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COMMONWEALTH v. FISHER (03/16/73)

SUPREME COURT OF PENNSYLVANIA


decided: March 16, 1973.

COMMONWEALTH
v.
FISHER, APPELLANT

Appeal from order of Superior Court, Oct. T., 1971, Nos. 683 to 689, inclusive, affirming judgment of sentence of Court of Common Pleas of Delaware County, Jan. T., 1970, Nos. 853 to 863, inclusive, in case of Commonwealth of Pennsylvania v. Charles Fisher.

COUNSEL

John G. McDougall, Assistant Public Defender, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, with him Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 451 Pa. Page 103]

On February 8, 1971, Charles Fisher was convicted by a jury in Delaware County of armed robbery and related charges stemming from the armed hold up of an Acme food market in Upper Darby on August 15, 1968. Post-trial motions were denied and a prison sentence was imposed. On appeal the Superior Court unanimously affirmed the judgment without opinion. [220 Pa. Superior Ct. 747, 286 A.2d 417 (1971)]. We granted allocatur.*fn1

The sole question presented is whether the trial court erred in denying a pretrial motion to dismiss the indictments due to the Commonwealth's failure to comply with the provisions of the Interstate Agreement on

[ 451 Pa. Page 104]

Detainers, Act of September 8, 1959, P. L. 829, Section 1, 19 P.S. § 1431, which provides for trial within one hundred and eighty (180) days after receipt of demand.*fn2

The chronology of events critical to the issue involved is as follows: On May 12, 1970, Delaware County authorities lodged five (5) detainers against Fisher who was incarcerated in the New Jersey State Prison at Trenton.

On June 9, 1970, Fisher properly advised the district attorney and the Court of Common Pleas of Delaware County that he was desirous of making final disposition of these detainers in accordance with the Interstate Agreement on Detainers, supra.

This communication reached the offices of the district attorney and court clerk on June 11, 1970. It is

[ 451 Pa. Page 105]

    this date, therefore, which marks the beginning of the statutory time limit. On August 11th an assistant district attorney wrote to accept the New Jersey authorities' offer of temporary custody, but it was not until September 28th that Fisher was actually taken into custody and returned to this state. At this point in time one hundred and nine (109) days of the one hundred and eighty (180) day period had elapsed.

On October 16, 1970, Fisher received a preliminary hearing on two of the warrants. A prima facie case was found and the matter was bound over for the December grand jury session.

On December 9, 1970 (one hundred and eighty-one (181) days after demand for trial was received), the Commonwealth filed a petition for a continuance and to set the trial date for January 25, 1971. On December 11th, Fisher filed a petition to quash the warrants and transcripts and for a writ of habeas corpus alleging that he was entitled to discharge since he was not tried in the one hundred and eighty (180) day period. This petition was denied and the Commonwealth's petition for a continuance was granted. An appeal to the Superior Court was quashed and the case was remanded for trial.

Prior to the start of trial on February 8, 1971, Fisher renewed his motion for dismissal to no avail.

The Commonwealth admits at the outset that for court calendar reasons it could not try Fisher in time.*fn3

[ 451 Pa. Page 106]

However, it seeks to avoid the sanction of this statute by contending that the motion for continuance was timely under rule of State v. Lippolis, 55 N.J. 354, 262 A.2d 203 (1970) and that good cause was shown.

In the above case, the court interpreted the Detainer Agreement to permit the grant of any necessary or reasonable continuance at any time prior to an actual entry of an order dismissing the indictment. In so doing the court freighted the statute with considerations of prejudice and the lack thereof,*fn4 emanations which we fail to perceive and accordingly refuse to adopt. We read this enactment to provide that the action of continuing the matter must be determined at or prior to the expiration of the one hundred and eighty (180) day period prescribed in the statute. See Commonwealth v. Martin, 445 Pa. 49, 282 A.2d 241 (1971).

The purpose sought to be achieved by this act is to promote and foster prisoner treatment and rehabilitation programs by eliminating the uncertainties which accompany the filing of detainers. See 19 P.S. § 1431, Article I, and Hoss v. State, 13 Md. App. 404, 283 A.2d 629 (1971). "The legislation adopting the agreement is obviously remedial in character and, thus, by familiar principal should be construed liberally in favor of the prisoner." State v. West, 79 N.J. Super. 379, 384, 191 A.2d 758, 760 (1963). We agree with the

[ 451 Pa. Page 107]

New Jersey Superior Court that "[t]he Legislature adopted the dismissal sanction not because a prisoner would be prejudiced at trial if trial were delayed more than one hundred and eighty (180) days after demand, but because such a sanction for failure to try defendant within a fixed, reasonable period of time after demand was regarded as essential to produce general compliance with the statutory mandate. The sanction is a prophylactic measure to induce compliance in the generality of cases." State v. Lippolis, 107 N.J. Super. 137, 145, 257 A.2d 705, 710 (1969).

While the Commonwealth might arguably, have had good cause to obtain a continuance,*fn5 it does not have, nor did it attempt to offer, an excuse for its dilatoriness in seeking the continuance.

[ 451 Pa. Page 108]

That the Commonwealth misconceives the operation of the statutory time provisions is best illustrated by the assertion in its brief that since Fisher was not brought into this jurisdiction until one hundred and nine (109) days after date of demand "he was within its jurisdiction for trial, under the strict provision of the Act, for only 71 days." It is further pointed out "appellant was in fact tried within 133 days of his arrival in this jurisdiction." Such facts are of no moment since the statute begins to run from the time the request is received, not from the date the prisoner returns to the jurisdiction which issued the detainers.

The order of the Superior Court and the judgment of the court of original jurisdiction are reversed, and the record is remanded to the last mentioned court with directions to enter an order consonantly with this opinion.

Disposition

Order of Superior Court reversed; judgment of court of original jurisdiction reversed, and record remanded with directions.


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