*1 Pennsylvania COMMONWEALTH v. SHIELDS, Appellant. John Pennsylvania. Superior Court of 2, 1976. Submitted 31, 1977. Decided March *2 Savitz, Defender, Judith W. Assistant and Benjamin Ler- ner, Defender, Philadelphia, appellant.
Jane Cutler Greenspan, Assistant District and Attorney, F. Emmett District Fitzpatrick, Attorney, Philadelphia, for appellee. WATKINS,
Before President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
HOFFMAN, Judge: Appellant contends that he should be discharged because he was not to trial within brought as days mandated by 1100, Pa.R.Crim.P., 19 P.S. Appendix.
Appellant was arrested in connection with a June rape that took on place North 22nd Street Philadelphia. The magistrate issued the criminal on complaint June Thus, the Commonwealth had 270 in which to bring appellant to trial. Rule 1100(a). After numerous listings, case had still not come to trial on May when the lower court heard and denied appellant’s petition to dismiss filed to Rule pursuant 1100(f). Trial commenced on the and lasted until following day 27, when a jury of rape.1 September
found appellant guilty lower court motions and sen- post-trial denied appellant’s to a term of of 4 to 15 imprisonment years. tenced appellant This followed. appeal trial commenced 329 after the
Appellant’s filing the criminal The sole issue is whether at least complaint. were excluded from the properly computation Commonwealth required bring which Shelton, to trial. Commonwealth v. appellant Pa. The (1976). however, Commonwealth argues, that “. it is clear that the allowable two hundred under Rule 1100 (270) days was exceeded be- seventy First, delays. cause of created the 32 day delay 23rd to 24th must September be charged defendant in view of the in Rule against provision 1100(d)(1) the time of defense counsel’s excluding unavailability. *3 19th from to November 1st must day delay September also be counted defendant as it was a at the against delay of defense counsel. Rule For the request 1100(d)(2). same reason, the 6th 6th, to March delay February days, must also be counted the defense. Also against to be the defendant is the computed against period of time from 1975, a 28 to total of April twenty-one (21) days, which was caused defense counsel’s for a continu- request ance.
“Thus to the delays directly attributable defense amount- ed to a total of one hundred and nineteen Even (119) days. of subtracting (30) continuance allowable to thirty the defense under Rule 1100(d)(2), (89) a total of eighty-nine must be attributed to defense counsel’s delay.” Based case, on the Commonwealth’s view of the appellant within the time period. tried The Dissent makes a somewhat different calculation: “On 23, 1974, the case was called for trial but was witness; continued due to the vacation a period of 19,1974, is permitted. September exclusion On the case was Code, 6, 1972, 1; Crimes Act of December P.L. No. § 18 Pa.C.S.A. § continued because defense counsel stated that called but was 1, 1974, the continuance to November he was not prepared; granted, which was defense counsel and was requested by ... On the case February was for 38 days. continued to March 6 was called but was ordered because the defense was not the continu- attorney ready proceed; ance was for 28 ... granted days.
the case was called but was until 19May continued because stated that he was not this is a attorney ready; ” 1-2; continuance. . . . at 26-day (Slip opinion, em- phasis original).
The Dissent and the Commonwealth both make a funda- mental mistake in time excluded under Rule computing 1100(d). 1100(d) that provides determining “[i]n trial, for commencement of there shall be period excluded therefrom such at of the period delay stage any proceed- as results from: ings .
“(2)
continuance in excess of
thirty (30) days
at the
granted
request
defendant or his attorney,
that
provided
period
beyond
(30th)
thirtieth
day
shall be so excluded.” (Emphasis added). The Dissent
would hold that the rule
one
contemplates only
thirty day
of exclusion. That is a
erroneous
clearly
interpreta
tion of
Lewis,
the rule.
Commonwealth v.
See
Pa.Super.
357,
The rule states that time specifically be excluded from the results from the delay request continuance and if that continuance is excess of 30 states, as the rule “. there shall be ex- —or *4 . any (30)days.” cluded continuance excess of thirty Subsection is the basis for automatic 1100(d) only exclusion Shelton, of time under the rule. v. Commonwealth supra. Thus, the rule does not exclusion of simply permit any delay resulting from a continuance for less than 30 days.2 Further, authority proposition there is no for the that a defendant only thirty days entitled to one continuance in excess of before the explicit: full is excluded. The rule is continuance a
Such literal ruling produces a result is neither nor unfair. A startling continuance is not solely within the control of the but is litigant,3 entrusted to the sound discre- of the court, 301, tion Rule Pa.R.Crim.P., thereby preventing unfair a manipulation by Further, defendant. if a defend- ant a continuance near requests the end of the period, court condition its on the approval defendant’s agree- ment to a trial date beyond period. See Commonwealth v. Myrick, 155, 468 Pa. (filed 6, A.2d 598 1976); July Hickson, Commonwealth v. 496, 235 Pa.Super.
