Commonwealth v. Zabala

• Decision Date: 11 February 1983
• Citation: Commonwealth v. Zabala, 310 Pa.Super. 301, 456 A.2d 622 (Pa. Super. Ct. 1983)
• Parties: COMMONWEALTH of Pennsylvania v. Alphonzo F. ZABALA, Appellant.
• Court: Pennsylvania Superior Court

456 A.2d 622

310 Pa.Super. 301

COMMONWEALTH of Pennsylvania v. Alphonzo F. ZABALA, Appellant.

Superior Court of Pennsylvania.

February 11, 1983

Argued Dec. 15, 1981.

Abraham A. Hobson, III, Norristown, for appellant.

Robert P. Brendza, Asst. Dist. Atty., for Commonwealth appellee.

Before WICKERSHAM, BECK and POPOVICH, JJ.

BECK, Judge:

Appellant Alphonzo F. Zabala appeals from the judgment of sentence entered by the Court of Common Pleas of Chester County after a jury convicted Appellant of robbery, burglary, theft by unlawful taking or disposition, terroristic threats recklessly endangering another person, simple assault receiving stolen goods, and conspiracy. We affirm.

On January 27, 1977, a burglary and robbery occurred at the Chester County home of Dr. Caeser Sarni while Dr. Sarni's housekeeper was in the home. Although the housekeeper was prevented from summoning assistance during the commission of the crime, she contacted the police shortly after the crimes had been completed and described one of the three perpetrators.

Two days later in Chester County the housekeeper [hereinafter "the witness"] worked with police artists to produce a composite sketch of the individual she had previously described. On February 4, 1977, the witness identified a picture of Appellant's brother, Vincent Zabala, from a display of fourteen photographs which did not include a picture of Appellant.

Subsequently in March of 1977, Montgomery County police officers armed with a warrant searched the shop space (coin shop) which Appellant rented in a Montgomery County building. In the building's boiler room the officers found an unsecured cloth bag inside which were burglary tools and several notebooks. One of the notebooks contained the address of Dr. Caesar Sarni.

On July 15, 1977, under the direction of Chester County police and the Federal Bureau of Investigation ^[1] a display of six photographs which included a picture of Appellant but did not include a picture of Appellant's brother Vincent, was shown to the witness at which time the witness identified Appellant's photograph.

In August of 1977 a Montgomery County judge ruled that the warrant authorizing the March search of Appellant's Montgomery County coin shop was invalid. Consequently, the evidence seized pursuant to the warrant was suppressed in the Montgomery County proceedings against Appellant.

On September 23, 1977, Appellant was charged in Chester County with multiple offenses stemming from the January 27, 1977, entry into Dr. Sarni's residence. ^[2] On March 14, 1978, a mistrial was declared because the jury could not agree upon a verdict, and a new trial was ordered.

As a result of continuances requested by Appellant ^[3] and extensions requested by the Commonwealth, Appellant's second trial did not commence until October 27, 1980.

In conjunction with his new trial Appellant filed a motion to dismiss the charges against him, alleging that his second trial commenced after the time period specified in Pa.R.Crim.P. 1100(e). Additionally, Appellant filed a motion to suppress not only the evidence seized in Montgomery County during the March, 1977, search of the building in which Appellant rented space (coin shop) but also the witness's in-court identification of Appellant. Finally, Appellant asked the Chester County court not to permit the introduction of evidence relating to Appellant's prior convictions for crimes involving dishonesty, which evidence the Commonwealth sought to utilize to impeach Appellant's credibility.

All of Appellant's motions were denied, and on October 30, 1980, a jury found Appellant guilty of robbery, burglary, theft by unlawful taking or disposition, terroristic threats, recklessly endangering another person, simple assault, receiving stolen goods, and conspiracy.

Appellant's post-trial motions in arrest of judgment and for a new trial were denied, and after a hearing Appellant was sentenced in accordance with the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and the doctrine of merger, Commonwealth v. Eberts, 282 Pa.Super.Ct. 354, 422 A.2d 1154 (1980); Commonwealth v. Crocker, 280 Pa.Super.Ct. 470, 421 A.2d 818 (1980). Thereafter, Appellant filed a direct appeal from the judgment of sentence.

Initially, Appellant contends on appeal that his motion to dismiss should have been granted because his new trial did not begin within the 120-day period mandated by Pa.R.Crim.P. 1100(e).

