*1 of his arrest. the lawfulness challenged has Appellant seized was admissible weapon we hold that Accordingly, to a search incident to a as evidence discovered pursuant lawful arrest. affirmed. of sentence
Judgments 382 A.2d Pennsylvania COMMONWEALTH (two cases). EARP, Appellant Leslie Supreme Pennsylvania. Court 11, 1976.
Submitted Oct. 24, 1977.
Reassigned Oct.
Decided Jan. 1, 1978. Rehearing Denied March *2 Philadelphia, appellant. G. Stephen Young, Goldblatt, H. F. Emmett Dist. Steven Fitzpatrick, Atty., Chief, Div., Asst. Dist. Atty., Appeals appellee. ROBERTS, O’BRIEN, POM- EAGEN, J., and C.
Before LARSEN, JJ. EROY, NIX, MANDERINO OPINION ROBERTS, Justice.
This an the issue of whether accused not appeal presents to trial as 1100 on brought required by out of a criminal transaction under Pa.R. arising may, Crim.P. be later to trial on other brought out of the same criminal transaction.1 We hold that he cannot.2
I 28, 1974, Leslie was arrested and Earp On July appellant murder, with and several other offenses charged conspiracy, appeal pursuant Appellate 1. We hear this to the Court Jurisdiction 31, 1970, II, July 202(1), Act of Act of P.L. art. 17 P.S. § 211.202(1) (Supp.1977). § Appellant (1) evidence; against also asserts: the verdict was the (2) evidence; against weight (3) the verdict was the of the the judge refusing quash homicide calendar erred in to the murder and conspiracy although they indictments were at a returned time when stay effect; relating appellant’s (4) a Earp’s of all case was in right placed second trial violated his not to be twice in jeopardy; (5) suppression judge denying appellant’s erred in pleaded pre-trial applica- motion that all of the tions to facts in his well two suppress evidence be deemed admitted because the Com- applications monwealth failed prescribed answer the within the time limits (6) 308(a); suppression judge Pa.R.Crim.P. errone- ously 28, 1974, appellant’s July supported by held that arrest cause; probable (7) suppression judge refusing sup- erred in witnesses; press testimony (8) identification of three Commonwealth refusing charge testimony the trial court erred in that the of the alleged eyewitnesses Commonwealth’s cause these witnesses were erred in be received with caution be- (9) young juveniles; the trial court refusing portion charge relating to alter a of its disposition to the testimony of a defense makes it witness. Our unneces- sary any to reach of these issues. in connection with the shooting death of Robert Davis.3 On 22, 1974, a August certification hearing was held on all murder. charges except Appellant, who was sixteen years arrest, old at the time of was certified at the as an hearing adult on all charges.
At a on the murder preliminary hearing and conspiracy 4, 1974, held on charges these September were dismissed because of the Commonwealth’s failure to estab- lish a facie case prima against appellant as required by 141(d). Despite dismissal of these charges, was held appellant on the continuously other offenses. On 1975, a warrant February was issued for the arrest of appellant for murder and connection with the same Even killing. though since his arrest on 28, 1974 had been July incarcerated, continuously it was not until 1975, that February appellant was arrested again. On April after the days arrest, first filed a motion to dismiss all charges, contending Commonwealth had failed to with comply Pa.R.Crim.P. 1100. Rule 1100 requires Commonwealth to bring case to trial within 180 days of the filing criminal complaint an against accused. The calendar judge granted motion on the murder except and conspiracy charges, reasoning the arrest of 10 on February these two charges was the relevant date for measuring Commonwealth’s compli- ance with Rule 1100 these two regarding charges. On August 11, 1975, 379 after the filed, first were trial commenced, but ended in a mistrial. On December 1975, a second trial began, and a found jury appellant guilty *4 of murder of the first and degree conspiracy. Post-verdict motions, raising Commonwealth’s failure to with comply 1100, denied, were appellant was sentenced to life imprisonment, and this appeal followed.
