Com. v. DeMarco
| Citation | 481 A.2d 632,332 Pa.Super. 315 |
| Parties | COMMONWEALTH of Pennsylvania v. Norval "Happy" DeMARCO, Appellant. |
| Decision Date | 27 July 1984 |
| Court | Superior Court of Pennsylvania |
Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
This matter comes before this court on appeal from the judgment of sentence of April 19, 1983 by the Court of Common Pleas of Dauphin County. Following a jury verdict finding appellant guilty of theft by deception, the court below, in a modified sentence, ordered that the appellant serve a term of incarceration of ten to twenty-three months, imposed costs, a fine of five hundred dollars and directed that restitution be made in the amount of twenty-four hundred dollars. Timely post-trial motions were denied and this appeal followed.
On June 4, 1980, Mrs. Edith Shepler withdrew twenty-four hundred dollars from her savings account and handed it to a man who purported to be a bank examiner. Mr. William Conn, Vice-President and Security Officer of the bank, suspicious of the large withdrawal by a senior citizen, observed two men in the vicinity of the bank and contacted the police.
Detective James N. Negley, of the Derry Township Police Department, used eyewitness descriptions of the two men and an automobile license number to trace the perpetrators to Canada. After Shepler and Conn separately identified the appellant from a photographic array, a complaint was filed charging him with theft by deception and criminal conspiracy, on August 4, 1980. Three days later, the Derry Township Police Department initiated extradition proceedings against the appellant, culminating in an arrest on April 21, 1982, in Canada.
On May 18, 1982, the Commonwealth withdrew its first complaint and filed a second complaint which corrected a misspelling of the appellant's name and charged only theft by deception.
After a hearing in Canada, the appellant was extradited to the United States, and was tried on November 16, 1982. Following a jury verdict of guilty and a denial of timely post-trial motions, this appeal was filed.
Seven issues are raised in this appeal. The appellant first argues that the Commonwealth denied him his right to a speedy trial under Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A., which states in pertinent part:
(a)(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.
* * *
(d) In determining the period for commencement of trial, there shall be excluded therefrom:
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant....
The appellant alleges that he was not "unavailable for trial" during the period from the date the first complaint was filed, August 4, 1980, to the date of trial, November 16, 1982. We disagree, and hold that the appellant's right to a speedy trial was not violated.
A recitation of the key events in the history of this case is necessary:
June 4, 1980 Criminal offense occurs
August 4, 1980 Complaint filed charging Norwall "Happy"
DeMarco with theft by deception
and criminal conspiracy
August 7, 1980 Canadian police advises Commonwealth
to send extradition materials directly to
Peel Regional Police Department, Ontario
Canada
September 30, 1980 Commonwealth sends documents to Canadian
to February 5, 1981 authorities, who request two
separate amendments of the materials
January 1, 1981 (One hundred and eighty days have passed
from filing of complaint.)
February 5, 1981 Commonwealth inquires into status of
extradition and is advised of delay due
to backlog in Canadian work program.
March 2, 1981 Commonwealth receives copy of letter
from Canadian police to U.S. Consulate
in Toronto, advising that warrant had
been issued for arrest of the appellant.
March 17, 1981 U.S. Department of State contacts
Commonwealth with request for information
concerning the extradition. Commonwealth
requests of Canada that arrest
be delayed pending applicatiom with the
U.S. Department of Justice.
March 19 to early Commonwealth prepares and sends
April, 1981 documents to Washington D.C.
March 26, 1981 Commonwealth contacts Canadian
authorities to determine status of extradition
process.
June 8, 1981 to Commonwealth submits amended
August 14,1981 documents to Washington, D.C.
February, 1982 Commonwealth contacts U.S. Department
of Justice to determine status of
extradition process. Problems relating
to misspelling of the appellant's name
and to evidence charging a co-conspirator
are communicated to the Commonwealth.
Commonwealth suggests withdrawal
of first complaint and filing of
second, corrected complaint.
May 18, 1982 Original complaint withdrawn from
District Justice William Rathfon, second
complaint filed charging Norwall "Happy"
DeMarco with theft by deception.
June 15, 16, 18, Following a contested extradition
1982 hearing in Canada, the appellant is ordered
extradited.
August 11, 1982 Commonwealth returns the appellant to
Pennsylvania to stand trial.
November 16,17, After trial by jury, the appellant is
1982 found guilty of theft by deception. 1
Our review of the chronologue compels the conclusion that the one hundred eighty day limitation prescribed by Rule 1100 was tolled by the unavailability of the appellant from August 4, 1980 until August 11, 1982. "The defendant should be deemed unavailable for the period of time during which he contested extradition, or a responding jurisdiction delayed or refused to grant extradition." Pa.R.Crim.P., Rule 1100 Official Comment, 42 Pa.C.S.A.
Although Pennsylvania case law does not discuss the application of Rule 1100 to extradition proceedings with foreign countries, the case law discussion of extradition from foreign states is instructive. 2 It is generally held that Rule 1100 is tolled where the Commonwealth shows, by a preponderance of the evidence, that it has acted with due diligence in seeking extradition to bring the defendant to trial. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Commonwealth v. Clark, 256 Pa.Super. 456, 390 A.2d 192 (1978). Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been made to secure the defendant's attendance at trial. Id.; see also Commonwealth v. Johnson, 305 Pa.Super. 310, 451 A.2d 546 (1982). The matters of availability and due diligence "must be judged by what was done by the authorities rather than [by] what was not done." Commonwealth v. Williams, 284 Pa.Super. 125, at 132, 425 A.2d 451, at 455 (1981) (emphasis in original, citation omitted); see also Commonwealth v. Williams, 317 Pa.Super. 456, 464 A.2d 411 (1983) (); Commonwealth v. Singleton, 313 Pa.Super. 224, 459 A.2d 821 (1983) (); Commonwealth v. Fanelli, 292 Pa.Super. 100, 436 A.2d 1024 (1981) ().
In the instant case the Commonwealth initiated extradition proceedings within three days of filing its complaint against the appellant. This prompt procedure distinguishes the case from Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977), in which due diligence was found lacking when the Commonwealth failed to initiate extradition proceedings for more than one hundred eighty days. The record here reveals that the Commonwealth diligently pursued the matter first with the Peel Regional Police Department and eventually with the United States Department of State and Department of Justice. Every time that a modification or additional documentation was requested, the Commonwealth promptly complied.
The delay in the instant case was due, in part, to the extradition procedure which the Commonwealth chose to pursue. Initially, the Commonwealth applied directly to the Canadian authorities. As the Director of the Criminal Investigation Division, Dauphin County District Attorney's Office, testified, his office had conducted one prior successful extradition proceeding with Canadian authorities. 3 His reliance on that past successful proceeding was reinforced by the recommendation of the Canadian authorities that all documentation be sent directly to Canada. The Director explained that, in fact, the documents should have been sent to the United States Department of State for processing through diplomatic channels. 4
This scenario raises a novel question: whether due diligence may be found where the Commonwealth, in reliance upon past experience and the representations of officers of the foreign jurisdiction, pursues an international extradition through improper channels. Stated another way, we must consider whether the appellant's right to a speedy trial imposes a duty on the Commonwealth to correctly initiate its extradition process with a foreign nation.
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