COMMONWEALTH of Pennsylvania v. Adam CUNNINGHAM, Appellant.
Superior Court of Pennsylvania.
March 31, 1977.
372 A.2d 473
Submitted Sept. 13, 1976.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
PRICE, Judge:
The appellant contends, inter alia, that his right to a speedy trial was violated since he was not brought to trial within 180 days from the filing of the criminal complaint as required by
The criminal complaint involved herein was filed on August 6, 1974. The case was first listed for trial on January 15, 1975, within the 180 days prescribed by the applicable rule, but appellant did not appear. The dissent, citing
“A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire . . . or to some other such first step in the trial.”
We do accept, however, that the evidence therefore establishes the unavailability of appellant as of January 15, 1975, and as such, commences a period of unavailability pursuant to
The crucial question then becomes how many days are thus excludable. This in turn depends upon a record determination of the availability of appellant subsequent to the trial‘s first listing on January 15, 1975.
Appellant‘s Motion to Dismiss, filed September 3, 1975, and hence properly and timely filed pursuant to Pa.R.
Although we can find no testimony by appellant offered on the Motion to Dismiss, it was apparently conceded by the district attorney at hearing (N.T. 14) that such a detainer was in fact filed on February 5, 1975, but that the district attorney‘s office was not advised that the Sheriff had located appellant. The Commonwealth also admits this point in its brief, where it explains:
“Accordingly, a bench warrant was issued which was the basis for lodging a detainer against him at the Holmesburg Prison in Philadelphia, where he was located by Montgomery County authorities on February 5, 1975 (Commonwealth‘s Brief p. 2)” (Emphasis added)
Under the record and by the Commonwealth‘s admission, it is evident that the appellant was available for trial after February 5, 1975. Therefore, under
“The Trial Court properly denied defendant‘s motion to dismiss under Rule 1100(f), because it has no application to the facts of the case.” (Commonwealth‘s Brief p. 4)
“In fact, the Commonwealth does not rely at all on Rule 1100.” (Commonwealth‘s Brief p. 4)
Rule 1100 was the sole argument presented by the Commonwealth in the lower court and was the sole basis of the lower court‘s denial of appellant‘s motion.
We are not prepared, however, to hold that the Commonwealth‘s present argument is not properly before us. On the one hand it is clear that had appellant shifted the basis of his motion to dismiss from the Rule in the lower court to the statute on this appeal we would have applied the doctrine of waiver. On the other hand we, as an appellate court, may independently arrive at a different ground than that advanced on appeal in affirming the lower court. This principle that an appellate court may affirm if any ground for affirmance exists has often been announced. Prynn Estate, 455 Pa. 192, 315 A.2d 265 (1974); Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970). We therefore accept the Commonwealth‘s argument, since we independently could adopt it as a basis for affirming.
It is clear that
There remains, therefore, only the purpose of survival of the statute unless the Rule indicates a contrary result. This in effect limits the application of the statute only to those situations where the whereabouts of the defendant is unknown and the Commonwealth, by the exercise of due diligence, is unable to locate him. The statute is preserved in those limited circumstances for the purpose of imposing an obligation upon the defendant to inform the seeking authorities of his whereabouts. Absent the defendant so informing under those circumstances no time limit is brought to bear on the right to speedy trial.
Viewed in this light the vitality of the Rule is observed and preserved. To adopt the view urged by the Commonwealth does violence to the concept of speedy trial first announced in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972) and firmly adopted in
This is a matter of first impression and the lower court was never given the opportunity to comment upon it or research it. The Commonwealth cites no authority for the proposition advanced by it, relying solely on a public policy argument that we cannot accept. Since the statute was adopted prior to the concept of speedy trial in this Commonwealth as it presently exists, and indeed prior to any of the landmark United States Supreme Court cases of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972);
The statute then has no application to the appeal now before us. It is now conceded both on the record and by brief, that Montgomery County filed its detainer against appellant on February 5, 1975. His whereabouts were known. The Rule provides the Commonwealth with the right to petition for an extension of time. Whether or not this could properly have been granted need not concern us, since no such request was ever made. The time for trial expired, whether from a breakdown in communications between the office of sheriff and district attorney in Montgomery County or simply because the district attorney‘s left hand didn‘t know what his right hand was doing or a combination of these reasons.2 It matters not to this interpretation, and although we are sure there will be further complaint concerning the discharge of “convicted” criminals on an “outrageous” technicality it seems clear that
The judgment of sentence is reversed and the appellant is ordered discharged.
