Opinion
April 14, 1975.
September 22, 1975.
Criminal Law — Practice — Trial — Right to speedy trial — Pa. R. Crim. P. 1100(e) — Delay in new trial not due to defendant — Defendant discharged.
1. In this case, an order was entered granting the defendant a new trial. The Commonwealth requested continuances, and the trial was not held within ninety days of the order granting the new trial as required by Pa. R. Crim. P. 1100(e), in effect at the time the new trial was ordered. It was Held that the court below erred in not dismissing the indictment.
2. A defendant is entitled to a speedy trial in a criminal case.
3. If the defendant is not granted a speedy trial he need not show prejudice from the delay.
4. It was Held in this case that there was no evidence in the record to indicate that the defendant joined in the request for continuances or acquiesced in or contributed to the delays which occurred.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 30, April T., 1975, from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, June T., 1972, No. 5815, in case of Commonwealth of Pennsylvania v. Robert Carter, alias William Leslie Robertson, alias James Allen. Judgment of sentence reversed and appellant discharged.
Indictment charging defendant with armed robbery and receiving stolen goods. Before FIOK, J., without a jury.
Finding of guilty of robbery and judgment of sentence entered thereon. Defendant appealed.
John R. Cook, Trial Defender, with him John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.
JACOBS, J., concurred in the result.
Argued April 14, 1975.
This direct appeal raises a question of the right to speedy trial. The appellant, Robert Carter, after conviction in 1972 on charges of armed robbery and receiving stolen goods, filed post-trial motions for New Trial and in Arrest of Judgment. After hearings on these motions, he was granted a new trial by an Order of the lower court dated January 15, 1974. He was not tried until May 15, 1974, when he was again convicted and sentenced. Relying upon Rule 1100 of the Pennsylvania Rules of Criminal Procedure, he now claims that he was not afforded a speedy trial. We are constrained to agree.
The record shows that the appellant was first scheduled for trial, pursuant to the January 15, 1974 Order, on February 20, 1974. The case was postponed upon the motion of the Commonwealth, due to the unavailability of the chief Commonwealth witness, a police officer. On April 15, 1974, appellant filed an Application to Quash the indictment on grounds that Rule 1100 (e) of the Pennsylvania Rules of Criminal Procedure had been violated. Rule of Criminal Procedure 1100 (19 P.S. Appendix) was adopted June 8, 1973, pursuant to the decision in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). Until its amendment on December 9, 1974, Section (e) of that Rule provided that:
The proper procedure to object to the length of delay in being brought to trial is an application to dismiss the charges with prejudice. See Pa. R. Crim. P. 1100 (f). We will consider the motion to quash as an application to dismiss. Cf., Commonwealth v. Roundtree, 458 Pa. 351, 326 A.2d 285, 287 (1974).
"A new trial shall commence within a period of ninety (90) days after the entry of an order by the trial court or an appellate court granting a new trial."
On December 9, 1974, this Section was amended so as to require that new trial commence within a period of one hundred and twenty (120) days after the entry of an order. The prior rule must be held applicable to the instant case, where new trial was ordered on January 15, 1974.
The April 15, 1974 Application to Quash was denied. Although trial was scheduled for April 16, 1974, it was again postponed upon the motion of the Commonwealth, based upon the absence of the chief prosecution witness. On May 15, 1974, trial finally commenced and appellant was convicted. In post-trial motions, prior to this appeal, he again argued that the timing of his trial violated Rule 1100 (e) and his right to a speedy trial.
It is pertinent of course that there is no evidence in the record to indicate that appellant joined in requests for continuances or acquiesced in or contributed to the delays which occurred. See Commonwealth v. Hamilton, supra. Also, it is clear that the appellant need not show prejudice from the delay to support his claims in the instant case. cf. Commonwealth v. Pearson, 230 Pa. Super. 304, 327 A.2d 167 (1974). In these regards, we must reject the Commonwealth's arguments based on authorities such as Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974), and Commonwealth v. Williams, 457 Pa. 502, 327 A.2d 15 (1974).
In light of the clear violation of the then existing time limitations set forth in Rule 1100 (e) and the absence of excusing circumstances such as delays sought by the defendant, or application by the Commonwealth for extension of time for trial, we have no choice but to reverse the judgment of sentence and dismiss the indictment. See Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 2188, 33 L. Ed. 2d 101, 112 (1972).
Judgment of sentence reversed. The charges are dismissed with prejudice and the appellant is discharged from said charges.
JACOBS, J., concurs in the result.