Nicholas Trott Long, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Philadelphia, for appellee.
Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Roberts, J., did not participate in the consideration or decision of this case. Eagen and O'Brien, JJ., concur in the result.
Appellant, Ira Gregg, was indicted for murder, tried by a jury and found guilty of murder in the first degree. A sentence of life imprisonment was imposed, post-verdict motions were denied and this appeal followed.
Prior to trial, appellant moved to dismiss the indictment, contending that he had not been tried within one hundred twenty days as required by Article IV(c) of the Interstate Agreement on Detainers. (19 P.S. § 1431). This contention was renewed in post-verdict motions and again in this appeal.
We hold that the charge against the appellant should have been dismissed because he was denied the right to a speedy trial within the requirements of the Interstate Agreement on Detainers, 19 P.S. § 1431. Because of this there is no need to consider other issues raised.
Pursuant to the Agreement on Detainers, appellant was brought to this Commonwealth from Kansas in early January of 1974. Article IV(c) of the Agreement on Detainers mandated that the appellant be tried within one hundred twenty days of his arrival in Pennsylvania The applicable provision states:
"In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." (Emphasis added.)
There is no dispute that the one hundred twenty day period specified by the Agreement concluded on May 4,
, and that appellant's trial did not commence until June 19, 1974. Subsequent to that date, appellant moved for dismissal of the charges.
Our approach to the problem begins with the admonition of Commonwealth v. Fisher, 451 Pa. 102, 106, 301 A.2d 605, 607 (1973) that because
"[t]he legislation adopting the agreement is obviously remedial in character . . . by familiar principal (sic) [it] should be construed liberally in favor of the prisoner."
The time periods specified by the Agreement delineate a particularized period after which a defendant's right to speedy trial will be deemed to have been violated. Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971). See also Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976). The statute is "a prophylactic measure [designed] to induce compliance in the generality of cases." Commonwealth v. Fisher, 451 Pa. 102, 107, 301 A.2d 605, 607 (1973). The sanction for failure to comply with the time period specified in Articles III(c) and IV(c) is found in Article V(c):
". . . in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV, hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order, dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect." (Emphasis added.)
Thus, under the agreement, failure to try appellant within one hundred twenty days requires a reversal and a discharge unless the time limit was properly extended beyond May 4, 1974.
Article IV(c) of the agreement provides that
". . . for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance."
In this case, no extension was granted under the above section. Neither appellant, nor his counsel, nor the prosecution, ever requested "in open court" a continuance of the matter. In fact, no continuance could have been requested prior to May 4, 1974. A request for a continuance assumes that a trial has been scheduled. In this case, the trial was not scheduled at any time before May 4, 1974.
Article IV(c), however, is not the only provision of the Agreement permitting an extension beyond the one hundred twenty day limit. Article VI(a) of the Agreement must also be considered. That section provides that
". . . the running of said time period shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter."
In this case there is nothing in the record to indicate that the prisoner was "unable to stand trial," and there is nothing in the record to indicate that that issue was ever brought before the court, or decided by the court.
The prosecution, however, contends that the time period should have been tolled because the delay in commencing trial was the "fault" of defense counsel. The prosecution contends that the delay was the "fault" of defense counsel because defense counsel was on vacation for a period of one week from February 5 to February 12, 1974, and because defense counsel was in the hospital for one week from February 13 to February 20, 1974. We first note that this two-week period was ...