Com. v. Bowser

Decision Date14 October 1983
Citation465 A.2d 1001,318 Pa.Super. 571
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Keith R. BOWSER.
CourtPennsylvania Superior Court

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

Michael Kelly, Pittsburgh, for appellee.

Before HESTER, McEWEN and JOHNSON, JJ.

McEWEN, Judge:

We here review an appeal of the Commonwealth from an order of the Common Pleas Court of Allegheny County which dismissed certain charges against appellee by reason of the determination of the trial court that the trial of appellee had not commenced in accordance with the mandate of Rule 1100. We reverse.

The proceeding in which this appeal has been taken bears the caption of Allegheny County Criminal Action No. CC 7907254A, for which the factual chronology is as follows:

January 15, 1979 Appellant allegedly obtained from Joseph and Joan Harsch, as a result of a conspiracy with Cora Bowser, the sum of $12,000 which he diverted to his own use.

February 15, 1979 Appellant allegedly obtained from Joseph and Joan Harsch, as a result of a conspiracy with Cora Bowser, the sum of $3,000 which he diverted to his own use.

April 23, 1979 Appellant is charged by the City of Pittsburgh Police Department with theft of service from the Hyatt House Hotel and conspiracy with Cora Bowser to commit such theft.

The Pittsburgh Police Department commences on that same date an unsuccessful search for appellant and his accomplice upon the Hyatt House charges.

May 13, 1979 The Pittsburgh Police Department requests the police department of Phoenix, Arizona, to search for appellant.

June 8, 1979 The office of the Sheriff of Maricopa County, Arizona, reports it is unable to locate appellant.

June 13, 1979 Pittsburgh City Police Department Detective G. Diulus testifies before District Justice W. Little that appellant cannot be found.

November 9, 1979 Appellant is returned in custody to Pennsylvania after his apprehension in Phoenix, Arizona, in late October.

November 14, 1979 The instant criminal complaint charging the theft of $12,000 by deception, the theft of $3,000 by deception and conspiracy to commit such theft is executed and lodged against appellant.

January 22, 1980 District Attorney of Allegheny County files an Information charging the specific offenses of theft by failure to make required disposition of the $12,000, theft by failure to make required disposition of the $3,000 and conspiracy to commit such theft.

April 3, 1980 The appellant makes Application to dismiss certain of the counts pursuant to Rule 1100. The court orders that the hearing upon the Application to dismiss be held at the time of the scheduled trial date of April 8, 1981.

April 8, 1980 The trial judge conducted a hearing upon the Application for dismissal pursuant to Rule 1100 and directs that (1) the count charging theft by failure to make disposition of $12,000 be dismissed and (2) the count of conspiracy to commit such theft be amended so as to eliminate reference to the theft of the $12,000.

The foregoing chronology omits but one factor. It seems that the victims of this criminal behavior, Joseph and Joan Harsch, had proceeded on April 25, 1979, to sign a Private Criminal Complaint which, although approved in advance by the Assistant District Attorney pursuant to the Rules of Criminal Procedure, was presented to and signed by a District Justice as a Private Complaint, without the benefit of police attention to the alleged criminal activity either prior or subsequent to the filing of the complaint. Nor does it appear in the record that the District Justice as issuing authority issued a summons or warrant of arrest for service by a constable; in fact, Pittsburgh City Detective Diulus testified that his search for appellant through the weeks preceding June 13, 1979, included inquiries to various agencies, including the National Crime Information Center, all of which produced the response that no warrants for appellant were outstanding. It would appear from the record that there was absolutely no further action toward processing this Private Criminal Complaint, once it was signed by the private complainant on April 25, 1979, until after appellant was apprehended and returned to the Commonwealth. At that point, on November 14, 1979, the private complainant, Joseph Harsch, signed a formal statement of withdrawal upon the face of the Private Complaint before proceeding on that same date to execute a Police Criminal Complaint charging the three offenses which are the subject of scrutiny in this appeal.

