No. 248 January Term, 1978, Appeal from the Order of the Superior Court, No. 654, October Term, 1976, affirming the Court of Common Pleas, Criminal Trial Division, Philadelphia County, No. 524 to 527, July Term, 1973 and No. 610 to 613.
Arthur L. Gutkin, Lafayette Hill, Walter L. McDonough, Ardmore, for appellant.
Robert B. Lawler, Chief, Appeals Div., Lee Kaplan, Philadelphia, for appellee.
Appellant, Lloyd Manley, was convicted by a jury in the Court of Common Pleas of Philadelphia County of three counts of conspiracy and four counts of manufacture, delivery or possession with intent to deliver a controlled substance. Post verdict motions were filed and denied. The Superior Court affirmed the judgment of sentence. Commonwealth v. Manley, 252 Pa. Super. 77, 380 A.2d 1290 (1977) (Hoffman and Spaeth, JJ., dissenting). We granted allocatur on June 9, 1978.*fn1
Appellant originally was brought to trial in October 1973. Due to illness of the trial judge, however, a mistrial was declared on October 29, 1973. After numerous delays, appellant's second trial commenced on April 11, 1975. In this appeal, appellant maintains that he is entitled to a discharge under Pa.R.Crim.P. 1100 ("Rule 1100") because the Commonwealth failed to retry him within 90 days of the date of the mistrial order. We agree and vacate the judgment of sentence.
In October 1973, when the mistrial was declared, Rule 1100(e) provided:
A new trial shall commence within a period of ninety (90) days after the entry of an order by the trial court or an appellate court granting a new trial.*fn2
Appellant contends that the time constraints of Rule 1100(e) apply to a new trial required by reason of the declaration of a mistrial.*fn3 The Commonwealth argues, on the other hand, that Rule 1100(e) applies only when a new trial is ordered following post-verdict motions or appeal on the theory that "the declaration of a mistrial is not 'an order . . . granting a new trial.'" Although perhaps technically correct, the Commonwealth raises a distinction without a substantive difference. Adoption of the Commonwealth's narrow interpretation of Rule 1100(e) would carve an unfair and illogical gap in Rule ...