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COMMONWEALTH v. WILSON (12/11/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 11, 1974.

COMMONWEALTH, APPELLANT,
v.
WILSON

Appeal from order of Court of Common Pleas of Bucks County, No. 1171 of 1971, in case of Commonwealth of Pennsylvania v. Forrest James Wilson.

COUNSEL

G. Roger Markley, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellant.

Richard S. Wasserbly, Assistant Public Defender, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 231 Pa. Super. Page 452]

On October 12, 1971, while serving a sentence in the State of New Jersey, the appellee was indicted by the Bucks County (Pennsylvania) Grand Jury on a charge of possession of 0.2 gram of marijuana. On April 27, 1973, pursuant to the Interstate Agreement on Detainers,*fn1 which requires that a defendant, upon request, be brought to trial within 180 days, the appellee filed a request for disposition of that indictment.*fn2 On

[ 231 Pa. Super. Page 453]

April 30, 1974, the lower court granted appellee's motion to dismiss the indictment for failure to comply with the time proscriptions of the aforesaid Act. It is the propriety of that order which is presently before the Court in this Commonwealth appeal.

The record reveals the following pertinent facts. Pursuant to his April 27, 1973, request for disposition, the appellee was delivered to Bucks County authorities on June 1, 1973, for trial the following Tuesday, June 5, 1973. On that date the court granted the public defender's request for a continuance in order to prepare the case and contact witnesses. The next trial listing was October 24, 1973, and on that date defense counsel orally moved to dismiss the indictment under the misconception that the time proscription under the Act was 120 rather than 180 days.*fn3 The hearing judge reserved decision pending transcription of the notes of testimony taken at the hearing of the June 5, 1973, continuance motion.

At this point the record ceases, and the only chart through the succeeding months is provided by the opinion of the court below. "The court stenographer acted promptly, but due to inexplicable inadvertence of the hearing judge (the writer of this opinion) the case was lost sight of until it was brought to his attention by the district attorney on April 18, 1974. This delay has resulted in a total time lapse in excess of 180 days even if the number of days due to the continuance of June 5 is deducted. The hearing judge felt he could not in good conscience ignore his own delay in the computation of time." Opinion of Judge Walsh at 2. The court then granted appellee's October 24, 1973, motion to dismiss the indictment.

[ 231 Pa. Super. Page 454]

The question thus before this Court is whether the indictment was properly dismissed where the Commonwealth complied with the time limits of the Interstate Agreement on Detainers; but where the trial court, through administrative inadvertence, failed to effect an orderly or efficient progression of the case. We hold that in view of the policy and purpose of the Act, the court acted properly in dismissing the indictment.

The policy of the Interstate Agreement on Detainers is "to encourage the expeditious and orderly disposition" of charges*fn4 and its purpose "is to promote and foster prisoner treatment and rehabilitation programs by eliminating uncertainties which accompany the filing of detainers." Commonwealth v. Fisher, 451 Pa. 102, 106, 301 A.2d 605, 607 (1973). To that end it is unimportant whether delay is occasioned by the prosecutor's office or by the court; so long as the delay is neither reasonable nor necessary,*fn5 and not occasioned by the defendant,*fn6 the legislative policy must be heeded.

The Commonwealth argues that the delay was both reasonable and necessary and that it was caused by the appellee. Both of these arguments may be discounted. Even assuming that the time period between June 5 and October 24 is properly chargeable to the appellee,*fn7

[ 231 Pa. Super. Page 455]

    the 180 day period was still exceeded when the continuance period is excluded. We do not believe that by moving for dismissal of the indictment the appellee can be said to have caused the delay between October 24, 1973, and April 30, 1974, a period of some 188 days. Also, the Commonwealth's argument that the delay was a reasonable one required by the court to rule on the motion, especially in light of the appellee's erroneous citing of the 120 day rule, is rejected by the court itself. The court excludes the possibility that it was considering the case, stating that "due to inexplicable inadvertence . . . the case was lost sight of until it was brought to [the court's] attention by the district attorney on April 18, 1974." The court thus implicitly finds that the delay was neither reasonable nor necessary.

The Interstate Agreement on Detainers is legislation "obviously remedial in character and, thus, by familiar principal [sic] should be construed liberally in favor of the prisoner." Commonwealth v. Fisher, supra at 106, 301 A.2d at 607, quoting, State v. West, 79 N.J. Super. 379, 384, 191 A.2d 758, 760 (1963).

Order affirmed.

Disposition

Order affirmed.


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