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filed: August 15, 1988.


Appeal from the Judgment of Sentence of August 11, 1987, in the Court of Common Pleas of Monroe County, Criminal Division, at No. 448-1985.


Mark L. Newman, Assistant Public Defender, Stroudsburg, for appellant.

Jane Roach, Assistant District Attorney, Allentown, for Com., appellee.

Kelly, Hoffman and Hester, JJ. Kelly, J., files a concurring statement.

Author: Hester

[ 378 Pa. Super. Page 31]

On July 10, 1986, a jury convicted appellant, Richard Reeves, and three co-defendants of possession of a controlled substance and conspiracy to possess a controlled substance with intent to deliver. The verdict culminated a two-year investigation by Pennsylvania State Police into drug trafficking in northeastern Pennsylvania. During their investigation, police utilized court-ordered pen registers*fn1 and wiretaps of the telephone lines of two of appellant's co-defendants and several other suspected drug dealers.

Following the denial of post-trial motions, the court sentenced appellant on August 11, 1987, to two concurrent two-to-four year terms of imprisonment and the payment of fines and costs. This appeal followed. We affirm.

Appellant first argues that the Commonwealth failed to try him within one hundred eighty days as required by Pa.R.Crim.P. 1100, and that this violation of Rule 1100 requires the charges against appellant to be dismissed. Police filed a complaint against appellant on March 24, 1985;

[ 378 Pa. Super. Page 32]

    trial commenced on July 7, 1986, four hundred seventy days later. In the interim, the Commonwealth had filed a petition for extension on October 28, 1985. Appellant argues that during the time between the filing of the complaint and the Commonwealth's petition to extend the rundate, only sixteen days, resulting from defense counsel's petition for an extension to file an omnibus pretrial motion, may be charged against appellant. Thus, appellant argues, the Commonwealth's petition to extend the rundate was untimely.

We agree with the trial court that the numerous pretrial motions filed by appellant and his co-defendants, which in turn triggered extensions within which to file various pretrial motions, and continuances granted to address pending discovery, delayed appellant's trial. The trial court stated:

In the present case, the Commonwealth filed its extension petition 218 days after the complaint was filed. Sixteen days are chargeable to Defendant for his granted petition for extension to file Omnibus Pretrial Motions. An additional 85 days expired from the time Defendant filed his Omnibus Pretrial Motions on August 8, 1985, until October 28, 1985, when the Commonwealth filed an extension petition. See Commonwealth v. Ludwig, No. 791 Criminal 1984, slip op., p. 11 (Monroe County, 1985) (omnibus motions may be viewed as an implicit request for a continuance which is excludable under Rule 1100). Thus, there is a net total of 101 days of the 218 chargeable to the Defendant, leaving the Commonwealth with 63 days in which to file for an extension.

Opinion in support of denial of post-trial motions, 6/18/87, at 5, 6. See also Commonwealth v. Mason, 358 Pa. Super. 562, 518 A.2d 282 (1986) (delay in commencement of defendants' trial resulted from filing of their pretrial motion to quash indictments; such delay was not judicial, but due to defendants' unavailability); accord Commonwealth v. Bond, 350 Pa. Super 341, 504 A.2d 869 (1986) (Spaeth, P.J., concurring) (implicit in defendant's pretrial motion was request that she not be tried until court ruled on motion,

[ 378 Pa. Super. Page 33]

    which thus amounted to a continuance); id. (Wieand, J., concurring) (defendant's pretrial motion rendered her unavailable for trial).

Any delay caused by the unavailability of a defendant is excluded from computation of the Rule 1100 period. Commonwealth v. Colon, 317 Pa. Super. 412, 464 A.2d 388 (1983). "The key inquiry is not the period of a defendant's unavailability, but the period of delay caused by that unavailability." Commonwealth v. Armstead, 359 Pa. Super. 88, 91, 518 A.2d 579, 581 (1986).

The chronology of the pretrial activity herein is complicated. Appellant filed an omnibus pretrial motion on August 5, 1985, after first receiving an extension of time until June 26, 1985, an additional omnibus pretrial motion on February 19, 1986, more than nine months after arraignment, and an amended omnibus pretrial motion on June 10, 1986, nearly two years after arraignment. There were issues concerning suppression of evidence, motions for discovery and consolidation, extensions of the period of discovery, briefing opportunities requested, multiple defendants involved and complex issues in controversy. On July 7, 1986, merely five days after the court issued its order and opinion disposing of the pretrial motions, the Commonwealth called the case for trial.

This case is similar to Commonwealth v. Atkinson, 364 Pa. Super. 384, 528 A.2d 210 (1987), wherein we held that trial could not have begun within one hundred eighty days due to the duplicity and complexity of pretrial motions filed by the defendant, and their attendant lengthy conferences and proceedings.

Accordingly, we find the trial court properly exercised its discretion, id., and reject ...

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