Com. v. Carey
| Court | Superior Court of Pennsylvania |
| Writing for the Court | WIEAND |
| Citation | 313 Pa.Super. 20,459 A.2d 389 |
| Decision Date | 15 April 1983 |
| Parties | COMMONWEALTH of Pennsylvania v. James CAREY, Appellant. |
Page 389
v.
James CAREY, Appellant.
Filed April 15, 1983.
Page 390
[313 Pa.Super. 23] Randall E. Zimmerman, Mifflintown, for appellant.
Stewart L. Kurtz, Dist. Atty., Huntingdon, submitted a brief on behalf of Commonwealth, appellee.
Before WIEAND, BECK and MONTEMURO, JJ.
WIEAND, Judge:
James Carey was tried by jury and found guilty of burglary 1 and criminal trespass. 2 Post verdict motions were dismissed, and Carey was sentenced to a term of imprisonment for burglary only. On direct appeal, Carey contends (1) that he did not receive a speedy trial within the standards of Pa.R.Crim.P. 1100; (2) that the trial court erred in refusing motions for mistrial because of alleged prosecutorial misconduct during closing argument; and (3) that the trial court erred in giving a "missing witness" instruction to the jury. There is no merit in these arguments and, therefore, we affirm the judgment of sentence.
Page 391
Appellant was apprehended by police at or about 12:30 o'clock, a.m., on October 1, 1979, as he fled from a jewelry [313 Pa.Super. 24] store in the Borough of Huntingdon, Huntingdon County. A neighbor testified that she had seen an unidentified person enter the jewelry store through a window. A few minutes later, after police had arrived, she saw someone exit through the same window and run away. Appellant was apprehended by police in a yard adjoining the jewelry store by a policeman who gave chase after he observed appellant diving through the jewelry store window. Inside the store, police found burglary tools, pry marks on the safe and various merchandise in disarray.
A criminal complaint was filed against appellant later the same day. Under the speedy trial standards of Pa.R.Crim.P. 1100(b), the Commonwealth was required to commence trial on the charges against appellant on or before March 31, 1980. 3 Because trial did not begin until May 6, 1980, thirty-six days after the run-date, we must examine the record to determine whether there was time to be excluded from the computation of the 180 day period or whether the delay was otherwise to be excused.
On February 18, 1980, the date set for trial, no judge had been regularly assigned to Huntingdon County. The sole judge of the Court of Common Pleas had been defeated in a retention election at the November, 1979, general election and had vacated his office on January 6, 1980. An appointment to fill the vacancy was not made by the Governor until February 28, 1980. Senate confirmation followed on March 25, 1980; and on April 4, 1980, the Honorable Newton C. Taylor assumed the duties of office.
On February 18, 1980, the Honorable George Eppinger had been specially assigned to preside during criminal trials in Huntingdon County. On that date, appellant appeared without counsel and requested a continuance. In pertinent part, the following colloquy occurred:
[313 Pa.Super. 25] BY MR. KURTZ: Mr. Carey is in the Court, your Honor.
BY THE COURT: What is your first name?
BY THE DEFENDANT: James Patrick Carey.
BY MR. KURTZ: There was a preliminary hearing on this matter on October the 9th, 1979, at which time Attorney Alan Ellis of the Centre County Bar appeared on behalf of Mr. Carey. Subsequently, Mr. Ellis wrote to me requesting certain information and documents, which we supplied. I might show the Court a copy of the letter I received from Mr. Ellis. And then last month--I am sorry, on February the 7th I received this letter. Mr. Carey advises the Court Administrator that he has paid Mr. Ellis.
BY THE DEFENDANT: Not full, not in full. I am just waiting for the check to come back to pay him in full.
BY THE COURT: Well, Mr. Carey, your case is scheduled for trial this morning.
BY MR. KURTZ: Yes, sir.
BY THE COURT: Are you prepared to proceed?
