Appeal from Order of the Court of Common Pleas, Criminal Division, of Clearfield County, No. 85-200-CRA.
Joseph A. Curcillo, III, Assistant District Attorney, Clearfield, for Com., appellant.
David M. McGlaughlin, Philadelphia, for appellee.
Wieand, Kelly and Popovich, JJ.
[ 370 Pa. Super. Page 174]
The issue in this appeal is whether delay caused by a frivolous motion to dismiss on double jeopardy grounds is
[ 370 Pa. Super. Page 175]
excludable for purposes of computing the one hundred and twenty (120) days within which a retrial must commence after a first trial has ended in a mistrial.*fn1 The trial court declined to exclude any time on account of such delay and dismissed drug charges because a second trial had not been commenced within one hundred and twenty (120) days after the first trial ended in a mistrial. The Commonwealth appealed. We reverse.
On March 2, 1985, a criminal complaint was filed charging Stanley A. Wills with making delivery of a controlled substance, to wit, cocaine. When the case was tried on March 17 and 18, 1986, the jury was unable to agree upon a verdict. The trial court, therefore, declared a mistrial. On April 7, 1986, Wills filed a motion to dismiss further prosecution on grounds that a second trial would violate principles of double jeopardy. The trial court found the motion "wholly frivolous" and dismissed it on May 8, 1986. Apparently unaware of the filing of the Supreme Court decision in Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) (filed April 23, 1986),*fn2 defense counsel appealed to the Superior Court on May 29, 1986. Later, however, on July 2, 1986, an enlightened defense counsel discontinued the appeal.
The Commonwealth, on August 12, 1986, filed a petition in the trial court to extend the time within which to commence trial so as to permit the second trial to take place in September, 1986. The defendant filed an answer in which he alleged that more than one hundred and twenty (120) days had already expired and that the Commonwealth, therefore, had failed to exercise due diligence. The trial court agreed with defendant's contention, refused the Commonwealth's request for an extension, and dismissed the
[ 370 Pa. Super. Page 176]
charges. The court reasoned that because of the Supreme Court decision in Commonwealth v. Brady, supra, the order of May 8, 1986 was interlocutory and not appealable. Therefore, the court concluded, defendant's pending appeal in the Superior Court was an inadequate excuse for the Commonwealth's failure to try defendant at the court's regular trial term in June, 1986. See: Pa.R.App.P. 1701(b)(6).*fn3 By this reasoning, the trial court determined that the one hundred and twenty (120) day period for commencement of a new trial had run uninterrupted from March 18, 1986, the date of the mistrial, until July 20, 1986, when it expired. Because the extension petition had not been filed prior thereto, the trial court held, the Commonwealth had failed to exercise due ...