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COMMONWEALTH v. CUTILLO (04/22/75)

decided: April 22, 1975.

COMMONWEALTH, APPELLANT,
v.
CUTILLO



Appeal from order of Court of Common Pleas of Chester County, Sept. T., 1973, No. 307, in case of Commonwealth of Pennsylvania v. James D. Cutillo.

COUNSEL

Timothy H. Knauer, Assistant District Attorney, and William H. Lamb, District Attorney, for Commonwealth, appellant.

William J. C. O'Donnell, for appellee.

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

Author: Hoffman

[ 235 Pa. Super. Page 133]

Appellant, the Commonwealth of Pennsylvania, contends that the lower court erred in granting the appellee's petition to dismiss charges pending against him. The appellee was not brought to trial within 270 days after the filing of the complaint, as required by Rule 1100, Pa. R. Crim. P.

On November 8, 1973, a criminal complaint was filed charging the appellee with blackmail and cheating by fraudulent pretenses. On November 26, 1973, the grand jury returned a bill of indictment on these two counts.*fn1 Under Rule 1100(a) (1), as adopted June 8, 1973, "[t]rial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed."*fn2 Therefore, the last date on

[ 235 Pa. Super. Page 134]

    which this case could have been called to trial was August 5, 1974. The case was not called to trial at any time within this period. The Commonwealth contends that this was a result of an error in the computer system operated by the court administrator, which erroneously listed the case as awaiting grand jury action, when it should have been listed as ready for trial. This error was discovered in an audit of the court administration computer system on June 15, 1974. A computer printout indicates that on July 4, 1974, the case was listed for trial on August 12, 1974, a date falling outside the 270-day period. On August 7, 1974, the Commonwealth filed a petition for leave to file an application nunc pro tunc for an order extending the time of commencement of trial. On August 9, 1974, the appellee filed a petition to dismiss the charges with prejudice pursuant to Rule 1100(f). On August 22, 1974, the Commonwealth's motion was denied. On October 15, 1974, the lower court, after a hearing, granted the appellee's motion to dismiss the charges. This appeal followed.

In Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), our Supreme Court announced that "in order to more effectively protect the right of criminal defendants to a speedy trial and also to help eliminate the backlog in criminal cases in the courts of Pennsylvania we deem it expedient to formulate a rule of criminal procedure fixing a maximum time limit in which individuals accused of crime shall be brought to trial, in the future, in this Commonwealth." 449 Pa. at 308-309, 297 A.2d at 133. Following this decision, the Supreme Court promulgated Rule 1100 "setting a time limit in which cases could be brought to trial, the violation of which would result in an immediate dismissal if the delay were not caused by the defendant himself." Commonwealth v. Pearson, 230 Pa. Superior Ct. 304, 307, 327 A.2d 167, 168 (1974).

[ 235 Pa. Super. Page 135]

Rule 1100(d) provides that "[i]n determining the period for commencement of trial, there shall be excuded therefrom such period of delay at any ...


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