No. 79 October Term, 1977, Appeal from the Judgment of Sentence of the Honorable John M. Wajert, Judge of the Court of Common Pleas of the Fifteenth Judicial District (Chester County) in Criminal Proceedings No. 860 C 1975.
John R. Merrick, Public Defender, Harry W. Farmer, Jr., Assistant Public Defender, West Chester, for appellant.
James Curtis Joyner, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 130]
The instant appeal arises from appellant's conviction, following a trial by jury, of possession of a controlled substance and possession with intent to deliver a controlled substance. Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-113(a)(16) & (30) (1977). The controlled substance was heroin and appellant received a sentence of 11 1/2 to 23 months in prison. There is no quarreling with the sufficiency of the Commonwealth's evidence; appellant sold four bags of heroin to an informant in the presence of an undercover narcotics agent, Shirley Dows. Agent Dows paid appellant forty dollars for the drugs and noted that appellant had approximately twenty more bags of heroin in his possession at that time. Appellant's assignments of
[ 256 Pa. Super. Page 131]
error are: (1) The Commonwealth failed to bring him to trial within 180 days from the filing of the complaint; (2) The court erred in not permitting a particular question to be asked of prospective jurors on voir dire; and (3) The court erred in permitting the Commonwealth to offer testimony concerning its unsuccessful efforts to locate its missing witness, informant Diane Lazur. Finding no error in any of these matters, we will affirm.
The complaint in the instant case was filed on April 23, 1975 and, following a preliminary hearing and indictment, appellant was initially brought to trial on September 10, 1975. The Commonwealth had just begun presenting its case in chief when a mistrial was declared on appellant's motion. Trial was then rescheduled for Monday, October 20, 1975, the one hundredth and eighty-second day from the filing of the complaint, but only the fortieth day from the date of the mistrial declaration. The defendant on that date filed a motion to dismiss pursuant to Pa.R.Crim.P., Rule 1100(f) and the Commonwealth filed a petition for an extension of time pursuant to Rule 1100(c), alleging the previous mistrial as the reason for its inability to bring appellant to trial within 180 days. In addition, the Commonwealth asserted no petition was necessary because the Commonwealth had 120 days following the mistrial to retry appellant. Pa.R.Crim.P., Rule 1100(e)(1). Appellant argued that the Commonwealth's petition must be denied because it was not filed until the one hundredth eighty-second day following the complaint, to which the Commonwealth responded that Monday, October 20th was deemed to be the one hundredth eightieth day because, otherwise, the last day of the period would fall on a Saturday.*fn1 The court granted the Commonwealth its extension, denied appellant's motion to dismiss, and the case proceeded to trial the following day.
[ 256 Pa. Super. Page 132]
We are persuaded that the Commonwealth did not have to file a petition for an extension, because it brought appellant to trial within 120 days from the date of the first, aborted trial. Rule 1100(e)(1) provides:
"When the trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial."
Obviously, the rule only establishes when a new trial must commence; it does not attempt to define what constitutes an "old trial." Under appellant's interpretation of the rule, for which he cites no authority, a "new trial" can only occur when a previous trial went to a verdict which was overturned for one reason or another. We do not believe such a narrow interpretation of the scope of the rule is warranted. First, for the purpose of Rule 1100, trial had commenced on September 10, 1975, and it is not logical to hold that a subsequent event which caused a mistrial eradicated the fact of the trial's commencement as if it never existed. Second, the scheduling problems which follow the granting of a mistrial are not substantially greater than those which follow the granting of a new trial when no appeal is taken. Finally, applying Rule 1100(e)(1) to mistrial would not create the gaping loophole in Rule 1100 that the Supreme Court refused to afford to the use of nolle prosequis in Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976). The principal difference is that, subject to the court's approval, nolle prosequis may be voluntarily taken by the Commonwealth despite the defendant's objection. Pa.R.Crim.P., Rule 314. That is not the case with mistrials which, on the contrary, may be granted only on defendant's motion or on motion of court, despite the Commonwealth's ...