Com. v. Martin
| Decision Date | 29 November 1982 |
| Citation | 452 A.2d 238,306 Pa.Super. 108 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. Kenneth MARTIN. |
| Court | Pennsylvania Superior Court |
David M. McGlaughlin, Asst. Dist. Atty., Norristown, for Commonwealth, appellant.
Michael Marino, Norristown, for appellee.
Before WICKERSHAM, BROSKY and WIEAND, JJ.
This case involves a Commonwealth appeal from an order of the Honorable William T. Nicholas, dated September 29, 1981, dismissing the criminal charges against Kenneth Martin pursuant to Pa.R.Crim.P. 1100. 1 For reasons set forth hereinafter, we reverse and remand for proceedings consistent with this opinion.
On May 8, 1981 a preliminary hearing was held before the District Justice Donald Riehl, King of Prussia, Montgomery County at which hearing Lillian Wolfberg gave the following sworn testimony:
Q. Mrs. Wolfberg, where do you live?
A. 241 Murray Drive, King of Prussia.
....
Q. Directing your attention to May 24th, 1979, did something unusual occur at your apartment that day?
A. Yes, that is the day that the apartment--my mother was staying with us at the time.
Q. What is your mother's name?
A. Her name is Fanny Chait.
Q. And how old is your mother?
A. She is past ninety now but she was eighty-eight years of age at the time.
....
Q. When you left your apartment that morning who remained there, if anyone?
A. My mother.
Q. And she was alone?
A. She was alone. She was supposed to have gone home that afternoon and then she stayed in the apartment to pack her belongings and she was supposed to be taken home that afternoon.
....
Q. Now, sometime that morning did you have occasion to call home, your home?
A. Yes, we did call about eleven o'clock.
....
Q. Did you go home?
A. Yes, immediately after the phone call.
Q. And when you went home what did you observe?
A. My mother, I will never forget the way she looked and the hurt and what they did to her.
Q. How did she look?
A. She was in the state of shock. Her hands were swollen because she tried to release herself. She was tied up with the TV cord and she tried to release herself and as a result she had torn every blood vessel in her wrist and she was shaking and the place was in shambles. The entire apartment was in shambles and it was the most shocking thing I have ever observed.
....
Q. You indicated things were missing. What did you find missing?
....
A. Everything that I had in the way of sterling; everything that I had in the way of jewelry. Being in the business, my husband has given me some beautiful things that had a lot of sentiment. I had a lot of things given to me by my grandmother that were irreplaceable and other things people and the family had given me, things that were irreplaceable.
Q. Did you estimate the total value of your loss of the things taken?
....
A. Anywhere between forty and fifty thousand dollars, maybe more.
Martin was charged in separate bills of information with robbery, burglary and criminal conspiracy along with simple assault and recklessly endangering another person. On September 15, 1981 a hearing was held at the Montgomery County Courthouse before the Honorable Anthony J. Scirica at which point Steven T. O'Neill, Esquire, assistant district attorney related to the court the following facts:
MR. O'NEILL: Thank you, Your Honor.
....
The offenses are alleged to have occurred on May 24, 1979. A Criminal Complaint was drawn up against the Defendant and filed on June 8, 1979. The Defendant was arrested by the Tredyffrin Township Police Department in Chester County, on June 8, 1979, but not on our Complaint, on the Complaint from Chester County burglaries.
At that time, the Defendant was granted bail. He made bail on June 9, 1979, and that was the last that was ever seen of the Defendant until March 20, 1981, at which time he waived extradition from Texas. He was transported back to the Commonwealth on March 27, 1981, by the Chester County Sheriffs.
....
From my calculations, Your Honor, the 180th day from the date the Complaint was filed on June 8, 1979, would have been December 5, 1979. It will be the Commonwealth's allegations in a petition to be filed that the Defendant was, in fact, unavailable from June 9, 1979, to March 20, 1981, and he was then physically in the Commonwealth on March 27, 1981.
The 180th day from March 20, 1981, is September 16, 1981, and the 180th day from March 27, 1981, is September 23, 1981. With both of those dates in mind, the Defendant's trial was scheduled 15 days after arraignment, so as to give him time for discovery to be provided and also for any further Omnibus Pre-Trial Motions on behalf of the Defendant to be filed by Mr. Marino.
The case was scheduled for trial today, September 15, 1981. The Commonwealth is prepared to proceed with trial today.
Record at 2-5 (emphasis added).
Trial did not commence, however, on September 15, 1981 because defense counsel was engaged in a trial in the Eastern District of Pennsylvania. After further discussion between court and counsel, Judge Scirica continued the case until September 30, 1981. (Record at 9.)
Defense counsel became available and the matter was called to trial before Judge Nicholas on September 28, 1981 at which time he heard a petition to dismiss under Pa.R.Crim.P. 1100(f). At the conclusion of the hearing on September 29, 1981, Judge Nicholas entered an order of dismissal. The lower court concluded that the Rule 1100 rundate was September 24, 1981, and, consequently, since the case was called for trial four days later dismissed the charges.
The defendant stipulated at the hearing on the Motion to Dismiss that the Commonwealth had exercised due diligence in attempting to locate him and that he was 'unavailable' for purposes of Rule 1100(d)(1), for the entire time from June 8, 1979, the date of the Complaint, to March 20, 1981, the date of his waiver of extradition. [N.T. 5, 9/29/81]
The precise issue thus presented is at what point does the mandatory period in which to commence trial under Pa.R.Crim.P. 1100 begin to run?
The Commonwealth contends that it should begin to run on March 27, 1981, the date on which the defendant was actually returned to Pennsylvania. The defendant contends, and, for reasons which will be more fully explained later, this Court held, that this time calculation must begin with the defendant's waiver of extradition on March 20, 1981. Since the Commonwealth never filed a Petition to Extend the Time for Trial under Pa.R.Crim.P. 1100(c), this difference of seven days in fixing the starting point for the Rule 1100 calculation becomes critical.
The Court concluded that the Commonwealth had 180 days from March 20, 1981, the date of the waiver of extradition or until September 16, 1981, in which to bring the defendant to trial. This was by virtue of the defendant's unavailability up to the point of the waiver of extradition. The additional eight days, from September 15 to September 22, during which defense counsel was engaged in another trial in Federal Court, must be excluded due to his unavailability. [Rule 1100(d)(1) ]. Thus, the outside 'run-date' for Rule 1100 was September 24, 1981. The Commonwealth must either have brought the defendant to trial by September 24, 1981, or filed a Petition to Extend the Time for Trial under Pa.R.Crim.P. 1100(c). It did neither. Regrettably, the Court was therefore compelled to dismiss the charges.
Justice Kauffman, speaking for the supreme court, recently stated that:
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, n. 4, 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.
....
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.
Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-70, 371 (1981).
In Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), the supreme court held that in order to avail itself of an exclusion, under the speedy trial rule, of periods of delay for which defendant or his attorney should be deemed responsible, the Commonwealth has a burden of proving, by a preponderance of evidence, the unavailability of the defendant or his attorney and due diligence on the part of the prosecution in attempting to locate and apprehend the defendant.
The Commonwealth submits and we agree that in any fugitive situation there are two discernible periods of unavailability. One is the period prior to location of the defendant and the second period of unavailability is after his location is known but prior to his subsequent return to the state. Each period provides a specific exclusion under Pa.R.Crim.P. 1100(d)(1) of which...
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