Super. 570, 1978 Pa. Super. LEXIS 3073 (Pa. Ct. App. 1978).

Pincite

Opinion

HOFFMAN, Judge:

Because we believe that the lower court erred in denying appellant’s Rule 1100(f)¹ application, we vacate the judgment of sentence and order appellant discharged.

[572]*572In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694, 696 (1976), our Supreme Court stated: “Rule 1100 mandates the commencement of trial within a specifically defined period of time. It provides for two exclusions from the computation of the mandatory period. Pa.R.Crim.P. 1100(d).[²] Whether or not circumstances exist in any given case which warrant excluding certain periods of time pursuant to section (d) is to be determined when an accused applies for dismissal of the charges because of an alleged violation of the Rule pursuant to section (f). Commonwealth v. O’Shea, 465 Pa. 491, 350 A.2d 872, 875 n. 9 (1976). Further, the Rule provides for extensions of the mandatory period where despite due diligence by the Commonwealth trial cannot be commenced within the mandatory period provided by the Rule or set forth in an order granting extension. Pa.R. Crim.P. 1100(c).”³

In the instant case, Rule 1100(a)(2) mandated the commencement of trial within 180 days from the filing of the complaint on August 3, 1976. Trial did not commence until February 18,1977, 200 days after the filing of the complaint. Thus, twenty days “ ‘must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of [573]*573the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail.’ Commonwealth v. O’Shea, [supra, 465 Pa. at 491, 350 A.2d at 874]” Commonwealth v. Shelton, supra, 469 Pa. at 14, 364 A.2d at 697. The Commonwealth does not contend that any days may be excluded from the mandatory period pursuant to Rule 1100(d). Instead, the Commonwealth attempts to justify the delay on the basis of a January 28, 1977 order granting a 30 day extension of time within which to commence trial pursuant to Rule 1100(c). However, the Commonwealth’s Rule 1100(c) petition alleged only that trial could not be commenced within the 180 day period because appellant’s pre-trial suppression motions remained outstanding. At a January 25, 1977 hearing on its Rule 1100(c) petition, held 175 days after the filing of the Complaint, the Commonwealth conceded that the lower court had resolved appellant’s suppression motions on January 24, 1977, and admitted that it could proceed to trial within the next four days. Nevertheless, the Commonwealth reiterated its request for a Rule 1100(c) extension, and the lower court granted this request. We believe that the lower court’s action contravened Rule 1100(c)’s injunction that: “[s]uch application shall be granted only if trial cannot be commenced within the [180 day] period, despite due diligence by the Commonwealth.” Once the Commonwealth conceded that the lower court had decided all outstanding suppression motions prior to the January 25, 1977 hearing, no reason appeared why trial could not be commenced before the expiration of the 180 day period. Accordingly, the lower court should have refused the Commonwealth’s request for a Rule 1100(c) petition and should have granted appellant’s subsequent Rule 1100(f) application. Commonwealth v. Woodson, 248 Pa.Super. 545, 375 A.2d 375 (1977). We vacate the judgment of sentence and order appellant discharged.

Judgment of sentence vacated and appellant discharged.

VAN der VOORT and HESTER, JJ., dissent.

Free access — add to your briefcase to read the full text and ask questions with AI

HOFFMAN, Judge:

Because we believe that the lower court erred in denying appellant’s Rule 1100(f)¹ application, we vacate the judgment of sentence and order appellant discharged.

[572]*572In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694, 696 (1976), our Supreme Court stated: “Rule 1100 mandates the commencement of trial within a specifically defined period of time. It provides for two exclusions from the computation of the mandatory period. Pa.R.Crim.P. 1100(d).[²] Whether or not circumstances exist in any given case which warrant excluding certain periods of time pursuant to section (d) is to be determined when an accused applies for dismissal of the charges because of an alleged violation of the Rule pursuant to section (f). Commonwealth v. O’Shea, 465 Pa. 491, 350 A.2d 872, 875 n. 9 (1976). Further, the Rule provides for extensions of the mandatory period where despite due diligence by the Commonwealth trial cannot be commenced within the mandatory period provided by the Rule or set forth in an order granting extension. Pa.R. Crim.P. 1100(c).”³

In the instant case, Rule 1100(a)(2) mandated the commencement of trial within 180 days from the filing of the complaint on August 3, 1976. Trial did not commence until February 18,1977, 200 days after the filing of the complaint. Thus, twenty days “ ‘must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of [573]*573the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail.’ Commonwealth v. O’Shea, [supra, 465 Pa. at 491, 350 A.2d at 874]” Commonwealth v. Shelton, supra, 469 Pa. at 14, 364 A.2d at 697. The Commonwealth does not contend that any days may be excluded from the mandatory period pursuant to Rule 1100(d). Instead, the Commonwealth attempts to justify the delay on the basis of a January 28, 1977 order granting a 30 day extension of time within which to commence trial pursuant to Rule 1100(c). However, the Commonwealth’s Rule 1100(c) petition alleged only that trial could not be commenced within the 180 day period because appellant’s pre-trial suppression motions remained outstanding. At a January 25, 1977 hearing on its Rule 1100(c) petition, held 175 days after the filing of the Complaint, the Commonwealth conceded that the lower court had resolved appellant’s suppression motions on January 24, 1977, and admitted that it could proceed to trial within the next four days. Nevertheless, the Commonwealth reiterated its request for a Rule 1100(c) extension, and the lower court granted this request. We believe that the lower court’s action contravened Rule 1100(c)’s injunction that: “[s]uch application shall be granted only if trial cannot be commenced within the [180 day] period, despite due diligence by the Commonwealth.” Once the Commonwealth conceded that the lower court had decided all outstanding suppression motions prior to the January 25, 1977 hearing, no reason appeared why trial could not be commenced before the expiration of the 180 day period. Accordingly, the lower court should have refused the Commonwealth’s request for a Rule 1100(c) petition and should have granted appellant’s subsequent Rule 1100(f) application. Commonwealth v. Woodson, 248 Pa.Super. 545, 375 A.2d 375 (1977). We vacate the judgment of sentence and order appellant discharged.

Judgment of sentence vacated and appellant discharged.

VAN der VOORT and HESTER, JJ., dissent.

Cite This Page — Counsel Stack

Bluebook (online)

389 A.2d 124, 255 Pa. Super. 570, 1978 Pa. Super. LEXIS 3073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-shearer-pasuperct-1978.

Opinion

Related

Cite This Page — Counsel Stack