II 1100(a)(2) provides: possession crime, 3. The other offenses included of instruments of possession assault, weapons, aggravated assault, simple of offensive recklessly endangering and person. another
373
a written
is filed
complaint
“Trial in a court case which
30,1974
the defendant after June
shall commence
against
from the date
eighty (180) days
no later than one hundred
filed.”
complaint
to
of
protect
only
right
Rule 1100 was promulgated
trial,
to a
but also the interest of
speedy
society
the accused
of criminal
See Com-
disposition
litigation.
in the prompt
Hamilton,
297,
(1972).
v.
449 Pa.
“Speedy may defense, of his preserve proving want to means may avoid a or condition- long period pre-trial imprisonment release, al and to and long avoid period anxiety public out of the accusation. From the suspicion arising point view of the trial is public, necessary preserve the means of to maximize the deter- proving charge, conviction, avoid, rent effect of and to prosecution cases, some an extended freedom the pretrial flee, he defendant which time commit other during may crimes, or intimidate witnesses.” Justice, ABA on Minimum for Criminal Project Standards 1.1 Trial Relating Speedy Commentary (Ap Standards § States, 412 Draft, 1968). v. United proved See Strunk U.S. (1973); Wingo, S.Ct. L.Ed.2d 56 Barker 101 (1972). 407 U.S. S.Ct. 33 L.Ed.2d 1100(a)(2) we have held that Rule “con Accordingly, the commencement of the of the manda templates running at the are tory period point initiated.” Mitchell, 372 A.2d Moreover, our Rules that all (1977). provide out of a criminal transaction shall be treated as a case: single
“When more than one offense is alleged to have been incident, committed one out of the same person arising shall one issuing authority accept only complaint, shall docket the matter as a case.” single
374 Thus, 131(b) and Rule 131(b). 1100(a)(2)
Pa.R.Crim.P. by trial set forth day period make clear that the 180 speedy a out of charges arising to run on all begins Rule 1100 of criminal proceed- the initiation upon criminal transaction offense out of arising the defendant with any ings charging that transaction.4 that the requirement recognizes exceptions
Rule 1100
of criminal
180
of the start
days
within
trial be commenced
180
is excused from the
The Commonwealth
proceedings.
time
which the
rule if the
length
trial
day speedy
trial
is attributa-
the speedy
exceeds
Commonwealth
or
of the defendant
unavailability
caused by
ble to delay
Common-
1100(d)(1);
counsel, Pa.R.Crim.P.
defendant’s
(1977); Com-
A.2d 326
Vaughn,
v.
475 Pa.
380
wealth
or
Millhouse, 470 Pa.
(1977),
On July 1974, appellant was with charged murder, and conspiracy, several lesser offenses. These arose charges out of the same criminal transaction, death of shooting Robert Davis. By charging with these offenses, the Commonwealth initiated criminal pro- ceedings against appellant, Mitchell, su- and thus pra, to obligated these bring proceedings to against appellant trial within 180 days. Pa.R.Crim.P. 1100(a)(2); Pa.R.Crim.P. 131(b). Though charges murder were dismissed at the preliminary hearing held September 1974, other were still pending against Indeed, appellant. appellant remained in continuous on these custody charges. some Though of the criminal proceedings against appellant murder and conspiracy —the dismissed, appellant remained charged with —were possession instruments crime, possession of offensive weapons, aggravated assault, simple assault, and recklessly another endangering person. So as a long portion out of of Robert shooting Davis remained pending, Commonwealth’s obligation bring these proceedings against appellant to trial within 180 days remained unaltered. Not having fulfilled this obligation, the Commonwealth has failed to comply with the require- ments of Rule 1100.
The Commonwealth’s if argument, adopted, would allow the Commonwealth to grant itself in cases such as this an extension of trial, the time for without in any way reducing the burdens of the accused or the public. accused, as here, remains incarcerated for long periods, subject pre- trial suspicion uncertainty. must Society also wait for time, extended periods of postponing orderly enforce- ment of the law, and jeopardizing continued availability of valuable evidence. To allow such an extension without would be inconsist-
any justification by rule. ent with our See Commonwealth Shel- ton, supra.
