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decided: October 8, 1976.



Joseph Michael Smith, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.

Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Roberts, J., took no part in the consideration or decision of this case. Manderino, J., filed a concurring opinion.

Author: Nix

[ 470 Pa. Page 277]


On May 19, 1969, Robert Carter was shot and killed inside the Opus I Bar at North Twenty-Seventh Street in the City of Philadelphia. Theodore Brown, appellant,

[ 470 Pa. Page 278]

    was arrested and charged with the offense. The first trial commenced on October 14, 1970, and resulted in a mistrial because of the jury's inability to agree upon a verdict. At the second trial, a verdict of murder of the second degree was returned. This conviction was reversed by order of this Court in an opinion filed March 16, 1973, because of the introduction of a confession that was found to be the product of an illegal arrest. Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973). At the third trial, Mr. Brown was again convicted of murder of the second degree. Post-trial motions were filed, argued and denied. This direct appeal followed.*fn1

Appellant's first assignment of error is that Pennsylvania Rule of Criminal Procedure 1100(e) has been violated. Rule 1100(e) provides:

"A new trial shall commence within a period of ninety (90) days after [an] entry of an order by the trial court or an appellate court granting a new trial."*fn2

The order of this Court awarding the new trial was entered in March of 1973. Rule 1100 was adopted June 8, 1973. There is a dispute as to whether the retrial was in fact "commenced" within 90 days of the adoption of Rule 1100. This issue need not here be considered however in view of our determination that Rule 1100(e) was not applicable in this case.

Appellant argues that the prospective application of Rule 1100 is applicable only to original trials and does not apply to paragraph (e) which pertains to retrials. This argument is premised upon the fact that paragraphs (a)(1) and (a)(2) of the Rule expressly set forth the effective dates of their operation and paragraph (e) fails to contain such a declaration. The argument fails however to recognize the clear intention that the entire

[ 470 Pa. Page 279]

Rule was only to be given prospective application. The accompanying explanatory note and the comment to the Rule both expressly provide that the provisions of the Rule should be effective prospectively from the date of the adoption of the Rule, June 8, 1973. See also, Commonwealth v. Bailey, 463 Pa. 354, 361, n.6, 344 A.2d 869, 873, n.6 (1975); Commonwealth v. Lee, 460 Pa. 374, 379, n.2, 333 A.2d 773, 776, n.2 (1975); Commonwealth v. Roundtree, 458 Pa. 351, 355, n.6, 326 A.2d 285, 287, n.6 (1974).

Such a view is also consistent with the opinion of this Court in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), wherein we first announced our intention to promulgate a rule which would establish a presumptive time period within which defendants in this State must be tried. In Hamilton, supra, after setting forth the reasons why we believed it to be necessary to develop a presumptive rule in lieu of the "balancing test" set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we stated:

". . . 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." (Emphasis added). Commonwealth v. Hamilton, supra at 308-309, 297 A.2d at 133.

Although Rule 1100 was adopted in an effort to provide defendants in this Commonwealth with a greater protection than the minimum requirements of the Federal Constitution, see Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (filed May 12, 1976), we recognized the stress that this new procedural requirement would create upon the administration of justice within the Commonwealth and therefore attempted to avoid serious disruption by confining its application to future cases. The distinction in the differing prospective applications

[ 470 Pa. Page 280]

    found in paragraphs (a)(1) and (a)(2) was necessitated by the large number of cases which were anticipated to fall within those categories. It was equally clear that the number of cases that would fall within the ambit of paragraph (e) would be far less than the number of cases anticipated to fall within either paragraphs (a)(1) or (a)(2). Therefore, the need to stagger the applicability of the Rule as it applied to original trials was not present in the case of retrials. Thus, both paragraphs (a)(1) and (a)(2) have different standards of prospective application from paragraph (e), but all three paragraphs were nonetheless clearly intended to be prospective in application.

Although this precise issue has not been previously raised, we did have occasion in Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975) to state:

"Because it is the entry of an order granting a new trial which starts the 90 day time limit in paragraph (e) running, that paragraph is applicable to any court case in which such an order is entered after June 8, 1973, the date of adoption of Rule 1100." (Emphasis added). Id. at 258, 336 A.2d at 274.

Appellant contends that it would offend due process to interpret paragraph (e) to be exclusively prospective. This argument is most difficult to comprehend in view of their implicit acceptance of the constitutionality of a purely prospective application in the case of original trials. We have been offered no reason, nor do we know of any, why due process would mandate retroactive application as to retrials and yet allow prospective application as to original trials. Clearly in each instance we are concerned with procedural rules which by their nature do not demand retroactive application. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293,

[ 470 Pa. Page 28187]

S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1965); Linkletter v. Walker, 3 ...

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