Commonwealth v. Leatherbury

409 A.2d 431, 269 Pa. Super. 194, 1979 Pa. Super. LEXIS 2784

• Court: Superior Court of Pennsylvania
• Decided: August 17, 1979
• Docket: 2140
• Status: Published

Opinions

PRICE, Judge:

On May 6, 1977, appellant was found guilty after a non-jury trial of possessing an instrument of crime generally ¹ and simple assault.² Following denial of post-verdict motions and imposition of sentence, this timely appeal was filed. In addition to alleged insufficiency of the evidence, appellant asserts the Commonwealth’s failure to comply with Pa.R.Crim.P. 1100(a)(2),³ which mandates that a defendant be tried on or before the 180th day after a complaint’s filing. Because we find appellant’s Rule 1100 claim to be meritorious, we vacate the judgment of sentence and order appellant discharged, rendering it unnecessary to address appellant’s sufficiency argument.

A written complaint in this case was filed on April 22, 1976. The first date set for the preliminary hearing was April 26,1976, at which time the defendant failed to appear, and a bench warrant was issued. The warrant was withdrawn on May 3, and bail was set. On May 10, 1976, the complainant failed to appear due to an emergency. A continuance from May 19 to June 9 is not explained on the record. The period from June 9 to June 16 was a continuance because of defense counsel’s inability to attend. Finally, on June 16, 1976, the prosecution was dismissed because the complaining witness did not appear.

A second complaint charging the same crimes and arising from the same incident was filed on October 28,1976. Subject thereto, appellant was rearrested on November 4, 1976, and a preliminary hearing followed on November 10, 1976. On November 29, 1976, a written motion to dismiss under Rule 1100(f) was filed. That motion was denied by Judge Blake on December 14, 1976, when he ruled that for Rule 1100 purposes, time would be calculated from the date of the filing of the second complaint. In conjunction therewith, Judge Blake extended the run date to May 2, 1977, (180 days after the second complaint’s filing would have lapsed on April 26, 1977) due to the dismissal of the original charges and the second complaint.⁴ In fact, appellant was not tried until May 6, 1977.

It is appellant’s position that the Commonwealth could have pursued his conviction under the first complaint, in spite of the complaining witness’s failure to appear. Ultimately, that witness’s testimony was not relied upon at the second preliminary hearing or at trial. Appellant thus argues that Rule 1100 should be calculated from the first complaint’s filing and that he is therefore entitled to discharge.

In Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1976), a complaint was filed charging the appellant with fornication and bastardy. Because the complainant’s signature did not appear on the appellant’s copy of the complaint, the lower court dismissed the case at the preliminary hearing stage. Although under Pa.R.Crim.P. 150 the complaint could have been amended and the appellant’s discharge avoided if the court deemed the defect an informal one, the appellant’s acquiescence in dismissal when the lower court sub silentio rendered the defect substantive, caused us to hold the dismissal proper. This court stressed a second area of concern when we said, “Moreover, the record does not reflect any impropriety by the district attorney’s office in this case to avoid the mandate of Rule 1100.” Commonwealth v. Mumich, supra, 239 Pa.Super. at 212, 361 A.2d at 361. We therefore ruled in Mumich that the Commonwealth was required to try the appellant on or before the 180th day following the filing of the second complaint.

Subsequent to the Mumich case, we have several times treated this issue and reaffirmed the Mumich criteria. When determining whether a first or second complaint controls the Rule 1100 calculation, we are mindful of two considerations: (1) was the first complaint properly dismissed; and (2) does the record reveal an intent by the prosecution to evade the Rule. Commonwealth v. Weitkamp, 255 Pa.Super. 305, 386 A.2d 1014 (1978); Commonwealth v. Braithwaite, 253 Pa.Super. 447, 385 A.2d 423 (1978). Applying these criteria in the instant case, we find that the dismissal was not proper, and that the Commonwealth’s effort to evade Rule 1100 is apparent on the record.

