Com. v. Miller
| Decision Date | 16 January 1980 |
| Parties | COMMONWEALTH of Pennsylvania v. Richard MILLER, Appellant. |
| Court | Pennsylvania Superior Court |
Michael A. Seidman, Philadelphia, for appellant.
Neil Kitrosser, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
Before VAN der VOORT, HESTER and WIEAND, JJ.
Appellant Richard Miller was convicted by a jury in the Court of Common Pleas of Philadelphia County of charges of forcible rape, burglary, aggravated robbery, assault and battery, and aggravated assault and battery. 1 Following denial of post-trial motions he was sentenced to an aggregate term of twenty to forty years imprisonment. On this direct appeal, appellant assigns as error various rulings and actions in the court below. We find his contentions to be without merit and will therefore affirm.
Facts adduced at trial established the following: In the early morning hours of November 1, 1972, the complainant was asleep in bed on the second floor of her three story dwelling in South Philadelphia. She awoke suddenly to find two young black males standing by her bed, one on each side. The intruder on her right began beating her upon her head with a hammer while the individual on her left, later identified to be the appellant, climbed on top of her and raped her. Appellant then cut the victim's face with a knife and demanded money, while the other individual proceeded to rape her. The young woman produced her pocketbook from which the perpetrators stole between $35.00 and $40.00. Following this, appellant and his confederate fled through the back door while the victim called the police. Appellant was arrested, charged, and confessed to these crimes approximately three weeks later on November 20, 1972. His nephew, Clarence Miller, was identified as the other rapist.
Appellant was originally tried and convicted of these crimes on September 25, 1973, by a jury. On appeal, this Court remanded, allowing appellant to file post-verdict motions Nunc pro tunc. Commonwealth v. Miller, 232 Pa.Super. 171, 335 A.2d 528 (1975). Following this, the trial court granted him a new trial on February 19, 1976, finding appellant had not executed a valid waiver of counsel in the first trial. The Commonwealth appealed the granting of a new trial and we affirmed per curiam. Commonwealth v. Miller, 244 Pa.Super. 578, 371 A.2d 860 (1976). It is from the judgment of sentence imposed after the retrial that the present appeal is taken.
Appellant first contends his retrial did not begin within the time required under Pa.R.Crim.P. 1100 and that he must be discharged. Following Judge Cain's granting of a new trial on February 19, 1976, and while the Commonwealth's appeal therefrom was pending in this Court, the Commonwealth filed a Rule 1100(c) petition in the trial court seeking an extension of time for the commencement of the retrial. This petition was granted April 6, 1976, the court extending the rundate under Rule 1100 to thirty days following this Court's decision, should this Court affirm the February 19, 1976 order. Our decision so affirming was handed down December 20, 1976. On the thirty-first day following, trial not having commenced, appellant filed a Rule 1100(f) application seeking dismissal of all charges with prejudice. The court denied this request, noting Rule 1100(e) had since been amended to allow retrial within 120 days of an appellate court affirmance of an order of a trial court granting a new trial. Under the amended rule, the Commonwealth still had some 89 days within which to try appellant, thus rendering the Rule 1100(f) request premature. We think this construction of the amendment by the lower court was correct.
When the lower court granted the Commonwealth's Rule 1100(e) extension petition to 30 days following disposition of the Commonwealth's appeal, there was no provision in Rule 1100 for a prompt trial deadline after an appellate affirmance of a trial court order awarding a new trial. Rule 1100(e) simply provided (as of April 6, 1976):
A new trial shall commence within a period of one hundred and twenty (120) days after the entry of an order by the trial court or an appellate court granting a new trial.
On June 28, 1976, the Rule was amended to its present form:
(2) When an appellate court has granted a new trial, or has affirmed an order of a trial court granting a new trial, the new trial shall commence within one hundred and twenty (120) days after the appellate court remands the record to the trial court. The date of remand shall be the date as it appears in the appellate court docket.
As amended June 28, 1976; effective July 1, 1976 (emphasis added). Appellant contends the Rule as amended cannot apply to his time for retrial since the lower court had already afforded the prosecution only 30 days in which to begin trial following the Superior Court's decision. It is this 30 day time limit he urges us to employ, and not the 120 day deadline of amended Rule 1100(e).
