Commonwealth v. Winn
| Decision Date | 19 April 1984 |
| Citation | 475 A.2d 805,327 Pa.Super. 296 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Frank WINN. |
| Court | Pennsylvania Superior Court |
Argued May 13, 1983.
Garold E. Tennis, Asst. Dist. Atty Philadelphia, for Commonwealth, appellant.
Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellee.
Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
On April 14 1981, Judge Richard B. Klein, Philadelphia Court of Common Pleas, presided over a Rule 1100 hearing, and denied the Commonwealth's "Petition for Extension under Rule 1100," as being untimely filed and granted appellee's "Motion to Dismiss under Rule 1100." The Commonwealth has appealed. We reverse.
A review of the entries in the Quarter Session file reflects the following chronology:
9/18/80: criminal complaint filed.
12/15/80: appellee arrested. Preliminary hearing scheduled for 12/24/80.
12/24/80: complainant failed to appear. Preliminary hearing continued to 1/7/81.
1/7/81: complainant failed to appear. Must be tried Commonwealth. Preliminary hearing continued to 1/22/81.
1/22/81: complainant failed to appear. Must be tried. Preliminary hearing continued to 2/5/81.
2/5/81: line-up ordered.
2/26/81: preliminary hearing held. Appellee held for court.
3/17/81: arraignment
[3/17/81: Rule 1100 Run Date ]
3/31/81: Commonwealth's Petition to Extend under Rule 1100 filed.
4/1/81: Pre-trial conference. Rule 1100 hearing scheduled for 4/14/81.
4/14/81: Appellee's answer and Motion to Dismiss under Rule 1100 filed.
Motion to Dismiss under Rule 1100: Granted.
A Rule 1100 evidentiary hearing was held on April 14, 1981. As the Rule ran on March 17, 1981 and the Commonwealth's Extension Petition was not filed until March 31, Rule 1100(c) and (e) required dismissal of charges unless the Commonwealth could establish that at least two weeks were "excludable" under Rule 1100(d) Pa.R.Crim.P. The position advanced by the Commonwealth, and the evidence produced at the Rule 1100 hearing, involved the Commonwealth's contention that the delay between the filing of the complaint (September 18, 1980) and the arrest of appellee (December 15, 1980) was excludable time. After hearing the testimony of the assigned detective, Judge Klein found that his efforts were "so minimal" as to demand a finding that due diligence was lacking, and that the detective had ignored several possibilities which offered some hope of success in arresting appellee.
As a result of this Pa.R.Crim.P. 1100 discharge, defendant, Frank Winn has been discharged from all criminal liability for twice allegedly raping a seventy-two year old widow, Mrs. Frances Taylor. It is charged here that on the night of September 7, 1980, defendant broke into Mrs. Taylor's apartment, while she lay resting on her bed. He first demanded money; when Mrs. Taylor protested that she had none, he struck her in the eye with his clenched fist, shoved her onto her bed, pinned her down with a choke hold over her neck and face, and raped her. Warning that "I will be back," defendant left the apartment for a few minutes. Upon his return he threatened the terrorized and elderly widow that: "They are going to find you dead right up here in this room." He then grabbed her bra and tore it off, pulled off his victim's slip, again threw her on the bed, and raped her a second time. Five or ten minutes later defendant, sated, left his traumatized victim lying in pain.