Due to a "hung" jury Appellant's first trial was terminated by a declaration of mistrial on March 14, 1978, at which time a new trial was ordered. Pursuant to Rule 1100(e) the run date for Appellant's new trial was July 12, 1978, i.e., 120 days from the date on which the new trial was ordered. Although several lengthy continuances and extensions delayed the start of Appellant's trial until October 27, 1980, Appellant's argument on appeal concerns only the period between March 14, 1978, and February 20, 1979, during which Appellant was not brought to trial.

On March 22, 1978, the Commonwealth filed an application to extend the commencement of trial. A rule to show cause why the Commonwealth's application should not be granted was entered against Appellant and made returnable on April 3, 1978. A hearing on the application was scheduled for July 12, 1978.

Meanwhile, Appellant executed a written waiver of his Rule 1100 rights from July 3, 1978, to October 14, 1978, and was granted a continuance to the October, 1978, trial term.

On July 12, 1978, the Commonwealth's application to extend was granted, and the time frame within which the Commonwealth could try Appellant was expanded to October 17, 1978.

Having learned that his case was listed for October 10, 1978, Appellant appeared in court on September 22, 1978, to request an additional continuance until the November, 1978, trial term. Appellant waived Rule 1100 until November 13, 1978, and was granted a continuance coextensive with the length of his waiver.

On October 16, 1978, the Commonwealth filed an application to extend the start of Appellant's trial. A rule to show cause why the Commonwealth's application should not be granted was entered against Appellant, and a hearing on the application was scheduled for January 17, 1979.

On November 6, 1978, Appellant's trial attorney filed a petition to withdraw as Appellant's counsel, and a rule to show cause was entered against the Commonwealth. A hearing on the petition was conducted on November 13, 1978, at which time counsel was permitted to withdraw.

On November 14, 1978, Appellant executed a written waiver of Rule 1100 until the conclusion of the December, 1978, criminal trial term. The waiver stated that Appellant's Rule 1100 rights had been explained to him by his former counsel and were also explained to him in open court on November 14, 1978, by the assistant district attorney and the trial judge.

On November 27, 1978, through his new counsel Appellant filed an application for a continuance until March 31, 1979, and concomitantly executed a written waiver of Rule 1100 until March 31, 1979. At a hearing on December 4, 1978, in the presence of Appellant and counsel for the Commonwealth, Appellant's new counsel requested, and received, a continuance through the February 1979 trial term. The court asked Appellant if his new counsel had explained Appellant's Rule 1100 rights, and Appellant replied that his rights had been explicated and that he was waiving Rule 1100 through the February 1979 trial term. Judge Stively entered an order directing that the "matter be continued, [Appellant] having waived Rule 1100 for the period of time required to relist this matter for trial."

Subsequently, the case appeared on the January 8, 1979, trial list. Both counsel for Appellant and counsel for the Commonwealth were present in the courtroom before Judge Pitt when the case was called on January 8. Appellant's counsel indicated his readiness to proceed to trial. However, counsel for the Commonwealth stated that the Commonwealth was not prepared to begin its presentation since its witnesses were not present. Asked by Judge Pitt to explain the witnesses' absence, counsel for the Commonwealth responded that he and counsel for Appellant had agreed orally before Judge Stively to a waiver of Rule 1100 until the end of the February, 1979, trial term. Appellant's counsel concurred with the prosecutor's response, adding, "It was an oral waiver by Judge Stively. It is a valid waiver ...." ^[4] Accordingly, Judge Pitt deemed the case continued until the February trial term.

On February 20, 1979, the case was again called to trial before Judge Pitt. The Commonwealth reiterated its position that Appellant had waived Rule 1100 through the February trial term, but nevertheless the Commonwealth requested an extension until February 24, 1979. ^[5] Counsel for Appellant acceded to the Commonwealth's request for an extension, stating that "February 24 ... is satisfactory to the defense." Thus, Judge Pitt relisted the case for February 24, 1979, having found a waiver of Rule 1100 by Appellant and a timely application for extension by the Commonwealth, which application was duly supported by a showing that the Commonwealth had exercised due diligence in attempting to bring Appellant to trial.

Appellant concedes that under Rule 1100(d)(2)-(3) the interim from July 3, 1978, to January 8, 1979, is excludable from a determination of the trial date as a consequence of Appellant's express waivers of Rule 1100 and the granting of continuances requested by Appellant. However, Appellant asserts that 110 days elapsed from March 14, 1978, until July 3, 1978, and that an additional 41 days elapsed from January 8, 1979, until February 20, 1979, i.e., that a span of 151 days...