Commonwealth v. Kripplebauer

HOFFMAN, Judge: The Commonwealth contends that the lower court erred in discharging appellee because he was denied a speedy trial guaranteed him by the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101, Art. IV(c). We disagree and, accordingly, affirm. On November 9, 1981, appellee was brought to Pennsylvania to face a conspiracy charge. Pursuant to the Agreement on Detainers, the Commonwealth was required to bring appellee to trial within 120 days, or before March 9, [319] 1982. On December 10, 1981, the Commonwealth petitioned to consolidate appellee’s case with those of two co-defendants and inadvertently listed appellee’s rúndate as April 4, 1982.1 On December 17, the lower court set a tentative trial date of January 19, 1982. However, on December 28, the lower court held a preliminary hearing and subsequently granted appellee thirty days in which to file pre-trial motions. On January 19, the Commonwealth’s motion to consolidate was denied because the charges against appellee’s co-defendants were dismissed. The lower court denied the Commonwealth’s request to set the trial for January 29, just one day after the termination of appellee’s thirty day period for filing pre-trial motions, noting the request was unreasonable and gave the court no time to consider any motions filed. . The lower court, relying on the Commonwealth’s original, albeit mistaken, rúndate, then scheduled the trial for March 30.2 On March 12, appellee filed a motion to dismiss because he had not been tried within the requisite 120 days. On March 16 the Commonwealth, having renewed charges against the co-defendants, again petitioned for consolidation. The petition was granted, but trial was postponed until May 3 because of the unavailability of counsel for one co-defendant. On March 31, the Commonwealth petitioned to extend the time for trial, again, mistakenly pursuant to Pa.R.Crim.P. 1100. Finally, on July 9, the lower court, finding that appellee had not been tried within 120 days of his entering Allegheny County, dismissed the conspiracy charge. The Commonwealth appeals his dismissal. The Detainer Agreement provides: [320] In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the-arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. 42 Pa.C.S.A. § 9101 Art. IV(c). The Act also states that: In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter. 42 Pa.C.S.A. § 9101 Art. VI(a). The Commonwealth maintains that the lower court erroneously dismissed the charge because appellee had been “unable to stand trial” during the thirty day period he requested to file pre-trial motions3 and on the requested trial .date one day later, thus the rúndate was extended at least to April 9, 1982, making the Commonwealth’s petition to extend timely. We find this contention meritless. Our Supreme Court has held the 120-day period tolled by a defendant’s consenting to waive his speedy trial rights and by his own requests for continuance. Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) (defendant agreed to a continuance six days before the 120-day rúndate and, although the issue was not addressed, requested and was granted six continuances). Here, however, appellee neither voluntarily waived his speedy trial rights by his own actions, nor consented to their waiver. Rather, appellee exercised his right, pursuant to Pá.R.Crim.P. 307, in requesting thirty days after his preliminary hearing to file pre-trial motions. At no time did appellee request a “continuance” that would have necessitated setting back the proposed trial date. Defendants’ [321] motions to remand for and request a new preliminary hearing have not been treated by our Court as requests for continuances. Commonwealth v. Goodman, 260 Pa.Superior Ct. 266, 393 A.2d 1256 (1978); Commonwealth v. Delauter, 257 Pa.Superior Ct. 510, 390 A.2d 1354 (1978). In Goodman, the Court reiterated its express disapproval in Delauter of courts’ considering a “remand for a preliminary hearing as a request for a continuance,” Goodman, supra, 260 Pa.Superior Ct. at 277, 393 A.2d at 1261, and noted “[i]f this is true, then every pre-trial application that causes delay in trial is, in effect, an application for continuance.” Delauter, supra, 257 Pa.Superior Ct. at 512, 390 A.2d at 1355. Because a request for a preliminary hearing is part of the pre-trial proceedings to which a defendant is entitled, and is not considered a “continuance,” we conclude that a request for thirty days to file pre-trial motions is equally part of pre-trial proceedings, and must be similarly treated.4 Accordingly, we find that appellee’s exercising his right to file pre-trial motions does not amount to a request for a continuance and does not affect his ability to stand trial. We therefore affirm the lower court’s dismissal of appellee pursuant to the Agreement on Detainer.5 Affirmed. POPOVICH, J., files a concurring opinion. ROWLEY, J., files a dissenting opinion. Footnotes [1] The Commonwealth evidently calculated a 180-day rúndate pursuant to Pa.R.Crim.P. 1100 instead of a 120-day rúndate provided for in the Detainers Act. [2] Had the Commonwealth advised the lower court of the correct rúndate under the Detainers Act, the court could have set a trial date before the March 9, 1982 deadline. We, however, agree with the lower court that neither the court nor appellee was required to independently calculate the rúndate but both were entitled to rely on the official court papers. [3] The Commonwealth’s own motion to consolidate prompted appellee’s request for thirty days to review the voluminous pre-trial records of all three defendants and file appropriate pre-trial motions. [4] Because we find appellee’s request for thirty days not a "continuance,” the Commonwealth’s reliance on Commonwealth v. Mallon, 279 Pa.Superior Ct. 350, 421 A.2d 234 (1980) (appellant voluntarily waived speedy trial rights in exchange for a return to a prison he preferred in New Jersey), is misplaced. [5] Because we hold that appellee did not request a continuance that tolled the 120-day period, tolling the period for the one day following the thirty days, when the Commonwealth requested trial, would not make the Commonwealth’s petition to extend timely. Therefore, we need not address this contention.