Commonwealth v. Shelton

364 A.2d 694, 469 Pa. 8, 1976 Pa. LEXIS 723
CourtSupreme Court of Pennsylvania
DecidedOctober 8, 1976
DocketNo. 454
StatusPublished
Cited by279 cases

This text of 364 A.2d 694 (Commonwealth v. Shelton) 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. Shelton, 364 A.2d 694, 469 Pa. 8, 1976 Pa. LEXIS 723 (Pa. 1976).

Opinion

OPINION OF THE COURT

EAGEN, Justice.

On December 20, 1978, a special investigating grand jury in Philadelphia filed a presentment recommending Melvin Shelton be indicted on certain criminal charges. The presentment was submitted to a regular indicting grand jury which returned indictments on January 3, 1974. Shelton sought and obtained a discovery order requiring the Commonwealth to make available certain information. Because the discovery order was in apparent conflict with a previous court order impounding certain materials, the discovery order was subsequently modified to require Shelton to apply for clarification of the impounding order before discovery would be allowed.

On July 3, 1974, following a hearing and the submission of briefs, the impounding order was modified to allow Shelton access to various items which had previously been “impounded.” On July 31, 1974, Shelton filed various pretrial motions and a pretrial conference was held on August 13, 1974. The Commonwealth filed an answer to Shelton’s pretrial motions on September 20, 1974 and a hearing was held on October 9, 1974 in order to dispose of the motions. During that hearing, Shelton made an oral application to dismiss the charges with prejudice pursuant to Pa.R.Crim.P. 1100(f).1 The application al[12]*12leged the Commonwealth had failed to comply with section (a) (1) of the Rule 2 which mandates the commencement of trial no later than two hundred and seventy (270) days from the date on which the criminal complaint is filed. On October 21, 1974, Shelton filed a written application to the same effect. On November 14, 1974, the Commonwealth filed an answer to the application and requested an extension of time in which to commence trial pursuant to section (c) of the Rule.3 On December 3, 1974, the Court of Common Pleas of Philadelphia entered an order denying Shelton’s application but certified that the order, although interlocutory, presented a controlling question of law for which a substantial ground for difference of opinion existed and from which an immediate appeal would materially advance the ultimate determination of the litigation. The Superior Court thereafter exercised its discretion and permitted an appeal from the court’s order denying Shelton’s application.4 The Superior Court later reversed the order of the Court of Common Pleas and ordered Shelton discharged. Opinion Judge Price. Judge Van der Voort filed “a concurring and dissenting opinion” in which President Judge Watkins and Judge Jacobs joined. The [13]*13Commonwealth petitioned for an allowance of appeal and we granted the petition.

The Commonwealth argues that the period of time during which the conflict between the discovery and impounding orders was being resolved by the court should not be “chargeable” to the Commonwealth because it was in fact caused by the judiciary. The Commonwealth thus refers to the period of time which it seeks to have removed from computation of the time under Rule 1100 as “judicial delay.”5

Initially, we reject the manner in which the Commonwealth has framed the issue. Rule 1100 is not worded in terms of charging either the Commonwealth or an accused with periods of delay. Further, such terminology only serves to confuse the issue and thereby tends to cause confusion in the application of the Rule.

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).6 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 [14]*14cannot be commenced within the mandatory period provided by the Rule or set forth in an order granting extension. Pa.R.Crim.P. 1100(c). Thus, arguments relating to Rule 1100 are properly advanced by employing the terminology of the Rule. We shall therefore consider the Commonwealth’s argument in this manner.

Instantly, section (a)(1) 7 of Rule 1100 mandated the commencement of trial within two hundred and seventy days (270) from the filing of the complaint.8 On October 21, 1974, when Shelton filed his written motion to dismiss the charges, the mandatory period of section (a)(1) in which to commence trial had already been exceeded.9 Thus, all of the delay beyond the two hundred and seventy (270) day mandatory period

“ . . . 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 [15]*15terms of the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail.”

Commonwealth v. O’Shea, supra at 496, 350 A.2d at 874.

The Commonwealth may not seek an extension pursuant to section (c) of the Rule nunc pro tunc, that is, the application for an extension must be filed prior to the expiration of the mandatory period set forth in the Rule or set forth in a previous order granting an extension. Commonwealth v. O’Shea, supra at 498, 350 A.2d at 875 n. 9; Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). Whether or not an application for an extension is timely filed is determined by computing the amount of time which has lapsed from the filing of the complaint to the date on which the Commonwealth files its application, less any periods which are properly ex-cludable pursuant to section (d) of the Rule. If the time so computed exceeds the mandatory period of the Rule or, in cases where an extension or extensions have been properly granted, exceeds the mandatory period set forth in the order granting the last extension, then the application is untimely.

Instantly, the Commonwealth sought an extension on November 14, 1974. The mandatory period in which to commence trial set forth in section (a) (1) had by that date been exceeded. Further, the two express exclusions of section (d) are here clearly inapplicable. Thus, the Commonwealth’s application for an extension was untimely and the trial court erred in granting an extension.

The Commonwealth’s argument that it should not be “charged” with “judicial delay” when considered in terms of the Rule seeks to have us imply an exclusion in addition to those expressed in section (d). In furtherance of its argument, the Commonwealth asserts that its right to effectuate a criminal prosecution has been substantially impaired because of dicta present in the major[16]*16ity opinion of the Superior Court. That opinion stated, inter alia, that “judicial delay” was not only an insufficient basis on which to imply an exclusion, but it was also an insufficient basis on which to grant an extension pursuant to section (c) of the Rule.

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Bluebook (online)
364 A.2d 694, 469 Pa. 8, 1976 Pa. LEXIS 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-shelton-pa-1976.