Com. v. Maxwell

• Decision Date: 04 August 1986
• Citation: 513 A.2d 1382,355 Pa.Super. 575
• Parties: COMMONWEALTH of Pennsylvania v. Eric MAXWELL, Appellant.
• Court: Pennsylvania Superior Court

Page 1382

513 A.2d 1382

355 Pa.Super. 575

COMMONWEALTH of Pennsylvania v. Eric MAXWELL, Appellant.

Superior Court of Pennsylvania.

Argued May 20, 1986.

Filed Aug. 4, 1986.

Spero T. Lappas, Harrisburg, for appellant.

William A. Behe, Chief Deputy Dist. Atty., Harrisburg, for Com., appellee.

Before CIRILLO, President Judge, TAMILIA and HESTER, JJ.

TAMILIA, Judge:

This is an appeal from judgment of sentence entered after a jury found appellant guilty of first degree murder, robbery, and simple assault. The same jury further determined that appellant's sentence for the first degree murder conviction would be life imprisonment. The court then imposed a life sentence with an additional two to five years imprisonment on the remaining counts.

The lower court accurately summarized the pertinent facts as follows:

On March 15, 1984, an unmasked gunman entered the Thrift Drug Store located on South 29th Street in Harrisburg and demanded money from the cashier, Shavona Mitchell. The cashier placed the cash drawer in a paper bag and handed the package to the gunman. The gunman departed from the store and walked along the front of the store toward the Weis Market, located adjacent to the store. Spencer W. Arnold, Jr., a security guard employed by the Thrift Drug Store was summoned by the clerk and he immediately gave chase to the gunman. Arnold apprehended the gunman and started to walk him back to the drug store. Approaching the store, the gunman grabbed Arnold, threw him against the fence, pulled out a gun and shot him.

The gunman ran to his car and drove from the Weis Market parking lot at a high rate of speed. The gunman, later identified as Eric Maxwell, [appellant herein], drove to his sister's house where several friends were gathered. These friends later drove Maxwell to the York bus terminal where he boarded a bus bound for Baltimore. At the Baltimore bus station he was placed into custody on unrelated firearm charges. (Slip Op. at 1)

Appellant now raises ten issues for our review. He first contends the lower court erred in denying his motion to dismiss the charges pending against him based on a violation of Pa.R.Crim.P. 1100. In the instant action, the complaint against appellant was filed on March 16, 1984, and the case was not called for trial until November 12, 1984; two months beyond September 12, 1984, the one-hundred eighty day run date as required by Pa.R.Crim.P. 1100.

Pa.R.Crim.P. 1100(a)(2) provides that;

"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."

Pa.R.Crim.P. 1100(b) further provides that;

"For the purposes of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, ..."

However, Pa.R.Crim.P. 1100(d)(3)(i) states;

"(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 ..."

In the case sub judice, appellant was arrested in Baltimore on March 15, 1984 and was not returned to Dauphin County to stand trial on the charges herein until July 16, 1984. Upon motion of the Commonwealth for an extension of time to bring appellant to trial, the lower court found that the period of time the defendant spent in Maryland's custody was excludable from the computation of the one hundred and eighty days. We agree.

It is well settled in this Commonwealth that while mere incarceration in another jurisdiction does not make a defendant "unavailable" for purposes of Rule 1100(d), he will be deemed "unavailable" for the period of time during which his presence cannot be secured despite the due diligence of the Commonwealth. Commonwealth v. Haynes, 339 Pa.Super. 165, 168, 488 A.2d 602, 605 (1985). Due diligence must be defined on a case by case basis and requires a showing by the Commonwealth that a reasonable effort has been made to secure the defendant's attendance at trial; it does not require perfect vigilance and punctilious care. Commonwealth v. DeMarco, 332 Pa.Super. 315, 319, 481 A.2d 632, 636 (1984). In reviewing a lower court's determination of whether the Commonwealth has met its burden of proving due diligence, this Court will consider "... only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted." Commonwealth v. Donaldson, 334 Pa.Super. 473, 476, 483 A.2d 549, 552 (1983). Also, absent an abuse of discretion, a grant of extension of time will not be overruled on appeal. Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983).

We find that the Commonwealth, without question, acted diligently in its efforts to return Maxwell to Dauphin County. A review of the pertinent dates testified to at the continuance hearing clearly supports this conclusion.