(1975).
Rule
Finally,
1100(c)affords the Commonwealth a
full and effective
if a
remedy
defendant’s need for addition-
al time prevents the Commonwealth from
its case
trying
within the period. Commonwealth v.
214,
469 Pa.
Mayfield,
The period correctly computed is as follows: appel lant was tried 329 after the days complaint. We will assume that 32 23, from days September 24,1974, must be excluded from the period.4 case was continued from 24,5 September until November on appellant’s re based quest day delay. Only are eight days exclud thereby —a ed. Rule 1100(d)(2). None of the 28 day delay Febru ary to March the result of appellant’s for a request continuance, excluded; can be nor can of the 21 .any day thirty days may excluded; instance, excess of but in each
days in excess of 30 shall be excluded. By contrast, all time is excluded if the defendant is unavailable. is, That merely by accused cannot benefit from absenting the rule jurisdiction hiding himself from the police. or from the 1100(d)(1). 4. The Dissent assumes that this cannot be excluded. How- ever, argues the Commonwealth that it resulted from defense coun- unavailability. purposes opinion, sel’s For of this we have excluded running those 32 period. from the request 5. The for the continuance was made five in advance of hearing simply illogical the scheduled date. It is to exclude during proceedings which meaningful were way scheduled —in no delay did request prior result from the defendant’s to the scheduled Coleman, date. Cf. Pa.Super. Commonwealth v. 361 A.2d (1976). *5 28, 19, excluded. Neither to be delay May Therefore, continuance was in excess of thirty days. from the total of 329 It is days. can be excluded that trial did not commence within the mandated apparent of time. Therefore, we reverse the of sentence and order judgment appellant discharged. J., in which VOORT, dissenting opinion filed
VAN der WATKINS, JACOBS, J., and Judge, join. President VOORT, Judge, dissenting:
VAN der case, I Majority’s disposition must dissent from this wherein to our appeal taken Court from judgment 24, 1975, sentence rendered on September following jury 27, verdict on 1975 of as Post-trial May guilty charged. denied, motions had been made and preserving the present 20, issue for review. 1975, On or about May appellant filed dismiss, to application pursuant 1100(f). Pa.R.Crim.P. Relief 21, 1975, was denied Order on May trial began
The sole for consideration is whether question the lower court erred in appellant’s for dismissal. denying application Based the record it is our Court’s task to upon determine 1100, whether Rule it as to this case and as it applies mandates commencement of trial within 270 from the filed, date on which the complaint allowable plus excludable, was contravened. properly 27, was filed on June 1974. The complaint operative trial, e., date for commencement of i. thence, would be March In the manner, following shall exam- ine the record to if determine there are periods properly if, therefore, excludable and of time 270-day span extended On thereby. the case was called for trial but was continued due to the vacation period witness; of a no exclusion is permitted. On September 1974, the case was called but was continued because defense counsel stated that he was not prepared; the continuance to
November which was requested counsel and was was for 88 granted, days. October *6 case was called but was continued because the assistant the court attorney district informed that he would not be 1; November time is ready by no excludable therefor. On 12, 1974, December the was case called but was continued unavailable; because the was time complainant is exclud- 10, 1975, able therefor. On the January case was called but was continued because the defendant was not in brought from it prison, although that he could have appears been not in to court and was unavailable brought terms of February no time is excludable On 1100(d)(1); therefor. Rule but continued to case was called was ordered the March 6 the because defense was not attorney to ready proceed; the continuance was granted days. On March the case was but called was continued until March 11, no reason The case was given. next called on April 18, 1975,but was continued until April because of courtroom unavailability. On case was called but was continued until because attorney May stated that he not this is a ready; continuance. 26-day May the case was again called and both sides above, indicated readiness. As stated appellant’s petition to dismiss prior was filed and denied to the commencement of trial on case,
In the instant three continuances granted were un- der 1100(d)(2), totalling days. The question becomes what is guideline by mandated that rule for computing the time to be excluded from the running of the 270-day period for commencement of trial: “. . . there shall be ex- cluded therefrom such period delay at any stage of the as results . proceeding (2) continuance excess of thirty (30) granted at the request of the defendant or his provided attorney, only that the period beyond the thirtieth (30th) day shall be so excluded.”