To determine the applicability of Rule 1100(e) to retrial situations, the Supreme Court has consistently focused on the date a new trial is granted, even though the original proceeding was commenced before the Rule itself was promulgated. In Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975), trial began prior to the adoption of Rule 1100, but a retrial was ordered November 26, 1973, nearly five months after Rule 1100 became effective. The Court held the then 90 day time limit for retrial of Rule 1100(e) was fully applicable: "Because it is the entry of an order granting a new trial which starts the 90 day time limit in paragraph (e) running, that paragraph is applicable to any court case in which such an order is entered after June 8, 1973, the date of adoption of Rule 1100." Id. at 258, 336 A.2d at 274. Accord, Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (1977); Commonwealth v. White, 469 Pa. 460, 366 A.2d 880 (1976).
Similarily, the 1976 amendments to Rule 1100(e) specifically state they are effective July 1, 1976. Since it is the remand of the record following appellate court action which starts the 120 day time limit of Rule 1100(e)(2), that paragraph is applicable to any court case in which such a remand is effected following July 1, 1976. Instantly, the date of remand following our December 20, 1976 per curiam order is January 20, 1977. Thus, the Commonwealth had 120 days, or until May 20, 1977 to commence trial. The lower court, by its April 6, 1976 30 day order, was merely responding to an ambiguity in former Rule 1100(e) as to its applicability to an appellate affirmance of an order granting defendant a new trial. When amended Rule 1100(e) took effect later that year, its 120 day provision became the law of the Commonwealth, superseding the 30 day limitation of the April 6 order. The trial court thus correctly recognized that it was without power to grant the Commonwealth Less time to commence trial than that provided by Rule 1100(e). Since trial was timely begun, the court properly refused appellant's Rule 1100(f) application for dismissal.
Appellant next argues his arrest was the fruit of the unlawful arrest and interrogation of his nephew, Clarence Miller, and that the suppression court improperly restricted his cross-examination into the arrest of Clarence. Detective Leon Wright of the Philadelphia Police Department began his investigation into the instant crimes with the interview of one Kenneth Lindsay, an acquaintance of appellant. According to Lindsay, appellant had admitted that he and his nephew Clarence had broken into "a white lady's" house on November 1, 1972. Armed with this information, the police arrested Clarence Miller and, upon questioning by Detective Wright, Clarence implicated himself and appellant in the rape and robbery of the complainant herein. Detective Wright then began his search for appellant. In the meantime, he had procured an arrest warrant for appellant charging him with the rape of one Bannie Wright, occurring November 3, 1972. On November 20, 1972, Detective Wright gave this warrant to Officer William Holt of the Abington Township Police Department, who served appellant with the warrant and arrested him. At the pre-trial suppression hearing, appellant contended his arrest was the fruit of the unlawful arrest and interrogation of Clarence Miller. The court sustained the Commonwealth's objection to this line of inquiry, noting appellant had no standing to challenge any illegality as to his nephew. We need not decide the standing issue, for the record is clear the arrest of appellant was not in any way premised on the custody and confession of Clarence Miller. Appellant was arrested on warrant for the rape of Bannie Wright and not for the rape of the instant complainant. Once lawfully in custody for this unrelated charge, officers could properly question him concerning the November 1 incident. See, e. g. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
Appellant next avers the court erred in admitting into evidence prejudicial and inflammatory photographs of the crime scene. Preliminarily, we note the trial judge is normally accorded discretion in permitting photographs of the crime scene to be shown the jury. Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959); Commonwealth v. Allen, 239 Pa.Super. 83, 361 A.2d 393 (1976). In determining the admissibility of potentially inflammatory photographs, the court must apply a balancing test of whether or not the photos are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. Commonwealth v. Terry, 482 Pa. 564, 394 A.2d 466 (1978); Commonwealth v. Hilton, 461 Pa. 93, 334 A.2d 648 (1975); Commonwealth v. Garrison, 459 Pa. 664, 331 A.2d 186 (1975). If the court deems the photographs not to be inflammatory,...
To continue reading
Request your trial