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decided: March 29, 1976.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1973, Nos. 2145 to 2156, inclusive, in case of Commonwealth of Pennsylvania v. Melvin Shelton.


Alan J. Davis, with him Wolf, Block, Schorr & Solis-Cohen, for appellant.

James Garrett, Assistant District Attorney, with him Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring and Dissenting Opinion by Van der Voort, J. Watkins, P.j., and Jacobs, J., join in this concurring and dissenting opinion.

Author: Price

[ 239 Pa. Super. Page 197]

This is an appeal*fn1 from an order of the Court of Common Pleas of Philadelphia County denying the appellant's petition to dismiss the charges against him for violation of his right to a speedy trial under Rule 1100(a)(1) of the Pennsylvania Rules of Criminal Procedure.*fn2 For the reasons stated herein, we reverse the order below and discharge the appellant.

[ 239 Pa. Super. Page 198]

On December 20, 1973, the June, 1972 Special Investigating Grand Jury of Philadelphia County issued a Presentment recommending that the appellant be prosecuted for alleged extortion, larceny, bribery, perjury, and other related offenses. Pursuant to this recommendation, a regular Grand Jury returned indictments against the appellant on January 3, 1974.*fn3 Thereafter, several pre-trial conferences were held in which the appellant sought to obtain, and the Commonwealth agreed to furnish, various items of discovery. Upon application by the Commonwealth, Judge BLAKE of the court below entered a formal order requiring the Commonwealth to provide the appellant with the requested discovery items. On or about April 17, 1974, however, Judge BLAKE became aware of a possible conflict between his discovery order and a previous order entered by Judge TAKIFF, impounding "[A]ll documents of the Investigating Grand Jury of the June Term, 1972, including transcripts of testimony and books and records of every description . . ." Judge BLAKE therefore entered a second order, granting the appellant substantially the same discovery as had the previous order, but requiring the appellant to make application to Judge TAKIFF for clarification or modification of his

[ 239 Pa. Super. Page 199]

    order of impoundment. After a hearing and a submission of briefs, Judge TAKIFF filed an opinion on July 3, 1974, in which he allowed the appellant access to only a portion of the requested discovery items.

On July 31, 1974, the appellant filed various other pre-trial motions in the lower court, and a pre-trial conference was scheduled on August 13, 1974. At that conference, the court below requested that the Commonwealth file an answer to the appellant's pre-trial motions. On September 20, 1974, the Commonwealth entered its answer, and a hearing was held on October 9, 1974, to dispose of the pre-trial motions. At this hearing, the appellant made an oral application to dismiss the charges for violation of Rule 1100;*fn4 the appellant entered a written application to dismiss the charges on October 21, 1974. At the time the petition to dismiss was filed, 305 days had elapsed since the date of the Presentment and 291 days from the date of the Indictments.*fn5 Nevertheless, the case had never been listed for trial. On November 14, 1974, the Commonwealth filed an answer to the appellant's petition which included a request that the lower court extend the time for trial. On December 3, 1974, the lower court denied the appellant's application to dismiss, concluding that:

"[T]he period of delay from April 15, 1974, to July 3, 1974, and resulting from the fact that there were outstanding conflicting orders by Judges of this Court thereby preventing the case from coming to trial despite due diligence by the Commonwealth, should be and are [sic] excluded from the computation

[ 239 Pa. Super. Page 200]

    of the 270 day period. Thus when Judge Blake cautioned the Commonwealth about the '270 day rule' at the pre-trial hearing on June 19, 1974, he was referring to that time period as extended by the period of time as set forth above.*fn6

"Accordingly, Defendant's petition for dismissal under Rule 1100 is denied. The new expiration date under ...

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