A continuance in the context present is the result of a or for request the benefit of the by defendant whereby date for trial is It delayed. delayed by defendant times; regardless one or more but how times trial is many off, there one only operative circumstance—trial is put being because of its continued. consideration of delayed My what is meant “continuance” differs from that of the by consider the Rule to a series Majority contemplate of continuances the defendant to be one integrated action occurrences, disparate rather than to be considered separate- Rule 1100makes clear that we time ly.1 are consider one for the commencement of trial —either 180 or 270 Whether this is to be extended reason of days. must be considered excludable It is retrospectively. reasonable then to add number of up total continuance, i. e. devoted to one and then to purpose, the Rule. apply
The of Rule clear. If in a case application 1100(d)(2)is continuance, there exists mean taken to the total num- defendant, ber of consumed for that asked days purpose, by in total number than 30 then there shall greater days, excluded the the thirtieth “only period beyond (30th) day”. what is no more
Performing
than the
arithmetic
simplest
Rule,
called for
the number of
which
by
days by
this case
was continued should be added to reach a total of 92 days
continuance for
expended by
the defendant. Subtracted
therefrom is the 30-day “grace
to be
period”, leaving
days
excluded from the
of the
running
mandated 270
for
days
trial. Thus the
period
commencement of trial is extend-
ed by that number. Trial here must have begun 332 days
after
or
26,
June
by May
Trial began May
22, 1975, within the
as
period extended. Common-
Shelton,
8,
wealth v.
469 Pa.
And our Court has just such an recently accepted interpre- tation of the Rule in questioned Bean, Commonwealth v. interpret “any”, 1100(d)(2), modify the word in Rule “continu- totality continuance, ance” and to indicate that this of time for if exceeding days, according exists, will be handled to the Rule if it i. e., “any if there is continuance” to be considered. (filed 1976), December 368, 368 A.2d
Pa.Super. under granted had been two continuances wherein represented the days Our Court totaled 1100(d)(2).2 Rule and arrived at a period”, 30-day “grace one thereby, granted which the time set for by days of excludable number (cid:127) extended. I find no was to be of trial commencement so short-lived to make position Majority’s in the justification 1100(d)(2) our Court. by of interpretation as a mandating separation the Rule reads Majority each and continuance which every from the whole of a and consideration of the granted, have been requested If those are less than each. represented by forthwith. If those exceed then are excluded they of the whole is reduced part such each then number remains is exclud- and whatever 30-day grace period for the of trial. I can beginning the operable ed from unintended interpretation more or abusive no imagine of the ease with which literal this Rule. It is illustrative in recognition surroundings which take readings is to exist can the reader. Never trap which language of continuances in Rule 1100was treatment special intended in thinking There is neither magic which exceed 30 days. treated nor specially logic such a continuance should be the continuance achieved dividing totality in one case. defendant manner the whole continuance
Further, to divide this for each grace period and to grant 30-day into its parts *8 emasculates the purpose is Such part equally wrong. the absurd conclusion and allows period” allowing “grace continuance will have a “grace period”. that each of the part all por- excludes by Majority The reading propounded and does of less than days, tions of the whole continuance every the first 30 of each and part not recognize which the Rule is each exceeds 30 part days by whole when — for the defendant. made like a sieve Watkins, J., Voort, J., joined by Opinion P. and Jacobs 2. Van der Price, Dissenting Opinion by Cercone, Dissent noted J. and JJ. Hoffman, J., joined by Spaeth, J. with the statement that this literal disagree Majority’s unfair; is neither nor view it has reading startling my (1100(d)(2)) both of these As the Rule is qualities. interpret- e., that the time ed i. continues to by Majority, run for 30 out of Commonwealth each against and continuance, in cases a every many defendant by a few 30 continuances can securing day very easily move the time the (now) of trial limit and beyond day escape trial without the Commonwealth altogether what realizing This to me is both happening. and unfair. startling Such of the rule it interpretation renders unworkable. I would affirm the order of the court below.
WATKINS, J., President Judge, JACOBS, join in this Dissenting Opinion.
Leon COHEN et al. v. MASTERS, INTERNATIONAL ORGANIZATION MATES & PILOTS, INTERNATIONAL MARINE DIVISION OF
ILA, AFL-CIO, et al.
Appeal of Robert J. LOWEN.
Superior Court of Pennsylvania.
Argued Sept.
Decided March