March 19, 1984--District Attorney's Office contacts Commonwealth's attorney in Baltimore and furnishes information that Dauphin County desires to try Mr. Maxwell on local charges as soon as possible.

--Copies of warrants, complaints, photographs and affidavits regarding the local case sent to the Fugitive Unit of the Baltimore Police Department.

March 28, 1984--Baltimore informs District Attorney's Office that Maryland intends to prosecute Mr. Maxwell on firearm charges.

March 19 to April 17, 1984--District Attorney's Office prepares extradition papers and sends them to Governor of Pennsylvania.

April 17, 1984--Extradition papers forwarded to the Governor of Maryland.

May 25, 1984--Correspondence sent to Baltimore requesting status of the Maxwell case in Baltimore. Letter indicates Dauphin County's desire to extradite Maxwell.

July 9, 1984--Maryland informs District Attorney's Office that Maxwell's charges in Maryland are placed on an inactive status and that they will formally arrest him for the Dauphin County charges.

July 16, 1984--Maxwell returned to Dauphin County

We therefore find the trial court did not abuse its discretion in finding due diligence.

Appellant next contends the trial court erred in compelling the disclosure of appellant's intoxication witnesses. Prior to trial, the defense filed a motion of mental infirmity defense based on intoxication. The Commonwealth filed a Motion to Compel Discovery asking, inter alia, the names and addresses of witnesses whom appellant intended to call at trial. The lower court granted the Commonwealth's motion and appellant now argues that the forced disclosure of this material "... resulted in a trial which was fundamentally unfair to the defendant inasmuch as he was deprived of the strategic impact of nondisclosure of his witnesses and witness list." (Appellant's brief at p. 26)

We find Pa.R.Crim.P. 305 C(1)(b) to be dispositive of the issue. This rule requires a defendant who intends to offer a claim of mental infirmity at trial to file notice with the Commonwealth of, among other things, the names and addresses of witnesses whom the defendant plans to call at trial in support thereof. Accordingly, we find the lower court correct in granting the Commonwealth's discovery motion.

On a related point, appellant contends the lower court erred in permitting the Commonwealth to introduce intoxication rebuttal testimony via a witness who was never identified during discovery. Appellant cites no authority for this position. We dismiss appellant's contention as meritless for here the record reflects that the witness in question was in fact listed as a defense witness on the issue of intoxication and at a discovery conference on September 14, 1984, the Commonwealth gave the defense two written statements of said witness.

Appellant's next points of argument are that the lower court erred in denying both his pre-trial motion to suppress statements he had given to police and his motion to suppress eye-witness identifications. We find the lower court to have thoroughly addressed and correctly resolved these issues, and accordingly, we affirm as to these issues on the basis of the lower court's Opinion.

Appellant also avers that the Commonwealth presented insufficient evidence to sustain guilty verdicts of 1st degree murder and assault by physical menace. Appellant contends the evidence failed to show an intent to kill, but rather, indicated that the killing was the product of a panic situation exacerbated by his intoxication. It is also alleged that the evidence is insufficient to show beyond a reasonable doubt that appellant pointed a weapon at Nancy Toy, a bystander at the time of the robbery.

When reviewing a challenge to the sufficiency of the evidence, we must view all the evidence presented at trial, together with all reasonable inferences therefrom, in a light most favorable to the Commonwealth, and determine whether the trier of fact could have found each element of the offense supported by evidence and inferences to prove guilt beyond reasonable doubt. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984).

Viewing the evidence against this standard, we can only conclude that appellant's contentions are completely devoid of merit. We are in full argreement with the lower courts finding that "[i]t does not even require the granting of favorable inferences to that testimony to determine that the jury was perfectly within its bounds in determining Mr. Maxwell was not intoxicated, or panic-stricken, when he shot the security guard who was in the process of apprehending him." (Slip Op. at 19)

Likewise, appellant's contention that the evidence was insufficient to prove appellant pointed a weapon against Nancy Toy is without merit. Nancy Toy repeatedly testified at trial that appellant pointed his weapon at her.

By way of example; on cross-examination, Nancy Toy testified to the following:

Q. "Now, Mrs. Toy, after this incident, after you heard that...