Com. v. Leatherbury

• Decision Date: 15 November 1979
• Citation: 409 A.2d 431,269 Pa.Super. 194
• Parties: COMMONWEALTH of Pennsylvania v. Michael LEATHERBURY, Appellant.
• Court: Pennsylvania Superior Court

Page 431

409 A.2d 431

269 Pa.Super. 194

COMMONWEALTH of Pennsylvania v. Michael LEATHERBURY, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 15, 1978.

Filed Aug. 17, 1979.

Reargument En Banc Denied Nov. 15, 1979.

Leonard Sosnov, Elaine DeMasse, Asst. Public Defenders, Philadelphia, for appellant.

Eric B. Henson, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before PRICE, HESTER and HOFFMAN, JJ.

PRICE, Judge:

On May 6, 1977, appellant was found guilty after a non-jury trial of possessing an instrument of crime generally ¹ and simple assault. ² Following denial of post-verdict motions and imposition of sentence, this timely appeal was filed. In addition to alleged insufficiency of the evidence, appellant asserts the Commonwealth's failure to comply with Pa.R.Crim.P. 1100(a)(2), ³ which mandates that a defendant be tried on or before the 180th day after a complaint's filing. Because we find appellant's Rule 1100 claim to be meritorious, we vacate the judgment of sentence and order appellant discharged, rendering it unnecessary to address appellant's sufficiency argument.

A written complaint in this case was filed on April 22, 1976. The first date set for the preliminary hearing was April 26, 1976, at which time the defendant failed to appear, and a bench warrant was issued. The warrant was withdrawn on May 3, and bail was set. On May 10, 1976, the complainant failed to appear due to an emergency. A continuance from May 19 to June 9 is not explained on the record. The period from June 9 to June 16 was a continuance because of defense counsel's inability to attend. Finally, on June 16, 1976, the prosecution was dismissed because the complaining witness did not appear.

A second complaint charging the same crimes and arising from the same incident was filed on October 28, 1976. Subject thereto, appellant was rearrested on November 4, 1976, and a preliminary hearing followed on November 10, 1976. On November 29, 1976, a written motion to dismiss under Rule 1100(f) was filed. That motion was denied by Judge Blake on December 14, 1976, when he ruled that for Rule 1100 purposes, time would be calculated from the date of the filing of the second complaint. In conjunction therewith, Judge Blake extended the run date to May 2, 1977, (180 days after the second complaint's filing would have lapsed on April 26, 1977) due to the dismissal of the original charges and the second complaint. ⁴ In fact, appellant was not tried until May 6, 1977.

It is appellant's position that the Commonwealth could have pursued his conviction under the first complaint, in spite of the complaining witness's failure to appear. Ultimately, that witness's testimony was not relied upon at the second preliminary hearing or at trial. Appellant thus argues that Rule 1100 should be calculated from the first complaint's filing and that he is therefore entitled to discharge.

In Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1976), a complaint was filed charging the appellant with fornication and bastardy. Because the complainant's signature did not appear on the appellant's copy of the complaint, the lower court dismissed the case at the preliminary hearing stage. Although under Pa.R.Crim.P. 150 the complaint could have been amended and the appellant's discharge avoided if the court deemed the defect an informal one, the appellant's acquiescence in dismissal when the lower court Sub silentio rendered the defect substantive, caused us to hold the dismissal proper. This court stressed a second area of concern when we said, "Moreover, the record does not reflect any impropriety by the district attorney's office in this case to avoid the mandate of Rule 1100." Commonwealth v. Mumich, supra, at 212, 361 A.2d at 361. We therefore ruled in Mumich that the Commonwealth was required to try the appellant on or before the 180th day following the filing of the second complaint.

Subsequent to the Mumich case, we have several times treated this issue and reaffirmed the Mumich criteria. When determining whether a first or second complaint controls the Rule 1100 calculation, we are mindful of two considerations: (1) was the first complaint properly dismissed; and (2) does the record reveal an intent by the prosecution to evade the Rule. Commonwealth v. Weitkamp, 255 Pa.Super. 305, 386 A.2d 1014 (1978); Commonwealth v. Braithwaite, 253 Pa.Super. 447, 385 A.2d 423 (1978). Applying these criteria in the instant case, we find that the dismissal was not proper, and that the Commonwealth's effort to evade Rule 1100 is apparent on the record.