BY THE DEFENDANT: No, I'm not. I don't have counsel. This is a last minute thing what happened. He told me he was going to pull out. I didn't know anything about it.
BY THE COURT: When did you find out?
BY THE DEFENDANT: A couple days ago.
....
BY THE COURT: Where is [your attorney]?
BY THE DEFENDANT: I don't know if he is in Israel or--he didn't say exactly. He said he would be out of the country until the 17th.
Page 392
BY THE COURT: Until when?
BY THE DEFENDANT: Until the 17th of next month.
BY THE COURT: What do you propose, Mr. Carey.
BY THE DEFENDANT: Well, I want to pay him. I have problems at home. I got a wife that is pregnant, pay the hospital bills, doctor bills and everything else.
[313 Pa.Super. 26] BY THE COURT: Yes, I can see that thirty-five hundred dollar attorney bill would be tough. What is the charge?
BY MR. KURTZ: Well, the Information charges two counts. Count 1 charges burglary and Count 2 charges criminal trespass. The Complaint alleges, "... on the 1st day of October at approximately 12:30 a.m. the Defendant entered and remained within the property of the Continental Jewelry Store in the Borough of Huntingdon." I might say that the Commonwealth's evidence would indicate that the Defendant was apprehended in the store.
BY THE COURT: Now, what is the date the Information was filed?
BY MR. KURTZ: The Information was filed on the 4th day of December.
BY THE COURT: What explains the delay between 10/1 and--oh, well, the preliminary hearing.
BY MR. KURTZ: The Complaint was filed October 1.
BY THE DEFENDANT: If you want a waiver of the 180-Day Rule, I will sign it. Give it to me. That is no problem.
BY THE COURT: Well, that's only part of the problem, Mr. Carey. The other part of the problem is that Huntingdon County has difficulty at the present time with the availability of judges and I am here now and would like to try this case. It sounds to me like your attorney never intended to be here anyway. If he left the country, even if you paid him the $2,000, he wouldn't be here?
BY THE DEFENDANT: Well, I don't have any control over him.
BY THE COURT: I understand that. Neither do we. You should have gotten a commitment from him so that he had entered an appearance.
....
BY THE COURT: We have been advised, Mr. Carey, that the 180 days will expire on March the 29th, 1980. You say we do not know when the trial will be held?
BY MR. KURTZ: We do not. The Court Administrator has been trying, but at this point in time we have no [313 Pa.Super. 27] judge who has agreed or consented to give us any available time for the trial of cases. We have a judge coming one day for arraignment.
BY THE COURT: How long are you willing to waive it for, Mr. Carey?
BY THE DEFENDANT: For as long as you want; as long as you get it straightened out.
BY THE COURT: He could waive it.
BY THE DEFENDANT: I'd like at least until my wife delivers the child.
BY THE COURT: When is that going to be?
BY THE DEFENDANT: Sometime within the next two weeks.
BY THE COURT: I was thinking more in terms of waiving it for 90 days and then, if--so that on the 90th day after today you would be in exactly the same position you are today.
BY THE DEFENDANT: Well, you know, I am--
BY THE COURT: The Commonwealth has only about 40 days in which to try it. Are you willing to do that?
BY THE DEFENDANT: Yes.
BY THE COURT: Is that alright?
BY MR. KURTZ: Yes.
BY THE COURT: In other words, if the case was scheduled for trial any time within 90 days from today, plus whatever there is left, that makes about 130 days. Are you willing to go that far?
BY THE DEFENDANT: As long as I can get two weeks until--
BY THE COURT: But you are entitled to be tried within 180 days.
Page 393
BY THE DEFENDANT: I understand that.
BY THE COURT: And we are ready to try you and in Huntingdon County; they have a particular problem because there is no judge here to try you on a regular basis, which means that they have to have visiting judges. I am [313 Pa.Super. 28] here, a jury is here and we are ready to go, except you are not ready you say.
BY THE DEFENDANT: And the witnesses aren't here either.
