Commonwealth v. Orlosky

• Decision Date: 04 April 1979
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Fred ORLOSKY. COMMONWEALTH of Pennsylvania, Appellant, v. Thaddeus J. DEDO.
• Court: Pennsylvania Superior Court

401 A.2d 756

264 Pa.Super. 598

COMMONWEALTH of Pennsylvania, Appellant, v. Fred ORLOSKY.

COMMONWEALTH of Pennsylvania, Appellant, v. Thaddeus J. DEDO.

Superior Court of Pennsylvania.

April 4, 1979

Submitted Oct. 26, 1978.

Charles W. Johns, Asst. Dist. Atty Pittsburgh, for Commonwealth, appellant.

Byrd R. Brown, Pittsburgh, for appellee Fred Orlosky.

John H. Corbett, Jr., Asst. Public Defender, Pittsburgh, for appellee Thaddeus J. Dedo.

Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.

WIEAND Judge:

This is a Commonwealth appeal from an order of the Court of Common Pleas of Allegheny County which dismissed conspiracy charges against Fred Orlosky and Thaddeus J. Dedo because of a failure to commence trial within the time requirements of Pa.R.Crim.P. 1100. We affirm.

The procedural history of the cases is important. Complaints were filed on April 19, 1976, charging Orlosky and Dedo appellees, with conspiracy to commit theft by deception. According to the mandate of Pa.R.Crim.P. 1100(a)(2), it was necessary that trial on such charges commence on or before October 16, 1976. On October 3, 1976, the Commonwealth filed applications to extend the time for commencement of trial. These applications were heard before the Honorable Donald E Ziegler on October 12, 1976. The court granted the requests of the Commonwealth by two separate orders, unaccompanied by findings of fact, which directed that the named defendants "be tried not later than 120 days after the final order of the appellate court at No. 22 April 1977 (Superior Court)."

The appeal referred to in the court's order involved a separate but related matter. The principal Commonwealth witness against Orlosky and Dedo was to be Clarence Miller, who had also implicated one Charles Goldblum in the alleged conspiracy. Goldblum had attempted to bring a private prosecution against Miller for perjury. The District Attorney of Allegheny County had declined to approve Goldblum's requested prosecution, and the Court of Common Pleas had affirmed the District Attorney's decision. Goldblum thereupon had appealed to the Superior Court.

The Commonwealth argued before Judge Ziegler on October 12, 1976, that it should not be required to commence trial against Orlosky and Dedo so long as there remained the possibility of a perjury conviction against its principal witness. The trial court concluded that the requested delay would serve the interests of justice, as well as those of the parties, and entered the orders previously recited. ^[1]

Goldblum's appeal to the Superior Court was decided on January 17, 1977 by a per curiam order which affirmed the trial court's order denying the requested private prosecution. Allocatur was denied by the Supreme Court on May 11, 1977. The record was remanded to the trial court on May 23, 1977.

Trial of the instant criminal action against Orlosky and Dedo was thereafter scheduled for September 13, 1977. On August 29, 1977, Dedo filed an application to dismiss because his trial had not commenced within 180 days following April 19, 1976. Orlosky filed a similar application on September 12, 1977. Both applications were heard on September 12, 1977 by Judge Ziegler. He concluded that he should reconsider the extension order which had been entered on October 12, 1976. Upon such reconsideration, he found that the Commonwealth had not demonstrated due diligence at the time of its initial request for an extension in October, 1976. Therefore, he set aside his prior order and dismissed the indictments. His order of September 12, 1977, which had been entered from the bench, was followed by a written opinion filed on September 14, 1977. In that opinion he also concluded that the indictments were fatally defective for failing to allege that a conspiracy had occurred or that overt acts had been committed in Allegheny County. From this order the Commonwealth filed the instant appeal.

We are constrained to agree with the trial court's determination that the Commonwealth failed at any time to demonstrate circumstances beyond its control which prevented a prompt trial. Rather, the failure to commence trial prior to October 16, 1976, was attributable solely to a strategy decision intentionally adopted by the prosecution. This strategy, even though it may have been prompted by a noble motive, was not consistent with due diligence. The possibility that a Commonwealth witness may at some time be charged with perjury by a criminal defendant against whom he or she intends to give testimony does not justify a Commonwealth decision to delay trial. Moreover, the possibility of a future accusation of perjury does not disqualify a witness. It is only a conviction for perjury which disqualifies a witness. Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167 (1976). The discretion which is vested in a prosecutor to withhold testimony which he deems unreliable does not allow for a delay in trial in order to test the witness' credibility in a collateral proceeding. The possible future accusation of perjury against a Commonwealth witness, therefore, was not a circumstance which prevented a speedy trial of the charges against appellees.

The Commonwealth contends that even if the trial court's extension order of October 12, 1976 had been entered in error, the error should not have been corrected by an order dismissing the charges. It points to the fact that on October 12, 1976, when the order was entered, the period of 180 days following the filing of the complaints had not expired. We do not know, for the record does not reveal, whether the Commonwealth could have commenced trial before October 16, 1976. We do know, however, that the order extending the time of trial made it unnecessary for...