Commonwealth v. Radogna
| Decision Date | 12 August 1983 |
| Citation | 317 Pa.Super. 586,464 A.2d 478 |
| Parties | COMMONWEALTH of Pennsylvania v. John Vito RADOGNA, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Nov. 16, 1982.
Nicholas Noel, III, Bethlehem, for appellant.
Anthony S. Blasco, Asst. Dist. Atty., Easton, submitted a brief on behalf of Commonwealth, appellee.
Before BROSKY, McEWEN and WATKINS, JJ.
Appeal No 2402-81 is taken from the judgment of sentence imposed upon convictions arising from the escape of appellant from custody on September 14, 1979. Appeal No. 2403-81 has been taken from the judgment of sentence imposed upon convictions arising from the discovery of a four inch stainless steel knife in the rectum of appellant after he had been apprehended in Oregon and returned to custody in Pennsylvania. The two appeals have been consolidated for purposes of our consideration.
Appellant on September 14, 1979, while in the custody of deputies of the sheriff of Northampton County, produced what appeared to be a weapon, disarmed the deputies, seized their wallets, took possession of the deputies' vehicle and escaped. As a result, he was charged with the crimes of escape, recklessly endangering another person, robbery kidnapping and unauthorized use of an automobile.
Appellant was apprehended in the State of Oregon some four months later and subsequently transported from Oregon to Pennsylvania. At the conclusion of that journey, based upon information from a source located in Oregon, appellant was submitted to an x-ray examination which revealed the four inch knife in his rectum. As a result, he was charged with possessing prohibited offensive weapon, possessing an instrument of crime possessing an implement for escape and criminal attempt to commit escape.
Appellant was determined by a jury to be guilty of all of the charges arising out of the escape and sentenced to a term of imprisonment of from ten years to twenty years. He underwent a trial without jury upon the charges arising out of the concealed knife and was acquitted of the charge of possessing a prohibited offensive weapon, but was determined to be guilty of the charges of possessing an instrument of a crime, possessing an implement for escape and criminal attempt to commit escape, for which he was sentenced to a total term of four and one half years to twelve years to be served after the sentence imposed upon the charges arising out of the escape.
Appellant in each appeal asserts the trial court erred in refusing the motion of appellant for change of venue. Our examination of the record persuades us that the hearing judge in the Statement of Reasons that accompany the order of August 21, 1980, has quite satisfactorily addressed the issues and properly rejected a change of venue.
Appellant further asserts in each appeal that the evidence was insufficient to sustain the charges upon which the verdict was entered. The Supreme Court stated in Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981):
The well-established test for reviewing the sufficiency of the evidence is:
'[w]hether, accepting as true all the evidence and all [the] reasonable inferences therefrom upon which if believed the [finder of fact] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes for which he has been convicted.' Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). In this regard it must be noted that the finder of fact has the right to reject part or all of the [witness'] testimony even if uncontradicted. Commonwealth v. Chermansky, 430 Pa. 170 at 174, 242 A.2d 237 at 240. Commonwealth v. Taylor, 461 Pa. 557, 560, 337 A.2d 545, 546 (1975), quoting Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974).
Our review of the record pursuant to this standard compels the conclusion that there is no merit to any claim that the evidence concerning any specific charge was insufficient.
A further assertion presented by appellant in both appeals arises from the rubber stamp facsimile of the district attorney and the lack of a signature or mark by the district attorney or an authorized deputy upon the bills of information. It is upon that basis that appellant argues he should be discharged or, in the alternative, that his trial counsel was ineffective by reason of the failure of counsel to request the dismissal of the charges prior to trial. Pennsylvania Rule of Criminal Procedure 225(b) provides, in pertinent part, that an information "shall be signed by the attorney for the Commonwealth." This court, in the opinion of our distinguished colleague, Judge James R. Cavanaugh, in Commonwealth v. Veneri, 306 Pa.Super. 396, ---, 452 A.2d 784, 788 (1982) has held:
[T]he signature requirement of Pa.R.Crim.P. 225(b) is directory only and that its absence renders an information merely voidable and curable by amendment if properly raised in a pre-trial motion to quash. Pa.R.Crim.P. 306.
Since appellant failed to raise the issue of the validity of the unsigned information in pre-trial motions, we conclude that he has waived this issue and is not entitled to discharge. Nor is there merit to the further assertion of appellant that trial counsel was ineffective by reason of his failure to request dismissal of the charges prior to trial since "[w]e will not hold counsel ineffective for failing to foresee changes in the law." Commonwealth v. Turner, 309 Pa.Super. 330, ---, 455 A.2d 185, 186 (1983) (citing Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977)). The trial of appellant upon the charges which comprised this appeal was held in 1980, prior to the 1982 Veneri decision, supra, and prior to our holding in Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981), that the use of the rubber stamp facsimile of the signature of the district attorney does not meet the requirement of Rule 225(b).
The remaining contention in connection with the appeal from the convictions arising out of the escape from Pennsylvania is the assertion of appellant that the trial court erred by reason of a failure to dismiss the charges under Rule 1100 of the Pennsylvania Rules of Criminal Procedure which requires that trial "commence no later than one hundred and eighty (180) days from the date on which the complaint is filed." The criminal complaint was filed on September 19, 1979. The matter was not tried, however, for more than a year, specifically, September 25, 1980, a date one hundred ninety-one (191) days subsequent to the one hundred eighty (180) day run date of March 17, 1980. Rule 1100(d) [1] excludes from the computation of the one hundred eighty (180) day period "such period of delay at any stage of the proceedings as results from ... the unavailability of the defendant". A study of the record reveals the following periods of delay occurred as a result of "the unavailability of the defendant":
The defendant fled the jurisdiction on September 14, 1979, and was a fugitive until January 30, 1980, when the Pennsylvania authorities were informed that appellant was in custody in Oregon.
While Pennsylvania became aware on January 30, 1980, that appellant was in custody in Oregon, Pennsylvania was unable to secure custody of appellant until May 1, 1980, as a result of the refusal of appellant to waive extradition.
It is clearly established that the time during which an accused is a fugitive is excludable provided that the authorities were diligent in their search. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Commonwealth v Lyles, 315 Pa.Super. 194, 461 A.2d 1237 (1983). Counsel for appellant during the pre-trial proceedings stipulated that the police had been duly diligent in their search for appellant after his escape and, therefore, appellant concedes his unavailability for this period of one hundred thirty-three (133) days. The law is also clear that the period during which an accused contests extradition is excludable provided the Commonwealth is diligent in its...
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