BY THE COURT: Who is?
BY THE DEFENDANT: I don't know if the police office [sic] and whoever is involved.
BY THE COURT: We would pick a trial day and schedule it for trial. That's the way we operate.
....
BY THE DEFENDANT: I am willing to waive it until--
BY THE COURT: Is 90 too much, 60 alright or what?
BY MR. KURTZ: 90, I think would be--
BY THE COURT: All right.
Following this colloquy, an order was entered as follows:
NOW, February 18, 1980, the Defendant having appeared in open Court and having represented to the Court that he had paid a $1,500.00 retainer fee to Alan Ellis and that Alan Ellis did not appear today for the trial of the case, and it further appearing to the Court that the Defendant is expected to pay a balance of $2,000.00 to Alan Ellis, which he hopes to pay from his IRS return, and the Defendant making a motion to continue the case for a period of 90 days and agrees that 90 days from this date he would be in exactly the same position that he would be in this date with regard to the running of the time in Rule 1100,
The Court being concerned there is no regular sitting judge in Huntingdon County and that the county has experienced some difficulty in obtaining judes [sic] for trials...
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Com. v. Belmonte, 1414
...and the reasonable inferences drawn therefrom, it becomes clear that appellant suffered no prejudice. See Commonwealth v. Carey, 313 Pa.Super. 20, 31-32, 459 A.2d 389, 394-95 (1983). Since the insanity defense necessarily involves an in-depth exploration of the appellant's mental condition,......
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Com. v. Hook
...Page 389 State v. Brazil, 269 N.W.2d 15 (Minn.1978) (where woman arrested for selling narcotics in cafe, passenger in her car outside [313 Pa.Super. 20] could not be arrested but could be detained for Consequently, given the circumstances confronting Officer Stiger after arresting Mr. Viola......
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Com. v. Smith
...decision, it will be accorded prima facie validity. See Commonwealth v. Green, 503 Pa. 278, 469 A.2d 552 (1983); Commonwealth v. Carey, 313 Pa.Super. 20, 459 A.2d 389 (1983). The validity of this waiver is additionally supported by the fact that unlike the contested first waiver of July 12,......
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Com. v. Underwood
...omitted). Id. at 495, 317 A.2d at 237, quoting Commonwealth v. Moore, 453 Pa. 302, 305, 309 A.2d 569, 570 (1973). Commonwealth v. Carey, 313 Pa.Super. 20, 32-33, 459 A.2d 389, 395 We find nothing in the present record to indicate that the young adults were available to the Commonwealth as w......
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Com. v. Belmonte, No. 1414
...and the reasonable inferences drawn therefrom, it becomes clear that appellant suffered no prejudice. See Commonwealth v. Carey, 313 Pa.Super. 20, 31-32, 459 A.2d 389, 394-95 (1983). Since the insanity defense necessarily involves an in-depth exploration of the appellant's mental condition,......
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Com. v. Hook
...Page 389 State v. Brazil, 269 N.W.2d 15 (Minn.1978) (where woman arrested for selling narcotics in cafe, passenger in her car outside [313 Pa.Super. 20] could not be arrested but could be detained for Consequently, given the circumstances confronting Officer Stiger after arresting Mr. Viola......
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Com. v. Underwood
...omitted). Id. at 495, 317 A.2d at 237, quoting Commonwealth v. Moore, 453 Pa. 302, 305, 309 A.2d 569, 570 (1973). Commonwealth v. Carey, 313 Pa.Super. 20, 32-33, 459 A.2d 389, 395 We find nothing in the present record to indicate that the young adults were available to the Commonwealth as w......
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Com. v. Smith
...decision, it will be accorded prima facie validity. See Commonwealth v. Green, 503 Pa. 278, 469 A.2d 552 (1983); Commonwealth v. Carey, 313 Pa.Super. 20, 459 A.2d 389 (1983). The validity of this waiver is additionally supported by the fact that unlike the contested first waiver of July 12,......