Com. v. Stilley

• Decision Date: 09 January 1997
• Citation: 689 A.2d 242,455 Pa.Super. 543
• Parties: COMMONWEALTH of Pennsylvania v. Donald STILLEY, Appellant.
• Court: Pennsylvania Superior Court

Page 242

689 A.2d 242

455 Pa.Super. 543

COMMONWEALTH of Pennsylvania v. Donald STILLEY, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 3, 1996.

Filed Jan. 9, 1997.

Gavin P. Lentz, Philadelphia, for appellant.

Hollie John, Assistant District Attorney, Norristown, for the Commonwealth, appellee.

Before CIRILLO, President Judge Emeritus, and HOFFMAN, J., and CERCONE, President Judge Emeritus.

CIRILLO, President Judge Emeritus:

Donald Stilley appeals from a judgment of sentence entered in the Court of Common Pleas of Montgomery County. We affirm.

On June 7, 1993, Appellant Donald Stilley was arrested and charged with various criminal offenses for allegedly locking his ex-girlfriend in his office and forcing her to drink a steroid-based body-building drink, Gamma Hydroxybutyric Acid ("GHB"), ¹ which caused her to become drowsy and ill. On June 15, 1993, the Commonwealth filed a criminal complaint against Stilley. Over two years later, on June 9, 1995, a jury convicted Stilley of simple assault, terroristic threats, false imprisonment, and criminal mischief. The court sentenced Stilley to a term of five years probation. Stilley filed a timely appeal our review:

(1) Did the trial court err in entering a memorandum opinion recommending the Superior Court dismiss Mr. Stilley's appeal simply because Mr. Stilley's concise statement of issues was filed late after an administrative error?

(2) Did the trial court's denial of Mr. Stilley's motion to dismiss pursuant to Rule 1100 constitute reversible error?

(3) Did the trial court's admission into evidence of Dr. Peifer's testimony as it pertained to medical records that were not turned over to Mr. Stilley in violation of Judge Moore's discovery order constitute reversible error? ²

(4) Did the trial court err in failing to declare a mistrial after ADA Maloney improperly cross-examined character witness Michael Ullman about a "violent incident" that occurred on May 7, 1993, after being specifically ordered not to question witnesses about that incident?

(5) Whether Mr. Stilley was prejudiced and denied his constitutional right to a public trial and right to counsel when he and his family were locked out of the courtroom while the court addressed the jury, in the absence of counsel, regarding the status of its deliberations and the possibility of a mistrial?

(6) Did the trial court err in failing to declare a mistrial after the complaining witness testified that she had won her civil case against Mr. Stilley? ³

(7) Did the trial court err in failing to place numerous side bar and chamber conversations on the record in violation of Pa.R.Crim.P. 9030(a), severely hindering Mr. Stilley's defense and the review of the record for the purpose of the appeal?

(8) Whether trial counsel ⁴ rendered ineffective assistance of counsel when:

(a) Mr. Stretton failed to conduct voir dire of Dr. Peifer who was not qualified to render an expert opinion that the complaining witness was suffering from an overdose of GHB (b) Mr. Stretton failed to conduct voir dire of Dr. Hayes who was not qualified to render an expert opinion that the complaining witness was suffering from an overdose of GHB;

(c) Mr. Stretton failed to call Gavin Lentz, Esquire, to rebut Clyde Liddick's testimony as it pertained to confiscated evidence and tests conducted on that evidence;

(d) Mr. Stretton failed to have numerous side bar conversations on the record in violation of Pa.R.Crim.P. 9030(a);

(e) Mr. Stretton failed to accept the trial court's offer for a mistrial, against Mr. Stilley's wishes, after ADA Maloney presented additional medical records that contradicted Mr. Stretton's opening statement?

On August 18, 1995, the trial court ordered Stilley to file a Statement of Matters Complained of on Appeal. See Pa.R.A.P.1925. Not until June 6, 1996, almost one year after the court's request, did Stilley file such a statement. The trial court has prepared a memorandum suggesting that this court dismiss Stilley's appeal due to the inordinate delay in his filing of a 1925(b) Statement. According to Rule 1925(b) of our Rules of Appellate Procedure:

The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

Pa.R.A.P.1925(b) (emphasis added). The purpose of Rule 1925(b) is to facilitate appellate review by requiring the trial court to supplement the record with an opinion addressing the merits of the issues raised in the appeal. Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). Although discretionary, an appellate court may invoke the waiver provision only where the failure to file a statement or an omission from a statement of issues raised on appeal defeats effective appellate review. Id. The "[m]ere omission from the statement of matter complained of on appeal of an issue preserved by post-verdict motion, [if necessary,] argued before and disposed of by the trial court, and briefed on appeal, will not, in itself, defeat effective review of that issue." Id. at 238, 452 A.2d at 1333.