According to the record in this case, the Commonwealth’s alleged inability to present a case against appellant at the preliminary hearing, in the absence of the complaining witness, was the cause for the first complaint’s dismissal fifty-five days after it was filed. Only after the passage of an additional one hundred thirty-four days did the Commonwealth file the second complaint. The Commonwealth did not present the complaining witness’s testimony at the preliminary hearing or at trial. Nor was any explanation offered for its failure to do so. Clearly, the prosecution was not hindered by the absence of that testimony, since the testimony of the arresting officers that it did present was sufficient to hold appellant over for court and to convict him. Under the circumstances here presented, there appearing no explanation for the Commonwealth’s failure to bring forth later the “crucial” witness, and there appearing no explanation for the Commonwealth’s failure to pursue the case until the 189th day after the first complaint was filed by lodging a second one, we find that the record demonstrates the Commonwealth’s obvious intent to circumvent the Rule. Accordingly, we calculate the Rule 1100 run date from the first complaint’s filing date.

Absent any Commonwealth extensions under Ph.R. Crim.P. 1100(c) or any exclusions under Pa.R.Crim.P. 1100(d) due to appellant’s unavailability, the Commonwealth was thus required to try appellant on or before October 19, 1976. There were no Commonwealth extensions. Further, even assuming for purposes of this discussion that appellant should be charged with two periods of continuance in the conduct of the first preliminary hearing because of his failure to appear — seven days — and his counsel’s unavailability — seven days — appellant was entitled to discharge when he requested it on November 29, 1976. Even if those fourteen days could be viewed as actually having delayed trial commencement,⁵ trial would have been required to commenee on or before November 2, 1976. Because this did not occur, appellant was entitled to discharge.

Judgment is vacated and appellant is ordered discharged. HESTER, J., files a dissenting opinion.

1 . 18 Pa.C.S. § 907(a).

2 . 18 Pa.C.S. § 2701.

3 . Pa.R.Crim.P. 1100(a)(2) requires that: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”

4 . Although this description of Judge Blake’s action on the motion to dismiss is related in Judge DiBona’s opinion on post-trial motions, and highlighted in both parties’ briefs, the record on appeal is devoid of any such order.

We note with interest that after argument on and denial of post-verdict motions on July 21, 1977, Judge Blake wrote an opinion on February 9, 1978, in which he reassessed his denial of appellant’s motion to dismiss. Therein he analyzed more recent case law, and purported to order appellant discharged. On April 3, 1978, an opinion was filed in compliance with Pa.R.A.P. 1925(a) by Judge DiBona, who had tried appellant. In that opinion, Judge DiBona disagreed with Judge Blake’s opinion of February 9, 1978, and instead reaffirmed Judge Blake’s earlier order denying the motion.

It is well settled that it is inappropriate for a judge of coordinate jurisdiction sitting in the same case to overrule the decision of a colleague on the same court. Marmara v. Rawle, 264 Pa.Super. 229, 399 A.2d 750 (1979); Commonwealth v. Griffin, 257 Pa.Super. 153, 390 A.2d 758 (1978). A post-trial motions judge can certainly reassess decisions on pre-trial motions. Once post-trial motions are denied, however, the pre-trial motions judge would have absolutely no authority to rule further. Even absent that difficulty, the appeal in this case was filed on July 28, 1977; clearly, the court below had no jurisdiction to rule further in the case after that time. Pa.R.A.P. 1701(a).

5 . The supreme court, recently discussing Pa.R.Crim.P. 1100(d) in Commonwealth v. Morgan, 484 Pa. 117, 123-124, 398 A.2d 972, 975 (1979), declared:

“Thus, any occurrences between the filing of the complaint and the commencement of the trial which did not affect the time in which the trial was commenced, is beyond the purview of the Rule and therefore not properly considered as a ‘delay in the proceedings’ within the terms of section (d) of the Rule. ‘Delay in the proceedings’ as used in the Rule requires an actual frustration in the commencement of trial. A postponement of an arraignment which does not in any way prolong the time for the commencement of trial is irrelevant to the question of a speedy trial and is therefore not in fact to be considered in determining the application of Rule 1100 in a given case.”

It would thus appear that difficulties in scheduling the preliminary hearing, attributable to a defendant, do not cause “delay in the proceedings” qualifying them for Pa.R.Crim.P. 1100(d) analysis.