Commonwealth v. Demby
Commonwealth v. Demby
Opinion of the Court
OPINION
In a criminal complaint filed on March 22, 1975, appellee, Earl Demby, was charged with robbery, assault, conspiracy and weapons offenses. Appellee was arrested on March 24, 1975.
On October 6, 1975 the Commonwealth filed a petition
In a jury trial, appellee was convicted of burglary, conspiracy and robbery. Motions for a new trial and arrest of judgment were denied, and appellee was sentenced to consecutive prison terms of seven to twenty years on the burglary charge, two and one-half to five years on the conspiracy charge, and seven to twenty years on the robbery charge.
In his appeal to the Superior Court, appellee contended, inter alia, that his Pa.R.Crim.P. 1100 rights were violated in that a reconsideration ruling cannot be construed to relate back to the date the original petition was filed so that the ruling would be within the Rule 1100 run date. The Superi- or Court agreed, reversed the trial court and dismissed the charges against the appellee. Commonwealth v. Demby, 264 Pa.Super. 438, 400 A.2d 165 (1979). The Commonwealth then sought review in this Court which was granted.
The Commonwealth now contends that the Superior Court erred in holding that the trial court lacked the power to reconsider its denial of the petition for extension of time where the denial is made after the Rule 1100 run date. The
There is a fundamental flaw in the Superior Court’s reasoning. To say that “the matter is closed” as of the denial of the petition effectively denies the lower court its inherent
Moreover, how can the matter be “closed” when the Commonwealth had the right to directly appeal the denial of the petition for extension? See Commonwealth v. Murray, 263 Pa.Super.Ct. 496, 398 A.2d 686 (1979). Had the Commonwealth exercised that procedure in the first place and the Superior Court reversed the lower court on appeal (which it would have done given its recomputation of the run date to October 9th, thus rendering the petition for extension timely), there is no question that the case would have been remanded and would have proceeded as if the petition had been granted originally. The Superior Court’s ruling would deprive the lower court of the opportunity to correct its own erroneous rulings (here it was an erroneous computation of time) and thereby force the Commonwealth to resort to the time consuming appellate process to obtain correction of the error. Thus, the concern of the Superior Court — the “interminable” extension of the proceedings — is heightened by their dubious and unfounded distinction between the grant of a petition for an extension of time at the outset and the grant of such petition following reconsideration of the original denial.
If a petition for reconsideration is to have any legal efficacy in the context of Rule 1100, a grant of a petition for reconsideration after the Rule 1100 run date must relate back to the date the petition for extension of time is filed.
The judgment of the Superior Court is reversed, and the judgments of sentence are reinstated. The case is remanded to the Superior Court for disposition of those issues preserved by appellee’s original appeal but not decided by the Superior Court.
. This petition was amended on October 15, 1975 with the trial court’s permission.
. A Rule 1100 “run date” is the 180th day after the criminal complaint is filed minus any exclusions as provided by Rule 1100(d).
. The courts were closed on January 15, 1976 because of Martin Luther King day, but the suppression hearing, which was reserved for the time of trial, began on January 16, 1976.
. Although the original Rule 1100(a)(2) run date was September 18, 1975, the Superior Court correctly found that, pursuant to Rule 1100(d), the continuances of April 2 to April 9, April 9 to April 16 and April 16 to April 23 were excludable delays.
. See Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970).
. 12 P.S. 1032 states in relevant part:
In any ... criminal . .. proceeding in which the court has heretofore been vested with the power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, any order, decree, judgment or sentence ... the court in addition ..., shall hereafter have the same power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, the order, decree, judgment of sentence for a period of thirty days subsequent to the date of entering of record the order, decree, judgment or sentence.... Provided, that all parties in interest including the district attorney in criminal cases, are notified in advance of such proposed alteration, modification, suspension, reinstatement, termination, amendment or rescission.
*513 This statute was repealed by Act of April 28, 1978, P.L. 202, No. 53 § 2(a) [1329]. 42 Pa.C.S.A. § 20002(a) [1329], and has been substantially reenacted by the Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 5505.
Dissenting Opinion
dissenting.
I dissent. Appellee was not brought to trial until 300 days after the commencement of proceedings against him, 120 days beyond the time permitted under Pa.R.Crim.Proc. 1100(a)(2). The Commonwealth has utterly failed to justify the period of delay of nearly eighty days during which its petition for reconsideration of the denial of its request for an extension was pending. It is axiomatic that, absent a stay or an express statute, a petition for reconsideration in no respect relieves the party seeking further review from proceeding within the allotted time. Cf. Commonwealth v. O’Shea, 465 Pa. 491, 350 A.2d 872 (1976) (Commonwealth failure to seek extension while appeal pending constituted inexcusable delay). Appellee, therefore, was properly granted relief, and the order of the Superior Court so holding must be affirmed.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, v. Earl DEMBY, Appellee
- Cited By
- 7 cases
- Status
- Published