Even if meaningful review is not possible without the trial court opinion, the appellate court, while retaining jurisdiction, may remand the record with directions to the appellant to furnish the statement and, if the statement is timely filed, to the trial court to file an opinion addressing the appellant's claims. Commonwealth v. Martin, 299 Pa.Super. 250, 445 A.2d 549 (1982). See also Commonwealth v. Cortes, 442 Pa.Super. 258, 659 A.2d 573 (1995) (the concept of waiver for failing to raise an issue in post-sentence motion is abrogated under Rule 1410(B)(1)(c); this court will not discharge its function unless meaningful review is not possible without a trial court opinion). Our independent review of the record discloses that although the trial court opinion does not address the issues on appeal, the record is sufficient so as not to prevent us from conducting a meaningful review of the issues raised by Stilley. Accordingly, we do not find the issues waived.

Stilley first claims that the court improperly denied his Rule 1100 motion. He asserts that the almost two-year time period from the filing of the complaint until the handing down of the verdict violated his right to a speedy trial and should have resulted in the dismissal of his case. We disagree.

Pennsylvania Rule of Criminal Procedure 1100 states, in part:

(a)(3) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.

Pa.R.Crim.P. 1100(a)(3). ⁵ The Commonwealth filed its criminal complaint against Stilley on June 15, 1993; thus, for purposes of Rule 1100, he should have been tried by June 14, 1994. His actual trial date, however, was May 30, 1995, 688 days after the filing of the criminal complaint and 323 days beyond the prescribed 365-day run date.

A defendant on bail, who is not brought to trial within 365 days of the filing of the complaint may, at any time before trial, apply to the court to have his or her case dismissed with prejudice. Pa.R.Crim.P. 1100(g). The court shall hold a hearing and determine whether the Commonwealth has exercised due diligence and whether the circumstances underlying the postponement were beyond the control of the Commonwealth. Id. If, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant. Id.

Recently, our supreme court analyzed Rule 1100, stating:

This Court promulgated Rule 1100 to give substantive effect to the United States Supreme Court's observation that state courts could, pursuant to their supervisory powers, establish fixed time periods within which criminal cases must normally be brought by the Commonwealth. [citations omitted]. Rule 1100 provides that a trial must commence at most no later than 365 days from the date on which the criminal complaint is filed unless there is excusable delay caused by the defendant, his counsel or court congestion. Pa.R.Crim.P. 1100(a)(3).

Commonwealth v. DeBlase, 542 Pa. 22, 30-31, 665 A.2d 427, 431 (1995) (emphasis added).

Our scope of review in determining whether the trial court properly dismissed Stilley's petition for dismissal under Rule 1100 of the Rules of Criminal Procedure is limited to the evidence on the record of the Rule 1100 evidentiary hearing and the findings of the trial court. Commonwealth v. Edwards, 528 Pa. 103, 105, 595 A.2d 52, 53 (1991). When we consider the evidence and the findings we must view the facts in the light most favorable to the prevailing party, in this case the Commonwealth. Id. In determining the period for commencing a trial, we are reminded of the fact that the court shall exclude any period of delay which is a result of any continuance granted at the defense's request. Pa.R.Crim.P. 1100(c)(3).

First, we recognize that the docket is replete with changed trial dates, relistings, and continuances. For purposes of clarity, we will outline the following summary of relevant events:

06-15-93--Commonwealth files criminal complaint against Stilley.

10-14-93--Defense counsel makes first request to Commonwealth to provide him with copies of the victim's medical records.

02-18-94--Case first listed for trial. Continued at defense's request because defense waiting for the prosecution to provide the victim's hospital records. Case relisted and continued until April 6, 1994. Court order entered notes that continuance was a "joint request."

04-06-94--Continued at the request of the Commonwealth due to prosecutor's involvement in another trial....