VAN der VOORT, J., files a dissenting opinion in which WATKINS, President Judge, and CERCONE, J., join.
VAN der VOORT, Judge, dissenting:
The appellant, Adam Cunningham, following non-jury trial, was convicted of retail theft and criminal conspiracy. After post-trial motions were denied, and sentence imposed, appellant filed the instant direct appeal to our Court raising two claims of alleged error: (1) that the lower court erred in denying appellant‘s motion to dismiss for violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure, and (2) that the lower court erred in refusing to suppress evidence obtained as a result of an illegal arrest. I find neither of appellant‘s claims to be meritorious and would affirm the judgment of sentence.
The record shows that during the afternoon of August 6, 1974, a store detective for a department store in Willow Grove, Montgomery County, Pennsylvania, observed appellant and one Delores Odom together in the women‘s sportswear department from a distance of approximately ten to fifteen feet. The detective saw appellant pick up approximately ten pairs of pants and put them over his arm and then, with Miss Odom, leave the store without attempting to pay the cashier for the items of clothing. The detective followed the two and saw them get into a black over yellow Dodge automobile in which a male driver was waiting. As the trio proceeded south on York Road, the detective wrote down the license plate number and called the Upper Moreland Township police giving them the description of the3
Within less then five minutes, an officer of the Upper Moreland Township Police Department, was directed over the radio to proceed to the department store to speak with the store detective. While en route, a few minutes later, the Upper Moreland officer was informed over the radio that the car had been stopped by Abington Township police officers. He picked up the store detective at the store and they proceeded to the intersection at Fairway, Harte and York Roads, approximately two miles away. As they arrived on the scene, an officer of the Abington Township Police Department was removing the three occupants from the vehicle. The store detective identified the three people as the perpetrators of the theft. The clothing, found in the vehicle was identified as being that which appellant had taken from the store. The clothing was lying in plain view on the back seat and on the floor in the front of the vehicle. Some of the items of clothing still had the department store price tags attached to them. The clothing was removed from the vehicle and placed in the Upper Moreland patrol car, and the vehicle was moved to the side of the road and secured. At the request of the Upper Moreland officer the three subjects were placed under arrest and put into the Abington Township patrol car, whereupon they were transported back to Upper Moreland Police Department for processing. At trial, the Commonwealth proved all of the above, as well as offering positive identification of appellant by the officers and the store detective.
In his first claim, appellant contends that he was not brought to trial within the prescribed time period of 180 days following the filing of the criminal complaint as required by Rule 1100 of the Pennsylvania Rules of Criminal Procedure. The record indicates that while the criminal
The appellant offered testimony that he had been found guilty and sentenced in Philadelphia County sometime in November, 1974 on charges of disorderly conduct. He was sentenced to 30 days in custody. As a result of such conviction, he was also found in violation of probation and as a result, had an 11 1/2 to 23 month sentence added to the disorderly conduct sentence. During all such proceedings and during the time he was serving such sentences in the Holmesburg Prison in Philadelphia, appellant was listed and known by the name Frederick Duffan.1 During the time of such imprisonment, appellant never contacted the court or defense counsel to indicate his whereabouts or unavailability for trial. He also never exercised his right to seek speedy trial of the charges against him, while in a term of imprisonment, pursuant to
Next, appellant contends the lower court erred in refusing to suppress evidence which appellant claims was obtained as a result of an unlawful arrest. The appellant reasons that he was only convicted of misdemeanors2 and that he thus could not have been arrested without a warrant. We recently rejected a similar argument in highly analogous circumstances in Commonwealth v. Mayer, 240 Pa.Super. 181, 362 A.2d 407 (1976). There, as here, an officer stopped and then arrested occupants of an automobile which automobile and occupants fit a well detailed description from a police radio broadcast. Such broadcast informed the officer that the occupants had just been involved in a “theft“. As in Mayer, the record in the instant case clearly shows that the arresting officer had reasonable cause, based on the broadcast, to believe that a felony may have been committed and was justified in stopping the car. The plain view of the department store clothing, with fresh tags, in the car certainly justified the arrest. The actual conviction of a misdemeanor cannot defeat the existence of probable cause to support the initial stop and arrest. The appellant‘s second claim of error should therefore be dismissed as lacking in merit.
I would affirm the judgment of sentence.
WATKINS, President Judge, and CERCONE, J., join in this dissenting opinion.