Com. v. Ardolino

• Decision Date: 03 September 1982
• Citation: 304 Pa.Super. 268,450 A.2d 674
• Parties: COMMONWEALTH of Pennsylvania v. Jerry ARDOLINO, Appellant.
• Court: Pennsylvania Superior Court

Page 674

450 A.2d 674

304 Pa.Super. 268

COMMONWEALTH of Pennsylvania v. Jerry ARDOLINO, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 9, 1981.

Filed Sept. 3, 1982.

Donald R. Calaiaro, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before CERCONE, President Judge, and BROSKY and CIRILLO, JJ.

CERCONE, President Judge:

The instant case presents us with a direct appeal from judgments of sentence entered against appellant following his conviction on charges of receiving stolen property and resisting arrest. ¹

On November 1, 1978 two color television sets were unlawfully removed from the premises of the West Liberty Athletic Association in the City of Pittsburgh. A certain Matthew Smith a/k/a Atom Ant was later implicated in the crime. Smith told Pittsburgh police that he had sold the televisions to appellant. On February 23, 1979, with Smith in tow, Pittsburgh police Detectives Wolfe and Parsons, accompanied by uniformed officers of the Mt. Oliver Borough Police Department, proceeded to appellant's Mount Oliver residence to question him about the television sets, and to recover the same. The peace officers approached appellant in his garage and questioned him about the televisions and about his acquaintance with Smith. Appellant denied any knowledge of "Matthew Smith," but when the police pointed to Smith, who had remained seated in their car, appellant acknowledged knowing him as "Atom Ant." He then volunteered the information that when he purchased the sets from Smith he knew them to have been stolen, and that he subsequently sold them to two other persons. The police immediately read him his Miranda rights and placed appellant under arrest. Detectives Wolfe, Parsons and appellant then drove around Allegheny County in an attempt to locate the stolen televisions. An hour and a half after his arrest appellant was taken to the Pittsburgh Public Safety Building where he was once again read his Miranda rights. Appellant executed a "rights waiver form" and wrote out his responses to various questions the police put to him. Additionally, a conversation between appellant and the police concerning the crime was tape recorded with appellant's permission. During this conversation appellant again admitted purchasing the televisions from Smith with the knowledge that they were stolen.

On the same day as his initial arrest a complaint was filed against appellant formally charging him with receiving stolen property and conspiracy. ² Based on this complaint appellant was re-arrested on February 27, 1979. He was held for court on the charges by the local magistrate on March 1, 1979. Upon the motion of the Allegheny County district attorney the motions judge of the criminal division of common pleas court entered an order for nolle prosequi as to these charges on April 25, 1979. Neither appellant nor his attorney was notified of the Commonwealth's intention to present the nolle prosequi motion, nor did either of them attend the hearing on the motion. The basis for the motion was the district attorney's belief that the February 23 complaint contained a substantive defect which could not be cured pursuant to Rule 150 of the Pennsylvania Rules of Criminal Procedure.

A second complaint alleging the charge of receiving stolen property, but not the conspiracy charge, was filed May 4. Eighteen days later Detectives Wolfe and Parsons, again accompanied by uniformed Mt. Oliver police officers, went to appellant's home to execute the new arrest warrant. Appellant, aided by his brother, resisted this arrest, but the peace officers were able to take him into custody nonetheless. With the approval of the district attorney and the magistrate this second complaint was withdrawn on May 30, 1979. The record before us does not show whether appellant or his counsel agreed to this withdrawal.

On June 1, 1979 a third complaint was filed against appellant. This complaint charged him not only with receiving stolen property but with resisting arrest as well. ³ Appellant was arrested yet again on June 19, and arraigned. A preliminary hearing was held on June 29, 1979 where appellant was held for court on both counts. The district attorney subsequently issued an information against appellant on both counts. Pre-trial motions to dismiss for violation of Rule 1100 and to suppress appellant's statements to the police were timely filed and heard on the date the case was called to trial, September 25, 1979. The court found that appellant had volunteered his initial confession to the police, that they properly read him his Miranda rights, and that he thereafter knowingly and intelligently waived those rights, and thus denied the suppression motion. On the Rule 1100(f) motion to dismiss the court ruled that the Commonwealth had 180 days to bring appellant to trial from the date of the third complaint, that those 180 days had not yet elapsed, and denied the motion. For the reasons hereinafter more fully set out we now vacate the judgment of sentence and discharge appellant on the receiving stolen property charge.

