Com. v. Zaslow
| Decision Date | 13 March 1996 |
| Citation | 671 A.2d 707,448 Pa.Super. 289 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Dennis ZASLOW, Appellee. |
| Court | Pennsylvania Superior Court |
Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division; Defino, Judge.
Karen A. Brancheau, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Burton Rose, Philadelphia, for appellee.
Before JOHNSON, HUDOCK and OLSZEWSKI, JJ.
The Commonwealth appeals from the order entered in the Court of Common Pleas of Philadelphia County granting Dr. Dennis Zaslow's motion to dismiss pursuant to Pa.R.Crim.P Rule 1100, 42 Pa.C.S.A. We reverse and remand for trial.
This case arises from criminal complaints filed against four individuals. Specifically, A. Terry Daly, Esquire, was charged with 86 counts of criminal conduct in three Grand Jury presentments, while co-defendants Zaslow, Jannette Lawsin, and Sheldon Bennett were charged with 36, 7, and 7 counts, respectively, each in the third presentment. The third presentment alleged, inter alia, a pattern of racketeering activity between Daly, Zaslow, Lawsin, and Bennett, in presenting false motor vehicle and other insurance claims, lawsuits, and testimony for the purpose of collecting financial settlements and awards. In particular, the complaint against Zaslow was filed on March 10, 1993, and he was charged with insurance fraud, false swearing, perjury, corrupt organizations, theft by deception, tampering with public records, and criminal conspiracy. Zaslow was subsequently released on bail.
A preliminary hearing was held on June 14, 1993, at which counsel for Daly requested a continuance because Daly had been admitted to a mental hospital for evaluation. Zaslow objected to the continuance and filed a motion to sever his trial from Daly's trial. The Commonwealth opposed severance due to the complex nature of the case, the overlapping allegations against the four co-defendants, and because the repeated appearances of the same witnesses would greatly inconvenience the witnesses and not serve judicial economy. Further, the Commonwealth believed that Daly was malingering and feigning mental illness. The trial court denied the motion for severance and ordered that the preliminary hearing be continued until June 28, 1993.
On June 28, 1993, the court found that Daly was competent to proceed with the preliminary hearing. The trial court scheduled the preliminary hearing for September 14, 1993. Zaslow again objected to any continuance and renewed his motion to sever. The Commonwealth continued to resist this request for severance, and, consequently, the lower court denied Zaslow's motion. Prior to the scheduled preliminary hearing date, however, Daly asked the court for another continuance due to his ongoing mental difficulties. On September 14, 1993, the court halted proceedings and ordered the court psychiatrist, Richard B. Saul, M.D., to examine Daly to determine if he could proceed with the hearing. When the hearing reconvened later that day, Dr. Saul testified that Daly was incompetent to assist in his own defense. Further, Dr. Saul stated that, in his opinion, there was no malingering and that Daly needed approximately 90 to 180 days of in-patient treatment before he could participate in the preliminary hearing. Following this testimony, Zaslow again petitioned for severance. The Commonwealth renewed its opposition to the motion, and the court denied the motion. The court then scheduled a status conference for November 1, 1993, to monitor Daly's treatment and progress, and ruled that the period between September 14, 1993, and November 1, 1993, was excludable from the Rule 1100 calculations.
On November 1, 1993, Dr. Saul re-examined Daly and concluded that he was still unable to participate in his own defense. Dr. Saul suggested that Daly was not receiving the proper care at his current facility and suggested a transfer to another facility. Daly requested that the proceedings be continued to allow him to get this care. Zaslow renewed his motion for severance and objected to the continuance, but the Commonwealth requested an additional opportunity to determine if Daly was competent. Consequently, the court continued the action and held that this time was excludable for Rule 1100 purposes. On December 15, 1993, the court held another status meeting at which it determined that Daly remained unable to assist in his own defense. Zaslow renewed his motion to sever, which the court denied. Instead, the court continued the case for another status conference, and ruled the time from December 15, 1993, to February 22, 1994, excludable from the Rule 1100 calculation.
On February 22, 1994, the court once again convened to evaluate Daly's progress and recovery. Daly became extremely agitated at this hearing. As a result, the Commonwealth asked for a continuance to allow its expert, Robert L. Sadoff, M.D., the opportunity to examine Daly. Zaslow strongly objected to this delay and requested severance for the sixth and final time, but the Commonwealth opposed this motion. The court denied the request for severance and the matter was re-scheduled for April 6, 1994.
At the April 6, 1994 hearing, the court received several medical reports concerning Daly's mental state and competency. To allow time for review of these reports, the court re-scheduled the hearing for April 27, 1994. On April 27, 1994, the court found that Daly was competent to proceed to trial. Thus, the court scheduled the preliminary hearing for the next available date of July 11, 1994. After a four-day preliminary hearing, at which 19 witnesses testified, Zaslow was held over for trial on 31 of the 36 counts with which he had been charged. The case was scheduled for a pre-trial conference on September 9, 1994, but was continued by the court until September 29, 1994. On September 29, 1994, Zaslow filed a motion for dismissal pursuant to Rule 1100. On November 18, 1994, following an evidentiary hearing, this motion was granted. This appeal followed.
Presently, the Commonwealth asserts that the trial court erred in granting Zaslow's motion to dismiss pursuant to Rule 1100. In advancing this contention, the Commonwealth claims that the propriety of its actions following the filing of charges against Zaslow necessitates a reversal of the order. We agree.
While it is clear that trial did not commence within 365 days following March 10, 1993, the date on which the complaint was filed against Zaslow, we believe that the Commonwealth has met its burden of establishing that it acted with due diligence and that the circumstances occasioning the procedural delay were beyond its control. Accordingly, we find that the trial court abused its discretion in granting Zaslow's motion for dismissal pursuant to Rule 1100.
The statutory provision at issue in this case provides, in relevant part, as follows:
Rule 1100. Prompt Trial
* * * * * *
(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.
* * * * * *
(g) For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant's attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain.... 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.
Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. (emphasis added).
The standard of review in the case sub judice is whether the lower court abused its discretion in determining that the Commonwealth did not act with reasonableness with respect to the issue of due diligence. Commonwealth v. Johnson, 405 Pa.Super. 363, 373, 592 A.2d 706, 711 (1991). In making such an assessment, we are limited to considering only that evidence on the record of the Rule 1100 hearing and the findings of the lower court. Commonwealth v. Edwards, 528 Pa. 103, 105, 595 A.2d 52, 53 (1991). Also, when reviewing the determination of the hearing court, we must view the facts in the light most favorable to the prevailing party. Id.
"Due diligence is a concept defined on a case by case basis." Commonwealth v. DeMarco, 332 Pa.Super. 315, 481 A.2d 632 (1984). Presently, in determining whether the Commonwealth exercised due diligence, it is necessary to evaluate the proceedings as they relate to the severance of Zaslow's case from that of Daly's. Since the trial court's disposition of the six severance motions was based upon frequent evaluations of Daly's mental status, we believe that the issue of severance is inextricably intertwined with the issue of Daly's competency. Accordingly, we address the severance issue in light of the trial court's handling of Daly's competency to stand trial.
Although the decision whether to grant a motion for severance must be balanced with the need to minimize the prejudice that may be caused by consolidation, there is a clear preference in this Commonwealth to consolidate the trials of those engaged jointly in criminal activity. Commonwealth v. Stocker, 424 Pa.Super. 189, 204, 622 A.2d 333, 341 (1993). In Commonwealth v. Patterson, our Supreme Court noted that:
[t]he general policy of the law is to encourage joinder of offenses and consolidation of indictments when...
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