DocketNumber： Appeal, No. 187
Citation Numbers： 234 Pa. Super. 111, 338 A.2d 610, 1975 Pa. Super. LEXIS 1510
Judges： Cercone, Hoffman, Jacobs, Price, Spaeth, Voort, Watkins
Filed Date： 4/22/1975
Status： Precedential
Modified Date： 11/13/2024
Opinion by
This is an appeal by the Commonwealth from an order of the Court of Common Pleas, Criminal Division, of Allegheny County, dismissing a four count bill of indictment for violation of The Controlled Substance, Drug, Device and Cosmetic Act because of the failure of the Commonwealth to provide a bill of particulars to the defendant-appellee within the time limit provided in Rule 221 of the Pennsylvania Rules of Criminal Procedure.
The appellee was scheduled for trial on February 7, 1974. On January 25, 1974, he filed and served on the Commonwealth a Request for a Bill of Particulars. On January 31, 1974, the appellee moved to dismiss the indictments due to the Commonwealth’s failure to furnish the Bill of Particulars. After a hearing the court granted the appellee’s motion and the indictment was dismissed. The Commonwealth then petitioned the court to vacate its dismissal of the indictment which it refused to do after a hearing. The Commonwealth’s petition was denied on February 6, 1974. The Commonwealth then appealed
The appellee claims that since the Commonwealth appealed from the Order of February 6, 1974 rather than the original order of January 31, 1974, we should refrain from considering the appeal since an appeal from the January 31, 1974 Order was not taken within thirty (30) days. While the appellee is correct in his assertion that the Commonwealth should have appealed the January 31, 1974 Order we will allow the appeal since the appeal was taken within thirty (30) days of the original order. We might also point out that had the appeal not been taken within thirty (30) days of the original order we would be required to hold that it was not timely filed.
Rule 221 of the Pennsylvania Rules of Criminal Procedure provides in part that:
“(a) A bill of particulars should be furnished by the attorney for the Commonwealth within two (2) days after service upon him of a copy of a written request by a defendant. . .
“ (b) Upon failure of the attorney for the Commonwealth to furnish a bill of particulars after service of a request upon him, the defendant may make written application for relief to the court within ten (10) days after such service.”
The Commonwealth argues that the two-day time period in which it had to provide the bill of particulars under the rule is unreasonable and that the word “should”, set forth in Section (a) of the rule, can be interpreted in such a way so as to provide the Commonwealth additional time to file the bill if the circumstances warrant such additional time. It should be noted that in the instant case the appellee did not present his motion requesting dismissal of the indictment to the court until January 31, 1974 which was six (6) days after he had filed his request for it. We also recognize that appellee’s trial was scheduled for February 7, 1974, and thus it was
Finally, we must also note that Section (c) of the rule in question states that the court may take whatever action “it deems necessary in the interests of justice” when an application for relief is made by a defendant in circumstances such as this one. In this case the court felt that the only relief that it could afford the defendant for the Commonwealth’s failure to provide the Bill of Particulars was to dismiss the indictment. Since the language in Section (c) provides such a broad mandate to the court below on this matter we are constrained to hold that only a flagrant abuse of that court’s discretion on such a matter would be grounds for a reversal. We find no such abuse of discretion here. As the court below pointed out, in criminal cases there is really very limited relief which a court can afford to a defendant in a situation where the Commonwealth has violated some rule other than dismissing the charges lodged against the defendant.
The court below held that the use of “should” and not “shall” gave him no discretion. If we were to interpret the world “should” under the rule not to have the same
We are not unmindful of the problems created for prosecutors by the two-day time limit of Rule 221. Such a limit may indeed be unreasonable when applied to specific situations. However, until the rule is changed, we are bound to give effect to its provisions, including the portion of the rule which provides the trial court with its powers of relief.
The order of the court below is affirmed.