*1
Superior Pennsylvania. Court of
Submitted March 1977. Decided July *3 Finkelstein, appellant. for Harrisburg, Edward S. Attorney, District Assistant MacIntyre, E. Second Marion Harrisburg, Zimmerman, Attorney, District LeRoy and S. Commonwealth, appellee. for JACOBS, WATKINS, Judge, President
Before PRICE, CERCONE, VAN der VOORT HOFFMAN, SPAETH, JJ.
PRICE, Judge: found of guilty was trial, appellant a
Following jury substance,1 heroin. namely a delivery unlawful controlled judg- in arrest for a new trial and motions Appellant’s sen- was Appellant lower court. were by ment denied than five nor for not less undergo imprisonment tenced $1,000.00 fine pay and to years more than ten prosecution. costs of contentions, which is the first of several raises
Appellant to a right because his discharged he to be is entitled was violated. 1100(a)(2)2 under Pa.R.Crim.P. speedy trial following. aré the of this issue necessary Facts for resolution Police undercover State Pennsylvania On June informant to a confidential Petti, went with agent, James “Sidney.” known as The dealer drug the home an alleged was and a sale Sidney, $150.00 with spoke briefly officer nar- of an extensive part This transaction completed. Commonwealth investigation cotics conducted transaction, but after June County. Dauphin Sometime *4 Petti returned Sid- completion, the investigation’s before The investi- that he had moved. residence and learned ney’s 1975, forty- raid in which January, in a gation culminated charged with violations were arrested and persons three 13, 233, 64, 14, 1972, April amended P.L. No. as § [35 1. The ofAct 780-113(a)(30)]. P.S. § in 1100(a)(2) in court case that: “Trial a 2. Pa.R.Crim.P. mandates complaint against defendant after June a is filed which written (180) eighty 30, 1974, later than one hundred shall commence no complaint days is filed.” from the date on which the narcotics A complaint laws. was filed and an arrest 14, warrant was issued for “Sidney” on January State were police without additional identification information or knowledge Sidney’s whereabouts.
Petti was Dauphin transferred from at the County conclu- sion of the but returned six to investigation, eight times attempting to locate these Sidney. On occasions he conduct- ed a surveillance of known traffic drug areas in Harrisburg. He also photographs supplied examined Harrisburg June, Department, 1975, Police and during he finally identi- Thereafter, fied a photograph Sidney. the coordinator of spoke a investigation Commonwealth with Detective Stevenson, Harrisburg Police Department, who was familiar with in those involved the local drug traffic. Sidney, Stevenson knew who was identified as appellant, Jones, W. he Moses advised the Commonwealth that Jones was then in living Philadelphia. agreed Stevenson locate who appellant, occasionally visited the help Harris- burg area. Unfortunately, neither Stevenson nor his con- tacts able were to lead the appellant. Commonwealth to On 6th, August a complaint, second criminal identical to the first, appellant. was filed against 11,
During 1975, week August a state trooper, George Wynn, learned from superiors appellant that was being sought. viewing After appellant’s photograph, Wynn 1975, realized that he seen Jones July, had during his investigations Harrisburg. Wynn learned from an infor- mant on visited the area weekends. appellant Finally, on 18, 1975, was made August an arrest after the informant saw appellant Wynn. and contacted
On moved to January quash his indict- ment 1100(a)(2). for violation of Rule The motion was hearing denied after January trial jury was that day. held
The first against and second complaints lodged appel lant were substantively identical. There no need for the Commonwealth to file the second Our complaint. point
371 the Rule 1100 claim is assessing appellant’s reference for of was never complaint which the first filing of the date 150. The Common- Pa.R.Crim.P. properly dismissed. See on filing complaint the had 180 days wealth 1975, 14, 1975, 14, bring appellant July or until January 1976, 21, January not tried until was trial. Since prescribed period the the beyond time “ the computation the be either excluded from ‘must [of an order 1100(d)] justified by or Pa.R.Crim.P. period, of the rule to the terms granting pursuant an extension pre- is to 1100(c)] if the Commonwealth [Pa.R.Crim.P. ” Shelton, 14-15, 8, Pa. 364 v. 469 vail.’ Commonwealth O’Shea, v. 694, (1976), Commonwealth quoting, A.2d 697 (1976). 491, 496, A.2d 874 Pa. 350 465 this file to extend in petition The did not Commonwealth upon it Pa.R. 1100(c). Instead relies case. Pa.R.Crim.P. See. compliance that there full 1100(d)(1) Crim.P. and asserts with the Rule. 1100(d)(1)
Rule provides: trial, In for commencement of “(d) determining period the at delay such period be therefrom there shall excluded results from: as stage proceedings any attorney his of the defendant or (1) unavailability maintains that whereabouts appellant’s The Commonwealth until filing complaint of the first were unknown from ade- we that the 1976. If find Commonwealth August unavailability in the lower appellant’s quately established days court, January trial then appellant’s known, became was well within after his whereabouts prescribed period. provides part: Rule 1100
The Comment to
(d)(1),
any
addition to
“For
purposes
subparagraph
of the de-
availability
precluding
other circumstances
be deemed
should
fendant or his
defendant
attorney,
which he could
during
of time
any period
unavailable for
un-
his whereabouts were
not be
because
apprehended
known and could not be determined by due diligence
*6
Thus, the question in this case is whether the Common-
wealth proved
aby
preponderance of the evidence that it
acted with
in
due
diligence
locating
apprehending appel-
lant.