On April 14, 1981, the Honorable Richard A. Klein discharged defendant under Rule 1100 because he felt the police did not exercise due diligence in apprehending defendant who evaded police for eighty-eight (88) days after the issuance of a warrant for his arrest. Although Judge Klein clearly credited the assigned detective's uncontradicted testimony, presented by the Commonwealth at the Rule 1100 hearing, he held that the police efforts to locate defendant were, as a matter of law, insufficient to sustain a finding of pre-arrest due diligence. The Commonwealth's credited evidence established that on September 7, 1980, Philadelphia Police Detective Finnegan took Mrs. Taylor's complaint and learned from her that Mrs. Taylor's landlady's nephew, Frank Winn, was the rapist. However, defendant's aunt, who was told that defendant was wanted by the police, gave Detective Finnegan an incorrect address for defendant and a misspelling of his last name. Detective Finnegan went to the given address, discovered that no one by defendant's name lived there, and on September 18, 1980, returned to defendant's aunt's residence. At that time, the aunt's common law husband provided him with the correct information. On that day, Finnegan obtained an arrest warrant for defendant at the correct address and, at 10:00 p.m., went to defendant's home, but received no answer. Also on that day, the detective entered defendant's name into the PCIC (Philadelphia Crime Information Center) computer, which circulates throughout the state and city that defendant is wanted in Pennsylvania. Early in October of 1980 Detective Finnegan went to defendant's home, but again received no answer. He also re-contacted defendant's aunt, who said she had not seen him since the rape incident. Finally, on November 11, 1980, defendant's mother answered the door and told the detective that although defendant did live there, he was not home at that moment. The detective gave the mother his name and telephone number, and she told him that when defendant came in he would telephone the detective. Defendant did not do so. The detective continued his efforts to apprehend defendant by entering his name into the NCIC (National Crime Information Center) computer on November 11, 1980. He also circulated photographs of defendant among the police officers in defendant's police district, and learned from an Officer Thompson that defendant "hung out" at a poolroom at 10th and Tioga Streets. Detective Finnegan checked the poolroom without success, as did Officer Thompson on a later date. Next, on November 13, 1980, Detective Finnegan was contacted by defendant's probation officer and the detective informed him that there was a warrant outstanding for defendant's arrest. The probation officer told the detective that defendant would turn himself in to South Detectives Division but defendant failed to do so. Finally, on December 15, 1980, Detective Finnegan and Officer Thompson arrested defendant at his home. The first Common Pleas Court listing of defendant's case was on April 14, 1981, hearing on the Commonwealth's Rule 1100 extension petition, which had been filed on March 31, 1981, thirteen (13) days after the Rule 1100 "mechanical rundate". After hearing the Commonwealth's uncontradicted evidence, Judge Klein concluded that the police were not duly diligent in trying to find defendant during the eighty-eight (88) days between the lodging of the complaint and defendant's arrest. He therefore discharged defendant on the ground that, since the pre-arrest delay was not excludable time under Pa.R.Crim.P. 1100, the Commonwealth's petition was not timely filed. [1]
This case is controlled by Commonwealth v. Dorsey, 294 Pa.Super. 584, 440 A.2d 619 (1982), in which a panel of our court also considered an appeal by the Commonwealth from an order discharging appellee under Rule 1100(f). The lower court had held that the police had not exercised due diligence in looking for appellee, and that the period between the offense and appellee's arrest should therefore not be excluded from the period within which appellee had to be tried. We reversed and speaking through Judge (now President Judge) Spaeth we said:
Without question, the police might have done more by way of trying to find appellee, and they might have done some of what they did do, in particular, circulating a photograph of appellee, sooner. One may have some confidence that if the crime had been of a different, and more spectacular, sort, it would not have taken the police so long to find appellee. Having said this much, however, we recognize that the police cannot investigate every crime with the promptness and thoroughness that would be desirable. Too many crimes are committed. The police must therefore make choices, devoting more attention to some crimes than to others, and forgoing some lines of inquiry that they would pursue if they had more resources.
Thus, when asked to decide whether the police have acted with due diligence, a court must engage in a balancing process, which may become quite awkward. On the one hand, the court should approach its decision with sympathy for the police. For as the Supreme Court has said in Commonwealth v. Mitchell supra, 472 Pa. at 561, 372 A.2d at 830: "The police can be expected to act with due diligence in locating and apprehending an accused in all situations because it is their duty to do so as public officials." The court should therefore take into account the limited resources available to the police, and should be wary of saying that the police should have done something that they did not do. On the other hand, the police, like other public officials, do not always do...
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