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COMMONWEALTH PENNSYLVANIA v. DANIEL KEVIN PALMER (05/11/89)

filed: May 11, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL KEVIN PALMER, APPELLEE



Appeal from Order of the Court of Common Pleas, Criminal Division, of Wyoming County, No. 87-249.

COUNSEL

Brendan J. Vanston, District Attorney, Tunkhannock, for the Com., appellant.

Paul P. Ackourey, Scranton, for appellee.

Wieand, Melinson and Hoffman, JJ. Hoffman, J., concurs in the result.

Author: Wieand

[ 384 Pa. Super. Page 380]

This is an appeal by the Commonwealth from an order of the trial court which dismissed criminal charges on the grounds that trial had not been commenced within the time allowed by Pa.R.Crim.P. 1100. The order dismissing prosecution was entered after Rule 1100 had been amended on December 31, 1987 and while the parties were awaiting a decision from the trial court following a hearing on defendant's motion to suppress evidence. For the reasons hereinafter set forth, we are constrained to reverse.

On October 2, 1987, a criminal complaint was signed in which Daniel Palmer was accused of possession of a controlled substance and possession with intent to deliver. A preliminary hearing was held on October 22, 1987, and the charges were returned to court. After an information had been filed, Palmer waived arraignment and filed, on January 20, 1988, an omnibus pre-trial motion. In this motion he sought to suppress physical evidence seized by the police and statements which he had made to the police. He also requested the court to (1) dismiss the charge of possession with intent to deliver, and (2) compel the Commonwealth to disclose the identity of the informant who had led the police to him. Palmer's omnibus pre-trial motion was heard by the trial court on March 17, 1988, but it was not decided. When a decision was not forthcoming, the Commonwealth moved, on May 12, 1988, for an extension of time within which to commence trial. The trial court denied the Commonwealth's motion, holding that it had been filed too late. It was untimely filed, the court held, because it had not been filed until 223 days after the filing of the complaint. The Commonwealth thereafter petitioned for and was granted reargument, and Palmer filed a motion to dismiss the prosecution. On June 30, 1988, the trial court again denied the Commonwealth's request for an extension and

[ 384 Pa. Super. Page 381]

    granted Palmer's motion to dismiss. The Commonwealth appealed.

After the complaint had been signed and before one hundred and eighty (180) days had expired thereafter, Rule 1100 was amended by the Supreme Court on December 31, 1987. The amended rule became effective immediately. It provided in subparagraph (a)(3) that where a defendant is not incarcerated but free on bail, trial shall commence within three hundred and sixty-five (365) days after the filing of the complaint.*fn1 If the amended rule is applicable to the prosecution against Palmer, then the trial court erred when it dismissed the charges against him. The time allowed for trial by the amended rule had not expired.

Pa.R.Crim.P. 2 directs that the rules of criminal procedure shall be construed "as nearly as may be in consonance with the rules of statutory construction." The trial court refused to apply the amended rule because it believed that to do so would violate the proscription of 1 Pa.C.S. § 1926 against retroactive application. Concerning retroactivity, the Supreme Court has said:

Addressing our initial inquiry to the retroactivity issue, there can be no doubt that, absent clear language to the contrary, statutes are to be construed to operate prospectively only. Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1926; Glancey v. Casey, 447 Pa. 77, 288 A.2d 812 (1972); Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960). It is manifest, however, that this principle becomes pertinent only after it has been determined that a proposed operation of a statute would indeed be retrospective. In this regard, our courts have held that a statute does not ...


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