Commonwealth v. Genovese

425 A.2d 367, 493 Pa. 65, 1981 Pa. LEXIS 664

• Court: Supreme Court of Pennsylvania
• Decided: February 4, 1981
• Docket: 24
• Status: Published

Opinions

OPINION

KAUFFMAN, Justice.

The Commonwealth appeals from an order pursuant to Pa.R.Crim.P. 1100(f) dismissing murder and related charges against appellee, Anthony Genovese, arising out of the death of a 23 month old infant.¹ The sole issue presented is whether the 180 day period mandated by Rule 1100 commences on the date of filing the first or the second criminal complaint when all charges contained in the first complaint have been dismissed at a preliminary hearing for failure to state a prima facie case, when there has been no improper effort by the Commonwealth to circumvent Rule 1100, and when the accused has been rearrested on the same charges. Because the trial court erroneously calculated the Rule 1100 run date from the filing of the first complaint, we reverse and remand for trial.²

On Christmas morning, 1977, the Honesdale Ambulance Corps responded to an emergency call from the home of Larraine Forry and appellee, where they found Ms. Forry’s 23 month old daughter, Christine, in an unconscious state. The child was taken immediately to the Community Medical Center in Scranton, where she died four days later as a result of a fractured skull. After a police investigation, appellee was arrested on March 24, 1978 and charged with murder, voluntary manslaughter, involuntary manslaughter, reckless endangerment, aggravated assault and endangering the welfare of a child.

The preliminary hearing commenced on April 3, 1978 and, after various delays and motions not here relevant, was scheduled to recommence on May 10, 1978. On May 3, 1978, however, the defense filed a motion to secure the attendance of Dr. Dominic J. DiMaio, an out-of-state witness.³ The motion was denied the following day, whereupon defense counsel immediately petitioned the court for and received permission to depose Dr. DiMaio.⁴ The deposition originally was scheduled for May 19, 1978. However, on May 9, 1978, the Commonwealth filed with this Court a Petition for Review in the Nature of a Writ of Prohibition seeking to prevent the taking of Dr. DiMaio’s deposition.⁵ We denied the Commonwealth’s petitions on May 23, 1978, and the deposition was rescheduled for July 7, 1978.

In the interim, the original district justice resigned and another was specially assigned to conduct the preliminary hearing. On August 22, 1978, after hearing testimony for three days and following appellee’s challenge to the sufficiency of the Commonwealth’s evidence, the new district justice dismissed all charges for lack of a prima facie case and released appellee from bail.⁶ It is thus clear from the record that appellee was not discharged at the preliminary hearing at the request or instigation of the prosecutor, but only because the Commonwealth failed to persuade the district justice that it had presented a prima facie case. There is no evidence of any attempt by the Commonwealth to evade the mandate of Rule 1100.

On September 11, 1978, a second complaint, containing charges identical to those previously dismissed, was filed before a third district justice, and appellee was arrested the next day.⁷ Following a preliminary hearing, the district justice concluded that the Commonwealth had established a prima facie case.⁸

On December 20, 1978, appellee filed a motion to dismiss all charges with prejudice pursuant to Pa.R.Cr.P. 1100(f), claiming that in excess of 180 days had passed since the filing of the original complaint.⁹ The motion was granted on January 18, 1979, and this appeal by the Commonwealth followed.¹⁰

Rule 1100 “serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,” Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, n.4, 409 A.2d 308, n.4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

In Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) (plurality), this Court was confronted with the very issue now before us, and we expressly held that the 180 day period commences from the filing of a second complaint. In Cartagena, as here, all charges against the defendant were dismissed at the preliminary hearing for lack of a prima facie case and the defendant was discharged. Three days later, another complaint based on the same episode was filed, the defendant was rearrested, and after a second preliminary hearing, he was held over for trial. On these facts, we held that the Rule 1100 period ran from the filing of the second complaint: “Even though based on the same episode, the second criminal complaint . . . was the one which commenced this prosecution. As such, appellant’s trial was commenced within 180 days ...” 482 Pa. at 19-20, 393 A.2d at 357.¹¹

Appropriate computation of the 180 day period was further refined in Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979). Therein, a complaint was filed against the defendant, but the grand jury refused to indict. After obtaining additional evidence, the Commonwealth resubmitted the matter to a new grand jury and an indictment was returned. On these facts, this Court excluded from the Rule 1100 computation the time period between the refusal of the first grand jury to indict and indictment by the second grand jury.¹²

Unlike the case before us, Johnson involved only one complaint, and in fact proceeded to trial without a second complaint ever being issued.¹³ Here, once the first complaint was dismissed, it became a nullity for all purposes, including Rule 1100. As in Cartagena, supra, “the second complaint . . . was the one which commenced this prosecution,” 482 Pa. at 19, 343 A.2d at 357, and there is no evidence of a prosecutorial plan to avoid the mandate of the Rule. It follows, therefore, that the 180 day period must commence from the filing of the second complaint.¹⁴

The result we reach has been followed consistently by the Superior Court¹⁵ and is supported by the relevant provisions of the ABA Standards Relating to Speedy Trial:

2.2. When time commences to run.

The time for trial should commence running, without demand by the defendant, as follows:

(b) if the charge was dismissed upon motion of the defendant and thereafter the defendant was held to answer or charged with an offense, from the date the defendant was so held to answer or charged, as above. . . .

ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, § 2.2(b) (Approved Draft, 1968).¹⁶

So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system. Neither the language nor the spirit of Rule 1100 is inconsistent with the logical, common sense conclusion that the 180 days must run from the filing of the second complaint, the one which commenced this prosecution.

Accordingly, we reverse the order of the Court of Common Pleas and remand for trial.

ROBERTS, J., filed a dissenting opinion.

NIX, J., filed a dissenting opinion.

1 . Jurisdiction is vested in this Court pursuant to the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 722(1).

2 . This opinion was reassigned to this writer on September 26, 1980.

3 . Dr. DiMaio had performed the autopsy on the deceased child.

4 . The proceedings were stayed for a period not to exceed 20 days to allow the defense to take the deposition.

5 . The Commonwealth simultaneously filed a Petition for Stay of all Proceedings Pending Determination of Petition for Writ of Prohibition and a Petition for Hearing in this Court.

6 . Appellee had been free on $20,000 bail since March 25, 1978.

7 . An accused may be rearrested and prosecuted despite the dismissal of charges at the preliminary hearing. Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975); Riggins Case, 435 Pa. 321, 254 A.2d 616 (1969); McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936).

A finding by a committing magistrate that the Commonwealth has failed to establish a prima facie case is not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to rearrest.

Commonwealth v. Hetherington, 460 Pa. at 22, 331 A.2d at 208.

8 . On January 2, 1979, the Grand Jury for Wayne County indicted appellee on charges of murder, voluntary manslaughter, reckless endangerment, aggravated assault, and endangering the welfare of a child.

9 . Pa.R.Cr.P. 1100(a)(2) provides:

Trial in a court case in which a written complaint is filed against the defendant ... shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

10 . On September 14, 1978, the Commonwealth had filed a petition for extension of time which was denied on October 6, 1978 on the ground that the Commonwealth had failed to establish “due diligence” as required by Rule 1100(c). Appellee here maintains that since the Commonwealth failed to appeal from the October 6 order, it waived all future opportunity to question the appropriate time period under Rule 1100. He argues that the petition for extension was actually a request for a determination that the 180 day period commenced from the filing of the second complaint rather than from the first complaint, and hence, that it was a final, appealable order. The opinion and order of October 6 reflect, however, that the court treated the Commonwealth’s petition merely as a Rule 1100(c) petition for extension, the denial of which is not an appealable final order. Thus, the Commonwealth is not barred from here contending that the 180 day period commenced from the second, not the first, complaint.

11 . Justice (now Chief Justice O’Brien succinctly distinguished Commonwealth v. Earp, 476 Pa. 369, 382 A.2d 1215 (1978):

There, the defendant was arrested and charged with murder, conspiracy and several lesser included offenses arising from the same criminal episode. At a preliminary hearing, the murder and conspiracy charges were discharged, but the defendant was continuously held on all other charges. This continuous confinement was the crucial factor in discharging the defendant, even though the murder and conspiracy charges were later refiled and the trial was commenced within 180 days of that date.

Cartagena, 482 Pa. at 19, 393 A.2d at 357. Moreover, in Earp, this Court expressly declined to reach the issue squarely presented here: “We need not decide the effect of a complete dismissal on all charges arising out of a criminal transaction upon the speedy trial rule.” 476 Pa. at 374, n.4, 382 A.2d at 1217, n.4. See also Commonwealth v. Lowe, 255 Pa.Super. 78, 386 A.2d 144 (1978).

12 . This Court limited the rationale of Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976), to those cases “where there is an obvious attempt to evade the requirements of Rule 1100(c) through the use of the nolle prosequi procedure.” Johnson, 487 Pa. at 204, 409 A.2d at 311.

13 . This Court distinguished those cases which were prosecuted on the basis of a second complaint:

These cases only establish that Rule 1100 requires a viable complaint to start its time periods running and that speedy trial considerations do not enter into the case until an effective complaint has been filed. The complaint in this case was unquestionably viable, in fact no subsequent complaint was ever issued.

Johnson, 487 Pa. at 204, 409 A.2d at 311.

14 . In Johnson, we noted that “failure [by the Legislature] to enact a statute of limitations for murder ‘reflects the felt seriousness of the crime, and thus is indeed a factor to be considered before foreclosing all further prosecution.’ ” 487 Pa. at 205, n.4, 312 A.2d at 312, n.4.

15 . See Commonwealth v. Leatherbury, 269 Pa.Super. 194, 409 A.2d 431 (1979); Commonwealth v. Brennan, 264 Pa.Super. 206, 399 A.2d 739 (1979); Commonwealth v. Finfrock, 257 Pa.Super. 555, 391 A.2d 621 (1978); Commonwealth v. Weitkamp, 255 Pa.Super. 305, 386 A.2d 1014 (1978); Commonwealth v. Lowe, 255 Pa.Super. 78, 386 A.2d 144 (1978); Commonwealth v. Braithwaite, 253 Pa.Super. 447, 385 A.2d 423 (1978); Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1978); but see, Commonwealth v. Garbett, 256 Pa.Super. 488, 390 A.2d 208 (1978) (plurality).

16 . Under the ABA Standards, “the critical distinction ... is whether the dismissal was at the instance of the prosecutor or the defendant.” ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, § 2.2(b), Commentary (Approved Draft, 1968).