The result we reach is the relevant supported by provi- sions of the ABA on Minimum for Crimi- Project Standards Justice, nal Trial Relating Speedy Standards (Approved Draft, of the 1968). 2.2(a) Section Standards provides: “ When time commences run.
The time for trial should commence running, without
defendant,
demand from the
as follows:
filed,
(a)
charge
from the date
that if the
except
defendant has been
held
or on bail
continuously
custody
until that date to answer for the same
or on recognizance
on the
crime or a crime based
same conduct or arising
*7
then the time
from the same criminal
for trial
episode,
from the date he was
to
running
should commence
held
answer.”
178 Colo.
See As the standard with to (quoting approval). Commentary an this section this section recommends explains, important qualification:
“The one the standard is that important qualification the time is to be counted from the date the defendant was held to answer if the offense later is ‘the only charged crime same or a crime based on same conduct or from the arising same episode.’ “This which it is believed qualification, puts neither the defendant nor the to an unfair prosecutor advantage, intended to of the fact that the clarify significance offense differ from the offense for which the charged may defendant was held to answer. . . . The thrust of (a) is that: should not be qualification prosecutor for the time which before the responsible elapses charge was filed because the defendant was held to simply being offense; answer on an unrelated the defendant (b) should not the time lose credit for which between passes the date he was held to answer and the date of the charge because the simply offense out of the charged, arising same conduct or differs episode, somewhat from the of- fense for which the defendant to was held answer.” ABA Project Justice, on Minimum for Criminal Standards Standards Relating 2.2(a) Trial Speedy Commentary § Draft, (Approved 1968).
Appellant was held in continuous on the other custody offenses for the entire in which he could have been to trial. brought The dismissal of the murder and conspir- acy charges did not relieve the Commonwealth of its obliga- tion to bring the proceedings against trial, out of the criminal transaction were still pending against appellant. Commonwealth failed to bring trial within 180 has July not justified the delay pursuant 1100(d), did not seek an extension of the time for trial pursuant to Pa.R.Crim.P. 1100(c). Appellant must therefore be dis- charged.
Judgment sentence reversed and appellant ordered discharged.
EAGEN, J.,C. concurs in the result. POMEROY, J., filed a dissenting opinion O’BRIEN and LARSEN, JJ., join.
LARSEN, J., filed a dissenting opinion.
POMEROY, Justice, dissenting. *8 I dissent. The the majority ignores of application Juvenile Act of 6,1972, 1464, 333,11 December P.L. No. P.S. 50-101 et seq. § (Supp.1977-78) case, to this and improperly concludes that of murder and conspiracy commit murder fall, stand or purposes Pa.R.Crim.P. 1100, with the lesser charges out of the same crimi- nal transaction.
I. On July appellant, aged was arrested and charged with murder, conspiracy, and several lesser of-
fenses1 in connection with the shooting death of Robert 22, 1974, Davis. On Henry August certification hearing was held in juvenile court on the lesser charges, and appel- lant was certified to be tried as an adult on these and held for action by grand jury. Under Section 28(a)(4) of the Act, Juvenile 50-325(a)(4), P.S. § juvenile court was before such required making a certifica- find, tion to alia, inter that there was a facie case prima established against appellant. judge not, at certification hearing however, did
consider the murder charge against for the Juvenile Earp, Act “makes a clear distinction between juveniles charged with murder and those charged of a delinquencies lesser nature.” Keefer, 1082, 1084 A.2d (footnote (1976) omitted). Thus Section 2(2) “ of the Act, 11 50-102(2), P.S. provides a ‘delinquent § act’ shall not include the murder,” crime of and Section 28(e), 50-325(e), P.S. provides, with an exception § relevant, here that when a delinquency petition “alleges conduct which if would proven murder, constitute the court shall require offense to be prosecuted under the criminal law and procedures.”
