Com. v. Genovese

Citation493 Pa. 65,425 A.2d 367
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Anthony GENOVESE, Appellee.
Decision Date04 February 1981
CourtUnited States State Supreme Court of Pennsylvania

William R. Lee, Christopher T. Powell, Peter T. O'Malley, Scranton, for appellee.



KAUFFMAN, Justice.

The Commonwealth appeals from an order pursuant to Pa.R.Crim.P. 1100(f) dismissing murder and related charges against appellee, Anthony Genovese, arising out of the death of a 23 month old infant. 1 The sole issue presented is whether the 180 day period mandated by Rule 1100 commences on the date of filing the first or the second criminal complaint when all charges contained in the first complaint have been dismissed at a preliminary hearing for failure to state a prima facie case, when there has been no improper effort by the Commonwealth to circumvent Rule 1100, and when the accused has been rearrested on the same charges. Because the trial court erroneously calculated the Rule 1100 run date from the filing of the first complaint, we reverse and remand for trial. 2

On Christmas morning, 1977, the Honesdale Ambulance Corps responded to an emergency call from the home of Larraine Forry and appellee, where they found Ms. Forry's 23 month old daughter, Christine, in an unconscious state. The child was taken immediately to the Community Medical Center in Scranton, where she died four days later as a result of a fractured skull. After a police investigation, appellee was arrested on March 24, 1978 and charged with murder, voluntary manslaughter, involuntary manslaughter, reckless endangerment, aggravated assault and endangering the welfare of a child.

The preliminary hearing commenced on April 3, 1978 and, after various delays and motions not here relevant, was scheduled to recommence on May 10, 1978. On May 3, 1978, however, the defense filed a motion to secure the attendance of Dr. Dominic J. DiMaio, an out-of-state witness. 3 The motion was denied the following day, whereupon defense counsel immediately petitioned the court for and received permission to depose Dr. DiMaio. 4 The deposition originally was scheduled for May 19, 1978. However, on May 9, 1978, the Commonwealth filed with this Court a Petition for Review in the Nature of a Writ of Prohibition seeking to prevent the taking of Dr. DiMaio's deposition. 5 We denied the Commonwealth's petitions on May 23, 1978, and the deposition was rescheduled for July 7, 1978.

In the interim, the original district justice resigned and another was specially assigned to conduct the preliminary hearing. On August 22, 1978, after hearing testimony for three days and following appellee's challenge to the sufficiency of the Commonwealth's evidence, the new district justice dismissed all charges for lack of a prima facie case and released appellee from bail. 6 It is thus clear from the record that appellee was not discharged at the preliminary hearing at the request or instigation of the prosecutor, but only because the Commonwealth failed to persuade the district justice that it had presented a prima facie case. There is no evidence of any attempt by the Commonwealth to evade the mandate of Rule 1100.

On September 11, 1978, a second complaint, containing charges identical to those previously dismissed, was filed before a third district justice, and appellee was arrested the next day. 7 Following a preliminary hearing, the district justice concluded that the Commonwealth had established a prima facie case. 8

On December 20, 1978, appellee filed a motion to dismiss all charges with prejudice pursuant to Pa.R.Cr.P. 1100(f), claiming that in excess of 180 days had passed since the filing of the original complaint. 9 The motion was granted on January 18, 1979, and this appeal by the Commonwealth followed. 10

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, --- Pa. ---, ---, 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). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

In Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) (plurality), this Court was confronted with the very issue now before us, and we expressly held that the 180 day period commences from the filing of a second complaint. In Cartagena, as here, all charges against the defendant were dismissed at the preliminary hearing for lack of a prima facie case and the defendant was discharged. Three days later, another complaint based on the same episode was filed, the defendant was rearrested, and after a second preliminary hearing, he was held over for trial. On these facts, we held that the Rule 1100 period ran from the filing of the second complaint: "Even though based on the same episode, the second criminal complaint ... was the one which commenced this prosecution. As such, appellant's trial was commenced within 180 days ..." 482 Pa. at 19-20, 393 A.2d at 357. 11

Appropriate computation of the 180 day period was further refined in Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979). Therein, a complaint was filed against the defendant, but the grand jury refused to indict. After obtaining additional evidence, the Commonwealth resubmitted the matter to a new grand jury and an indictment was returned. On these facts, this Court excluded from the Rule 1100 computation the time period between the refusal of the first grand jury to indict and indictment by the second grand jury. 12

Unlike the case before us, Johnson involved only one complaint, and in fact proceeded to trial without a second complaint ever being issued. 13 Here, once the first complaint was dismissed, it became a nullity for all purposes, including Rule 1100. As in Cartagena, supra, "the second complaint ... was the one which commenced this prosecution," 482 Pa. at 19, 343 A.2d at 357, and there is no evidence of a prosecutorial plan to avoid the mandate of the Rule. It follows, therefore, that the 180 day period must commence from the filing of the second complaint. 14

The result we reach has been followed consistently by the Superior Court 15 and is supported by the relevant provisions of the ABA Standards Relating to Speedy Trial:

2.2. When time commences to run.

The time for trial should commence running, without demand by the defendant, as follows:

(b) if the charge was dismissed upon motion of the defendant and thereafter the defendant was held to answer or charged with an offense, from the date the defendant was so held to answer or charged, as above....

ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, § 2.2(b) (Approved Draft, 1968). 16

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. Neither the language nor the spirit of Rule 1100 is inconsistent with the logical, common sense conclusion that the 180 days must run from the filing of the second complaint, the one which commenced this prosecution.

Accordingly, we reverse the order of the Court of Common Pleas and remand for trial.

ROBERTS, J., filed a dissenting opinion.

NIX, J., filed a dissenting opinion.

ROBERTS, Justice, dissenting.

For the reasons set forth in the opinion of Chief Justice Eagen in Commonwealth v. Brocklehurst, --- Pa. ---, 420 A.2d 385 (1980) (Eagen, C. J., joined by Roberts & Nix, JJ., dissenting), it must be concluded that this trial was not commenced within the 180-day period permitted under Pa.R.Crim.Proc., 1100(a)(2). Appellee moved to dismiss the charges 271 days after his initial arrest. Even excluding the twenty days between the dismissal of the first complaint and the filing of the second, see Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979), trial here would have been untimely.

As Chief Justice Eagen observed, "the cases have consistently attempted to effectuate the policies behind Rule 1100 which include the placing of limitations on 'disruption of employment, curtailment of associations, subjection to public obliquy, and creation of anxiety.' " Brocklehurst, supra, --- Pa. at ---, 420 A.2d at 390. As in Brocklehurst, here the majority "(fails) in (its) attempt to effectuate the policy underlying the rule because (it fails) to acknowledge that during the life of the first complaint an accused is confronted with the factors which the rule should limit." Id.

Unlike the approach of the majority here and in Brocklehurst, the approach of Chief Justice Eagen does not permit the prosecution to subject the accused to multiple, unsuccessful efforts to initiate charges with impunity. Instead, his approach, which excludes only that period between the dismissal of a first complaint and the filing of a second, properly gives...

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    ...a co-defendant and trial cannot be achieved within the mandatory period because of the delay caused thereby. In Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), the Supreme Court "Rule 1100 'serves two equally important functions: (1) the protection of the accused's speedy trial r......
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