Charles Jay Bogdanoff, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Jane Greenspan, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., took no part in the consideration or decision of this case. Roberts, J., files a concurring opinion in which Manderino, J., joins. Pomeroy, J., joins in the opinion of the Court and files a separate concurring opinion in which Nix, J., joins.
Appellant, Clinton Jones a/k/a Clinton Dupree, was tried by a judge and jury and found guilty of murder in the first degree, robbery and criminal conspiracy in connection with the death of Otis Johnson. Post-verdict motions were denied and on May 12, 1975, appellant was sentenced to life imprisonment in a state correctional institution for the conviction of murder in the first degree, with a concurrent sentence of not less than ten years nor more than twenty years on the robbery conviction, and a suspended sentence on the criminal conspiracy conviction. This appeal from the conviction of murder in the first degree followed.*fn1
Appellant first argues that the charges and indictments against him must be dismissed and he must be discharged because of the Commonwealth's failure to bring him to trial within two hundred seventy days of the filing of the complaint, pursuant to Pa.R.Crim.P. 1100(a)(1). We do not agree.
Pa.R.Crim.P. 1100(a)(1) provides:
"(a)(1) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed."
The Comment to Rule 1100, when discussing the method of counting, provides:
"It is intended that the number of days set forth in paragraphs (a)(1) and (a)(2) be calculated as prescribed
by the Act of November 25, 1970, P.L. 707, No. 230, as amended by the Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 P.S. § 1908."
Section 1908 of the Statutory Construction Act, supra, provides:
"When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title (relating to publication for successive weeks) and section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation." (Emphasis supplied.)
In the instant case, a written complaint against appellant was filed on May 7, 1974. Appellant's trial was commenced on Monday, February 3, 1975. The two hundred and seventieth day was Saturday, February 1, 1975.
Applying § 1908 of the Statutory Construction Act, supra, Saturday, February 1 and Sunday, February 2, 1975, must be "omitted" from the computation. Therefore, appellant's trial commenced within the time limit as set forth in Pa.R.Crim.P. 1100(a)(1).
Appellant next argues that the court below erred in denying his requested point for charge that voluntary manslaughter was a permissible verdict. We agree.
In Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), this court required: "that henceforth a defendant under indictment of murder will be entitled upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter." (Opinion in support of affirmance by Mr. Justice Nix, joined by Mr. Justice Eagen, now Mr. Chief Justice, and Mr. Justice O'Brien.)
In the instant case, appellant's trial began on February 3, 1975, nine months after the ...