Given these provisions Act, the Juvenile it follows that the preliminary hearing held on September dealt with the charges murder and to commit murder, not, as the majority implies, conducted in disregard of 131(b),2 Pa.R.Crim.P. under which all charges arising out of a single transaction are to be treated as a single Rather, case. the separate channels of the two preliminary in this case were occasioned requirements of the Juvenile Act. Moreover, these require- 1. The possession crime, other pos- offenses were of instruments of weapons, assault, assault, session of aggravated simple offensive recklessly endangering person. another 131(b) provides: alleged “When more than one offense is to have been committed person arising incident, one issuing out of the same authori- ty accept only complaint, shall one shall docket the matter as a single case.”
379
ments are not affected
either Rule
which does not
131(b),
the
of the
the
suspend
operation
procedures contemplated by
Act,3
based,
or
rule is
Juvenile
the decision on
432,
304
Campana,
233,
452 Pa.
A.2d
vacated,
on
808,
73,
414
94
38
44
(1973),
U.S.
S.Ct.
L.Ed.2d
remand,
denied,
622,
854,
969,
314
cert.
417
A.2d
U.S.
(1974),
94
II. According majority, long portion as a of “[s]o proceedings out of the of Robert Davis shooting remained pending, obligation bring Commonwealth’s these against proceedings to trial within 180 of initiation the original proceedings] remained [from Court, unaltered.” ante at 375. This is Opinion so, the Court says, because the charges murder conspir- acy, for Rule purposes relate back date of original arrest in July, 1974. This conclusion erroneous. as have said, we “contemplates commence- ment of the running of the at the mandatory period point are initiated.” Mitchell, 472 Pa. (1977). A.2d When the murder and dis- against Earp were on missed September because the Commonwealth’s failure case, establish prima facie the proceedings those charges not, were as the majority suspended, implies, were they terminated. as So far those two were concerned, at from completely liberty Septem- 3. See Pa.R.Crim.P. 159. *10 conclude, To
ber, 1974 until
1975.
as the
February,
majority
for
does, that
the new
murder and
conspiracy
commenced
must relate back
subsequently
against appellant
to the date of the
arrest
the effect of the
original
ignores
was
dismissal of the
Commonwealth
original charges.
a
new
bring wholly
prosecution against appellant
required
on
if it chose to
further on them at
proceed
those charges
that this new
all,4
proceed-
and
in Rule 1100 dictates
nothing
rule,
of the
as
treated,
something
for purposes
be
ing
the 180-
Accordingly,
from what
it
was.
actually
different
as
to the murder
1100(a)(2),
applied
of Rule
day
anew at
begun
should be held to have
conspiracy charges,
for these
the time when
was
again prosecuted
Mumich,
in
Commonwealth v.
charges
February,
See
denied, 239
(1976),
III. this declares that treat murder con- majority new as a new with a spiracy prosecution proceeding 180-day under the Common- “would allow wealth to itself in cases this such as an extension of grant *12 trial, for reducing time without in the burdens of any way Court, the of public.” Opinion the accused or ante at The insupportable. Commonwealth This statement 375. time for trial on the lesser that not contend does prosecu- the new by have extended should been argues it conspiracy; only arid that for murder tion for be at conspiracy trial murder could started properly 180 time within the commencement of any days following new proceeding on those This is charges. not in a case which Commonwealth has acted in plainly faith sought bad or to evade the intentionally mandate appellant 6. The record indicates was to make unable bail. It Rule 1100.7 is clear from the record that was Earp discharged at the preliminary hearing September only because Commonwealth did not succeed in persuading there a hearing judge facie prima case of murder As the trial against appellant.8 noted in judge denying motion dismiss the appellant’s murder and con- non-compliance with spiracy charges “there ” was no evidence in this case of purposeful . . . delay N.T. (5/19/75) at 45. Thus there is no basis simply for a conclusion that the Commonwealth somehow ex- sought to tend the time for trial on any charge when it lost its case at the September preliminary hearing.
