decided: January 29, 1976.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
RONALD O'SHEA, APPELLEE
John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellant.
John J. Dean, John R. Cook, Pittsburgh, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
[ 465 Pa. Page 493]
OPINION OF THE COURT
This is an appeal*fn1 by the Commonwealth from an order entered in the trial court granting a motion to dismiss with prejudice certain criminal charges against Ronald O'Shea and discharging him from custody. The motion was filed and the order entered pursuant to Rule 1100, § (f) of the Pennsylvania Rules of Criminal
[ 465 Pa. Page 494]
Procedure.*fn2 For the reasons stated herein, we affirm the order of the court.
The facts on which the court granted the order are as follows:
On March 22, 1972, O'Shea was convicted of murder in the first degree. On April 23, 1974, this Court reversed the conviction and remanded the case for a new trial. The Commonwealth listed the case for trial within the then applicable ninety-day limitation for the commencement of a new trial as required by Section (e) of Rule 1100 of the Pennsylvania Rules of Criminal Procedure.*fn3 Prior to the actual commencement of the new trial, the Commonwealth decided to seek review of our decision granting the new trial by the Supreme Court of the United States through a petition for a writ of certiorari. The Commonwealth, moreover, sought an order in the trial court postponing the new trial since the preparation and resolution of the petition would not be completed until after the date for which trial was listed. The order postponing trial was granted. The order noted that a resolution of the petition for certiorari could not be obtained within ninety days of the order granting a new trial and directed: "If the Writ of Certiorari is denied, the Commonwealth will set a trial date within thirty (30) days of said denial."
The petition was denied on December 23, 1974. The Commonwealth then set trial for March 3, 1975, seventy-days
[ 465 Pa. Page 495]
following the denial of the petition and forty days beyond the thirty-day limitation imposed by the order granting the postponement.*fn4 On February 23, 1975, sixty-two days following the denial of the petition and thirty-two days beyond the thirty-day limitation imposed by the order granting the postponement, O'Shea filed a motion to dismiss the charges asserting that the Commonwealth had failed to retry him within the ninety-day limitation or within the extension period granted by the order postponing the trial beyond the denial date of the petition for certiorari.*fn5
Based on these facts the trial court concluded the Commonwealth had violated Section (e) of Rule 1100 although the court did allow the introduction of testimony by which the Commonwealth attempted to justify the delay beyond the period set forth in the order granting
[ 465 Pa. Page 496]
the delay in trial. The court was eminently correct in ruling the Commonwealth had failed to comply with the provisions of Section (e) of Rule 1100. However, although the error proved to be of no consequence, the Commonwealth had no right, after the period set forth in the order granting a delay in trial allowed by the court had expired, to attempt to excuse its failure to set a trial date within thirty days of the date certiorari was denied with evidence tending to show a necessity for an additional extension.
Section (e) of Rule 1100 specifically states that a new trial must commence within ninety days of an order granting a new trial.*fn6 The computation of the ninety-day limitation instantly must thus begin on April 23, 1974, or the date of our order granting a new trial. All of the delay beyond ninety-days following that date must be either excluded from the computation of the ninety days under the terms of the rule or justified by an order granting an extension pursuant to the terms of the rule if the Commonwealth is to prevail.
Section (d) of Rule 1100 provides for two exclusions from the computation of the time limitation, but
[ 465 Pa. Page 497]
neither is here applicable.*fn7 Section (c) of Rule 1100 provides for the granting of extensions beyond the limitation where application for such is made and trial cannot be commenced within the limitation despite due diligence by the Commonwealth. This procedure is the method to be followed by the Commonwealth in a case such as this where the Commonwealth seeks any appeal from an order of the trial court or an appellate court granting a new trial.*fn8
The order granting a postponement in this case allowed the Commonwealth an extension as provided for by Section (c) for the purposes of taking an appeal.
[ 465 Pa. Page 498]
This extension was granted in order to protect the Commonwealth's right of appeal and provided adequate protection for that right. Indeed, the exercise of the right of appeal presents the court with the obvious type of situation wherein an extension should be granted.
Further, the order states a specific period within which trial was to commence. "Any order granting [an extension] . . . shall specify the date or period within which trial shall be commenced." Rule 1100, Section (c) Pennsylvania Rules of Criminal Procedure. [Emphasis added.] The extension does not toll the ninety-day limitation nor does it renew its commencement at some later date; rather, the order granting the extension must state a specific date or period within which trial must be commenced, as the order in this case did. The period or date specified in the order then becomes the time limitation within which trial must commence. Any further extension necessary must be sought pursuant to Section (c) prior to the expiration of the period for commencement of trial, that is, prior to the expiration of the period provided for in the extension, or excluded from the computation of elapsed time pursuant to Section (d).*fn9
Since the order stated trial was to be scheduled within thirty days of the denial of the petition for certiorari
[ 465 Pa. Page 499]
and since no further extension was properly sought and since O'Shea was not brought to trial within the period provided for in the extension, the Commonwealth failed to comply with Rule 1100.*fn10 The order dismissing the charges with prejudice and discharging O'Shea is therefore affirmed.
The obvious factual distinction between this case and Carter is that Carter petitioned this Court for an order dismissing the charges. We did not then consider it necessary to state this Court's views on the propriety of seeking a dismissal of criminal charges under Rule 1100 from this Court and we do not do so now. It is sufficient to note the distinction inherent in the procedural posture of the cases and remark, without ruling on the question, that were this Court to entertain petitions to dismiss under Rule 1100, we would then become involved in evidentiary hearings whenever the Commonwealth tried to show certain periods of time stated in Section (d) should be excluded from the computation of time. This is not an initial function of an appellate court.