Appellee urges that the 180 day period within which the Commonwealth was required to commence the trial began on April 25, 1979, at least insofar as concerns the charge expressed in the Private Complaint filed on that date. The hearing judge concluded that the Commonwealth had not shown any evidence that the Private Complaint of April 25, 1979, triggered any effort of any type to locate or arrest appellant on that specific charge since all police efforts to locate appellant were inspired by the Hyatt House charges. The court concluded that, therefore, the Commonwealth failed to show such "due diligence" or such "unavailability of the accused", with respect to the Private Complaint, that would entitle the Commonwealth to exclusion of any period after the date of the Private Complaint. As a result of the finding that the Commonwealth was not entitled to any exclusion, the court determined that the 180 day period, within which the Commonwealth was required to commence the trial of appellant upon the charge specified in their Private Complaint, expired on October 23, 1979.

We note that the opinion of the distinguished Judge Henry R. Smith, Jr. is a very persuasive expression of a quite valid rationale for the conclusion he reached, especially in view of the fact that he did not have at the time of his decision the benefit of the subsequent thoughts expressed upon this issue by the Pennsylvania Supreme Court in 1981. The Court during that year declared in Commonwealth v. Genovese, 493 Pa. 65, 69-72, 425 A.2d 367, 369-71 (1981):

Rule 1100 'serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society,' Commonwealth v. Brocklehurst, 491 Pa. 151, 153-54, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308, n. 4 (1980).

* * *

* * *

So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

The Court further stated in Commonwealth v. Polsky, 493 Pa. 402, 407-08, 426 A.2d 610, 613 (1981):

Common sense, the public interest, and justice demand that a defendant not be permitted the windfall of an absolute dismissal under Rule 1100 when he voluntarily absents himself from this jurisdiction, refuses to return, and due diligence by law enforcement authorities fail to secure his return.

Appellee asserts, of course, that he was not accorded the prompt trial required by Rule 1100(a)(2) which provides:

(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

It is clear that a condition precedent to the application of the rule and the 180 day countdown is that "the complaint [be] filed". Our study of the record reflects that this condition precedent was not met for the following reason:

Pennsylvania Rule of Criminal Procedure 134 1 indicates that a magistrate must determine, after review, that the complaint is in satisfactory form and, if so, must:

(1) sign the complaint;

(2) issue a summons or warrant of arrest as the case may be.

While the district justice as issuing authority accepted the complaint for filing and signed it, he did not proceed to completion of the filing process since he apparently failed to issue a summons or warrant of arrest.

We conclude, therefore, that since the complaint was not filed, the form of complaint signed by the private complainant was a nullity. As a result, the subsequent complaint actually signed, filed and processed on November 14, 1979, is not overshadowed by Rule 1100 considerations.

Our holding does not conflict with the thoughtful opinion of our distinguished colleague, Judge Edmund B. Spaeth, in Commonwealth v. Kellie, 275 Pa.Super. 106, 418 A.2d 634 (1980), nor with the notions expressed in his concurring opinion in Commonwealth v. James, 258 Pa.Super. 157, 392 A.2d 732 (1978). The Kellie decision adopted the concurring thought of James 2 in holding that the 180 day countdown commences when the issuing authority signs the complaint and not when process issues. It must be emphasized, however, that the factual situation of both Kellie and James included the fact that the issuing authority not only signed the complaint but also provided for the issuance of process, while we here review a case where process never issued. We further hasten to note that the...

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2 cases
  • Com. v. Warnes
    • United States
    • Pennsylvania Superior Court
    • August 2, 1985
    ...a complaint has been filed, the commencement of the 180-day period begins with the filing of a complaint. See Commonwealth v. Bowser, 318 Pa.Super. 571, 465 A.2d 1001 (1983); Commonwealth v. Warren, 313 Pa.Super. 390, 459 A.2d 1285 (1983). This principle is equally applicable where a privat......
  • Com. v. Lomax
    • United States
    • Pennsylvania Superior Court
    • April 3, 1984
    ...complaint is filed, the 180 day period commences upon the issuance of process, by summons or warrant of arrest. Commonwealth v. Bowser, --- Pa.Super. ---, 465 A.2d 1001 (1983). The Commonwealth argues that the instant case is controlled by Commonwealth v. Iaderosa, 276 Pa.Super. 439, 419 A.......

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