Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah Glass, Philadelphia, for appellant.
Wolf, Block, Schorr & Solis-Cohen, Alan J. Davis, Philadelphia, for appellee.
Stephen J. McEwen, Jr., Upper Darby, for Pa. Dist. Attorneys' Assn.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
On December 20, 1973, a special investigating grand jury in Philadelphia filed a presentment recommending Melvin Shelton be indicted on certain criminal charges. The presentment was submitted to a regular indicting grand jury which returned indictments on January 3, 1974. Shelton sought and obtained a discovery order requiring the Commonwealth to make available certain information. Because the discovery order was in apparent conflict with a previous court order impounding certain materials, the discovery order was subsequently modified to require Shelton to apply for clarification of the impounding order before discovery would be allowed.
On July 3, 1974, following a hearing and the submission of briefs, the impounding order was modified to allow Shelton access to various items which had previously been "impounded." On July 31, 1974, Shelton filed various pretrial motions and a pretrial conference was held on August 13, 1974. The Commonwealth filed an answer to Shelton's pretrial motions on September 20, 1974 and a hearing was held on October 9, 1974 in order to dispose of the motions. During that hearing, Shelton made an oral application to dismiss the charges with prejudice pursuant to Pa.R.Crim.P. 1100(f).*fn1 The application alleged
the Commonwealth had failed to comply with section (a)(1) of the Rule*fn2 which mandates the commencement of trial no later than two hundred and seventy (270) days from the date on which the criminal complaint is filed. On October 21, 1974, Shelton filed a written application to the same effect. On November 14, 1974, the Commonwealth filed an answer to the application and requested an extension of time in which to commence trial pursuant to section (c) of the Rule.*fn3 On December 3, 1974, the Court of Common Pleas of Philadelphia entered an order denying Shelton's application but certified that the order, although interlocutory, presented a controlling question of law for which a substantial ground for difference of opinion existed and from which an immediate appeal would materially advance the ultimate determination of the litigation. The Superior Court thereafter exercised its discretion and permitted an appeal from the court's order denying Shelton's application.*fn4 The Superior Court later reversed the order of the Court of Common Pleas and ordered Shelton discharged. Opinion Judge Price. Judge Van der Voort filed "a concurring and dissenting opinion" in which President Judge Watkins and Judge Jacobs joined. The
Commonwealth petitioned for an allowance of appeal and we granted the petition.
The Commonwealth argues that the period of time during which the conflict between the discovery and impounding orders was being resolved by the court should not be "chargeable" to the Commonwealth because it was in fact caused by the judiciary. The Commonwealth thus refers to the period of time which it seeks to ...