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.
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
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
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 ...