Appellant's first allegation of error, and the one we find dispositive, implicates two rules of criminal procedure: the first--Rule 150--rather lightly litigated, and the second--Rule 1100--considerably more so. See Pa.R.Crim.P. 150, 1100.

As noted in the Comment to Rule 1100, the Rule was instituted pursuant to the Pennsylvania Supreme Court's decision in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). See Pa.R.Crim.P. 1100, Comment. The purpose for its institution was "to more effectively protect the right of criminal defendants to a speedy trial." Commonwealth v. Hamilton, supra at 308, 297 A.2d at 133. Rule 1100 now requires the Commonwealth to bring an accused to trial within 180 days or risk his discharge with prejudice unless it can show adequate reasons for its failure to do so. See Pa.R.Crim.P. 1100(c), (d) & (f).

Rule 150 of the Pennsylvania Rules of Criminal Procedure mandates that unless a defendant waives, either expressly or by failing to object timely, a substantive defect in a complaint, citation, summons or warrant, he shall be discharged, but without prejudice to the Commonwealth's right to file a new complaint. However, if the defect is only "informal" it may be amended at any time. See Pa.R.Crim.P. 150(a) & (b).

Appellant contends that because the initial complaint was withdrawn by the Commonwealth by virtue of its motion for nolle prosequi, the time for trial under Rule 1100 continued to run from the date of the filing of the initial complaint. As authority he cites Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976). In the alternative, appellant argues that the dismissal of the first complaint was improper under Rule 150, and therefore the Rule 1100 run-date should have been computed from the first complaint and not from the third. He cites Commonwealth v. Brennan, 264 Pa.Superior Ct. 206, 399 A.2d 739 (1979) for this proposition. The Commonwealth counters with the argument that Whitaker is not controlling because it is the basis for the withdrawal of the complaint by the Commonwealth which must be looked to and not the mere action of withdrawal or motion for nolle prosequi itself. It contends, that here there was no clear evidence of a prosecution attempt to skirt Rule 1100 as there was in Whitaker. Further, the Commonwealth posits the cases of Commonwealth v. Mumich, 239 Pa.Superior Ct. 209, 361 A.2d 359 (1976) and Commonwealth v. Brocklehurst, 266 Pa.Superior Ct. 335, 404 A.2d 1317 (1979) ⁴ as controlling.

This Court held in Commonwealth v. Mumich, supra, that the one hundred eighty day period applicable under Rule 1100(a)(2) begins to run anew with the filing of a subsequent complaint after the dismissal of the initial one if, (1) the earlier complaint was properly dismissed, and (2) the record does not reveal evidence of a prosecution attempt to circumvent Rule 1100. See Commonwealth v. Mumich, supra . See also Commonwealth v. Braithwaite, 253 Pa.Superior Ct. 447, 385 A.2d 423 (1978); Commonwealth v. Brocklehurst, 266 Pa.Superior Ct. 335, 404 A.2d 1317 (1979), aff'd 491 Pa. 151, 420 A.2d 385 (1980). But see, Commonwealth v. Brennan, supra. Since deciding Mumich, this Court has consistently applied the two-prong test developed there, and elucidated in Braithwaite, 253 Pa.Superior Ct. at 450, 385 A.2d at 424-425. ⁵ Thus, if the complaint was improperly dismissed or if the record reveals a prosecutorial attempt to deny a defendant his speedy trial rights then the period in which the trial of the defendant must have begun will be calculated from the date of the filing of the first complaint. The Commonwealth must, therefore, be able to demonstrate both the proper dismissal of the initial complaint and its intent to comply with Rule 1100 if it is to have the benefit of computing the run-date from the date of the filing of the subsequent complaint.

Despite the dictum in Commonwealth v. Brennan, 264 Pa.Superior Ct. at 209, 399 A.2d at 740, that Whitaker stands for the proposition that the entry of an order of nolle prosequi upon motion of the prosecution does not toll the running of Rule 1100, no case has so held. ⁶ The holding of Whitaker is rather that where the Commonwealth has sought to evade Rule 1100 by moving that a complaint be nolle prossed, the time for trial will be computed from the date of the filing of the first complaint. Moreover, all the cases since Commonwealth v. Mumich, supra, have the two-pronged test first utilized there. ⁷ This is true even of the only other case where there was a withdrawal by the Commonwealth. In that case, Commonwealth v. Sires, 284 Pa.Superior Ct. 50, 424 A.2d 1386 (1981), we applied the Mumich-Braithwaite test to a situation where the initial complaint was summarily withdrawn by the arresting officer without any impartial judicial review. Based on clear precedent,...