According to the record in this case, the Commonwealth's alleged inability to present a case against appellant at the preliminary hearing, in the absence of the complaining witness, was the cause for the first complaint's dismissal fifty-five days after it was filed. Only after the passage of an additional one hundred thirty-four days did the Commonwealth file the second complaint. The Commonwealth did not present the complaining witness's testimony at the preliminary hearing or at trial. Nor was any explanation offered for its failure to do so. Clearly, the prosecution was not hindered by the absence of that testimony, since the testimony of the arresting officers that it did present was sufficient to hold appellant over for court and to convict him. Under the circumstances here presented, there appearing no explanation for the Commonwealth's failure to bring forth later the "crucial" witness, and there appearing no explanation for the Commonwealth's failure to pursue the case until the 189th day after the first complaint was filed by lodging a second one, we find that the record demonstrates the Commonwealth's obvious intent to circumvent the Rule. Accordingly, we calculate the Rule 1100 run date from the first complaint's filing date.

Absent any Commonwealth extensions under Pa.R.Crim.P. 1100(c) or any exclusions under Pa.R.Crim.P. 1100(d) due to appellant's unavailability, the Commonwealth was thus required to try appellant on or before October 19, 1976. There were no Commonwealth extensions. Further, even assuming for purposes of this discussion that appellant should be charged with two periods of continuance in the conduct of the first preliminary hearing because of his failure to appear seven days and his counsel's unavailability seven days appellant was entitled to discharge when he requested it on November 29, 1976. Even if those fourteen days could be viewed as actually having delayed trial commencement, ⁵ trial would have been required to commence on or before November 2, 1976. Because this did not occur, appellant was entitled to discharge.

Judgment is vacated and appellant is ordered discharged.

HESTER, J., files a dissenting opinion.

HESTER, Judge, dissenting:

Appellant and an accomplice were apprehended while in the process of conducting a robbery, at knife point, on the streets of Philadelphia. The incident occurred in full view of two police officers. The original complaint was filed April 22, 1976.

Following several continuances, the prosecution was dismissed due to the fact that the victim failed to appear. Appellant nor his counsel objected to said continuance. The second complaint was filed on October 28, 1976. Appellant thereafter was tried non-jury and convicted on May 6, 1977. Appellant did not testify nor present any evidence in his own behalf.

The majority has ruled that appellant should have been tried within 180 days from the date of the first complaint; that the requirements of Rule 1100 have not been met and appellant should be discharged.

I dissent.

In Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1976), the original complaint was filed October 9, 1973. The preliminary arraignment was held May 18, 1974 at which time the complaint was dismissed as the result of the failure to provide defendant with a copy of complaint bearing the signature of the prosecutrix. On June 20, 1974 a second complaint was filed, trial was held thereon and defendant convicted. In dismissing the Rule 1100 argument based upon the assertion that trial should have been had upon the first complaint this Court held:

"Under circumstances that defendant made no objection to dismissing of complaint on basis that signature of prosecutrix-affiant did not appear on the defendant's copy, defendant acquiesced in dismissal rather than amendment to remedy the defect and could not thereafter attempt to take advantage of the ruling he in no way opposed. Pa.R.Crim.P., Rules 132, 140, 150."

and

"Under circumstances that no objection was voiced to dismissal of complaint charging fornication and bastardy on basis that signature of prosecutrix-affiant did not appear on the defendant's copy, magistrate acted within his discretion in dismissing the complaint and discharging defendant, and the 270-day period for trial commenced to run from filing of new complaint. Pa.R.Crim.P., Rule 1100; 18 Pa."

The court further held that there was no impropriety by the Commonwealth to avoid the mandate of Rule 1100. In Commonwealth v. Lowe, 255 Pa.Super. 78, 386 A.2d 144 (1978) defendant was arrested September 18, 1975. The charges were dropped October 29, 1975 due to the fact the arresting officer was unavailable. A second complaint was filed December 30, 1975 upon which defendant was convicted. Upon appeal, this Court focused on two considerations in determining whether Rule 1100 should run from the first or subsequent complaint in a given case: first, whether the first complaint was properly dismissed, and second, whether the record reflected any attempt by the district attorney's office to avoid the mandate of Rule 1100.

In disposing of the first item, the Lowe court held at page 146:

"In the instant case, there appears of record no objection by appellant or his counsel to the dismissal of the charges. Clearly, appellant remained subject to rearrest and new prosecution. Commonwealth v. Hetherington, 460...