The majority’s discussion “burdens” reflects similar noted, confusion. As above the burdens on as an accused person during September 4, from period 1974to February 10, 1975 from the only stemmed of the pendency lesser that were dismissed with ultimately, April, prejudice rule, because of violation of the result not contested here the Commonwealth. There by were no other charges outstanding against appellant during this burdens suffered him as a result period, any related to a of pre-arrest delay, pre-trial delay. This is because was not held trial on the murder and arrest, offenses until after his second and because the of Rule 1100 are provisions not concerned with the prejudice to one’s defense that may be caused by in the delay bringing criminal proceedings. Whatever Whitaker, Compare 7. Commonwealth A.2d (1976), in prosequi which the Commonwealth moved for a nolle two expiration mandatory period. before the of the time Appellant eight contends that there were witnesses available and preliminary known to the at Commonwealth the time of the first hearing. Although is true presented it that the Commonwealth one this, hearing, more, proves of these witnesses at the first without nothing. does The record not indicate that these witnesses would hearing, possible at testimony have testified the first or that their prima against appellant. have would established facie case only present decision Commonwealth’s one witness could have considerations, any been motivated number reasonable and it is appellate second-guess an not for court the manner which the presented its case. *13 384 from the have resulted may defense to appellant’s
prejudice on July Davis of Robert shooting of time between lapse on February for murder second arrest 1974, Earp’s and 28, been has that no prejudice I emphasize 1975—and to due right the accused’s which affects a matter shown—is Rule trial under to a law, right not his process 783, 97 S.Ct. Lovasco, 431 U.S. v. United States See Marion, 404 v. United States (1977); 2044, 53 L.Ed.2d (1971); 30 L.Ed.2d 307, 92 S.Ct. U.S. (1976); A.2d 660 Common- Crawford, (1973). 8, 307 A.2d Rose, 225 Pa.Super.
wealth v. De (e. g., delay the Court by on identified society burdens also, so enforcement, evidence) would loss of valuable law case are in this murder and conspiracy far as the society’s in arrest. And considered, caused aby delay be enforcement, I is ill-served suggest, in law interest applica- a tenuous and novel this discharge it was not with which Rule 1100 to a situation tion of a false start deal, and which was caused designed faith. I dissent. made in good LARSEN, JJ., opinion. in this join O’BRIEN and Justice, LARSEN, dissenting. dissenting in his Pomeroy Justice wholeheartedly join
I opinion. now majority also like to emphasize
I would the new and novel 131(b) pur- to serve wants Pa.R.Crim.P. on February the arrest which was made pose causing as if it were made on July to be “construed” defendant, was convicted of murder of that the who so be because he discharged will conspiracy, first degree (Pa.R.Crim.P. hundred eighty days tried within one was not date. The defendant was arrest of the “construed” 1100) of his actual hundred eighty within one fact tried arrest. effect of purpose has misconstrued
The majority offenses alleged that all 131(b) Rule 131(b). provides *14 . . from arising incident, the same issuing au shall thority one accept only complaint and shall docket the matter as a case.” single 131(c) provides that when 131(b) is not to, adhered “. . .a of the court judge may order forfeiture of all costs additional issuing authority accrued reason of such . violation . ..” * Thus, Rule 131(b), which was three before adopted years Rule 1100 came into existence was for the adopted sole that a defendant purpose would not be subjected wrongfully to multiple arrests and costs hearings and additional for alleged multiple crimes out of It one incident. for adopted purpose being of somehow wed Rule 1100 to reach the result which the reached. majority
The effect of the is to have created majority’s opinion one hundred eighty day Statute of Limitations crime of murder for this defendant and other defendants similarly situated. For the other citizens of the Commonwealth there not, is nor be, should there Statute Limitations crime of murder. is majority piling technicalities upon technicalities
with the result that form taking over precedence sub- stance; this is form must wrong emanate out of sub- —all stance. I dissent.
Submitted Nov. 1977.
Decided Jan. * replaced Rule 131 former Rule 103 which contained identical lan- guage.