Commonwealth v. Welsh

TAMILIA, Judge,

dissenting.

I respectfully dissent and would affirm on the Opinion of the trial judge.

The majority reverses because the holding by the trial judge that a previous motion to extend time-by the Commonwealth (November 16, 1987) had been erroneously granted, and thereby was a nullity, rendered the application of the December 31, 1987 amendment to Rule 1100 inapplicable. I disagree and would concur with President Judge James Walsh:

This case and the charges were pending before the Court on December 31,1987, when the rule was amended. The rule on which Defendant relies now gives the Commonwealth 365 days to bring the Defendant to trial. We find no violation of Rule 1100.

Slip Op., Walsh, J., pp. 2-3.

While there appears to be an element of unfairness in this ruling, it must be considered that on November 16, 1987, when the motion was presented, there was still opportunity to go to trial prior to the expiration date of November 20, 1987, under the previous grant of an extension of time to the Commonwealth. Had the motion judge, Judge Cottone, who granted the motion on December 2, 1987 as an uncontested motion, been aware it was contested, one could only conjecture as to his ruling since he would not have had available to him the rationale applied by Judge Walsh. Arguments which are rejected under one set of conditions could appear plausible under different circumstances. Under any circumstances, the case was still pending before the court on December 31, 1987 and, therefore, was subject to the amendment to Rule 1100 which went into effect at that time.

As to the other arguments proposed by appellant, they appear to be without merit and specious at best. I would affirm on the Opinion of the trial court.