Commonwealth v. Shields

371 A.2d 1333, 247 Pa. Super. 74, 1977 Pa. Super. LEXIS 1614

• Court: Superior Court of Pennsylvania
• Decided: March 31, 1977
• Docket: 1045
• Status: Published

Opinions

HOFFMAN, Judge:

Appellant contends that he should be discharged because he was not brought to trial within 270 days as mandated by Rule 1100, Pa.R.Crim.P., 19 P.S. Appendix.

Appellant was arrested in connection with a June 26, 1974 rape that took place on North 22nd Street in Philadelphia. The magistrate issued the criminal complaint on June 27, 1974. Thus, the Commonwealth had 270 days in which to bring appellant to trial. Rule 1100(a). After numerous listings, the case had still not come to trial on May 21, 1975, when the lower court heard and denied appellant’s petition to dismiss filed pursuant to Rule 1100(f). Trial commenced on the following day and lasted until May 27, when a jury found appellant guilty of rape.¹ On September 24, 1975, the lower court denied appellant’s post-trial motions and sentenced appellant to a term of imprisonment of 4 to 15 years. This appeal followed.

Appellant’s trial commenced 329 days after the filing of the criminal complaint. The sole issue is whether at least 59 days were properly excluded from the computation of the period in which the Commonwealth was required to bring the appellant to trial. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). The Commonwealth argues, however, that “. . . it is clear that the allowable two hundred and seventy (270) days under Rule 1100 was exceeded because of defense created delays. First, the 32 day delay from August 23rd to September 24th must be charged against defendant in view of the provision in Rule 1100(d)(1) excluding the time of defense counsel’s unavailability. The 38 day delay from September 19th to November 1st must also be counted against defendant as it was a delay at the request of defense counsel. Rule 1100(d)(2). For the same reason, the delay from February 6th to March 6th, 28 days, must also be counted against the defense. Also to be computed against the defendant is the period of time from April 28 to May 19, 1975, a total of twenty-one (21) days, which was caused by defense counsel’s request for a continuance.

“Thus delays attributable directly to the defense amounted to a total of one hundred and nineteen (119) days. Even subtracting the thirty (30) days of continuance allowable to the defense under Rule 1100(d)(2), a total of eighty-nine (89) days must be attributed to defense counsel’s delay.” Based on the Commonwealth’s view of the case, appellant was tried within the time period.

The Dissent makes a somewhat different calculation: “On August 23, 1974, the case was called for trial but was continued due to the vacation period of a witness; no exclusion is permitted. On September 19,1974, the case was called but was continued because defense counsel stated that he was not prepared; the continuance to November 1, 1974, which was requested by defense counsel and was granted, was for 38 days. ... On February 6, 1975, the case was called but was ordered continued to March 6 because the defense attorney was not ready to proceed; the continuance granted was for 28 days. ... On April 23, 1975, the case was called but was continued until May 19 because defense attorney stated that he was not ready; this is a 26-day continuance. . . . ” (Slip opinion, at 1-2; emphasis in original).

The Dissent and the Commonwealth both make a fundamental mistake in computing time excluded under Rule 1100(d). Rule 1100(d) provides that “[i]n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: .

“(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.” (Emphasis added). The Dissent would hold that the rule contemplates only one thirty day period of exclusion. That is a clearly erroneous interpretation of the rule. See Commonwealth v. Lewis, 237 Pa.Super. 357, 352 A.2d 99 (1975).

The rule specifically states that time may be excluded from the period of that delay results from the request for a continuance and if that continuance is in excess of 30 days — or as the rule states, “. . . there shall be excluded . . . any continuance in excess of thirty (30) days.” Subsection 1100(d) is the only basis for automatic exclusion of time under the rule. Commonwealth v. Shelton, supra. Thus, the rule simply does not permit exclusion of any delay resulting from a continuance for less than 30 days.²

Such a literal ruling produces a result that is neither startling nor unfair. A continuance is not solely within the control of the litigant,³ but is entrusted to the sound discretion of the court, Rule 301, Pa.R.Crim.P., thereby preventing unfair manipulation by a defendant. Further, if a defendant requests a continuance near the end of the period, a court may condition its approval on the defendant’s agreement to a trial date beyond the period. See Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (filed July 6, 1976); Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975). Finally, Rule 1100(c) affords the Commonwealth a full and effective remedy if a defendant’s need for additional time prevents the Commonwealth from trying its case within the period. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Shelton, supra.

The period correctly computed is as follows: appellant was tried 329 days after the complaint. We will assume that 32 days from August 23, to September 24,1974, must be excluded from the period.⁴ The case was continued from September 24,⁵ until November 1, based on appellant’s request — a 38 day delay. Only eight days are thereby excluded. Rule 1100(d)(2). None of the 28 day delay from February 6, to March 6, the result of appellant’s request for a continuance, can be excluded; nor can .any of the 21 day delay from April 28, to May 19, be excluded. Neither continuance was in excess of thirty days. Therefore, only 40 days can be excluded from the total of 329 days. It is apparent that trial did not commence within the mandated period of time.

Therefore, we reverse the judgment of sentence and order appellant discharged.

VAN der VOORT, J., filed a dissenting opinion in which WATKINS, President Judge, and JACOBS, J., join.

1 . The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 3121.

2 . Further, there is no authority for the proposition that a defendant is entitled to only one continuance in excess of thirty days before the full period is excluded. The rule is explicit: any continuance in excess of thirty days may be excluded; but in each instance, only the days in excess of 30 shall be excluded.

3 . By contrast, all time is excluded if the defendant is unavailable. That is, an accused cannot benefit from the rule merely by absenting himself from the jurisdiction or hiding from the police. Rule 1100(d)(1).

4 . The Dissent assumes that this period cannot be excluded. However, the Commonwealth argues that it resulted from defense counsel’s unavailability. For purposes of this opinion, we have excluded those 32 days from the running of the period.

5 . The request for the continuance was made five days in advance of the scheduled hearing date. It is simply illogical to exclude days during which no proceedings were scheduled — in no meaningful way did delay result from the defendant’s request prior to the scheduled date. Cf. Commonwealth v. Coleman, 241 Pa.Super. 450, 361 A.2d 870 (1976).