Mitchell,
Commonwealth v.
472 Pa.
Appellant attempted prove to his availability by introduc- ing evidence that he was apprehended on March Harrisburg, on other drug related charges. That arrest resulted from a separate investigation conducted Pennsylvania Control, Bureau of Drug assisted by the Har- risburg Police Department. Appellant was arraigned April 30, 1975, and was in court in May, addition, In he received mail district attorney’s office in June or July. elicited Appellant testimony showing that he was well known Harrisburg police to a detective who could easily have Appellant located him. also showed that he drove a very pretentious automobile in the city’s crime area. The defense showed that a deputy district attorney of Dauphin County was familiar with appellant’s nickname, “Philadel- phia Sidney,” automobile, and his but was not aware of appellant’s true name and address until after the city’s March 20th raid.
In
Mitchell,
Commonwealth v.
supra, the Commonwealth
asserted the appellant’s unavailability as cause for the com-
mencement of trial after the expiration of the 180 day
period. To refute the Commonwealth’s assertion that
it
could
Mitchell,
not locate
the appellant argued that he
received
assistance
public
benefits and that he
employed
under his own name. The appellant argued that the Com-
monwealth could have located him through one of these
associations. The
reflect,
record did not
however, that the
police
knew
department
either that appellant received assist-
ance or that he was employed. The court declared:
second-guess
of our courts
“It is not the function
The
persons.
accused
to locate
police
methods used by
infor-
whether,
considering
is
to be employed
analysis
have
with dili-
they
acted
the police,
mation available to
the accused. Deference
locate
gence
attempting
as to which
judgment
officer's
police
must be afforded
Id., 472 Pa. at
will be fruitful.”
approach
avenues of
added).
(emphasis
The time from the 1975, 14, 18, appellant’s when 1975, August to January is apprehended, known and he whereabouts became 180 under days of the computation excludable from the 1100(d)(1). Only days elapsed August 156 Pa.R.Crim.P. 21, trial, 18, 1975, January Appellant to the day 180 period. tried within the day was therefore properly 374
Appellant’s second contention is that the Common wealth violated Pa.R.Crim.P. 21 in that the criminal com plaint was not issued the district justice within whose jurisdiction the crime occurred. This assertion is of no merit 1975, because there was a January court order transferring jurisdiction over the series of drug arising cases from the raid to the district January magistrate who issued the com plaint against appellant. 21(d). See Pa.R.Crim.P. final assertion
Appellant’s is that the trial court erred in its to the jury instruction regarding Common wealth’s failure produce testimony informer, who was identified at trial.3 It is well established that: “ potential witness is available to only one of ‘[W]hen trial, parties appears and it this witness has
special issue, information material to the this person’s cumulative, testimony merely would not be then if such party witness, does not produce testimony of this jury may draw an inference it would have been unfavora- ” ble. (citations omitted).’ Commonwealth v. Whyatt, 211, 218, 235 Pa.Super (1975), 340 A.2d quoting, Commonwealth v. 455 Pa. Jones, 317 A.2d (1974). case, In the instant lower court’s instruction on this inference concluded:
“However, where there is satisfactory explanation as to here, why the witness is not the inference would not *8 I properly arise. don’t think there was direct any testimo- ny as to the why Shimp whereabouts or Mr. was not here and without that could infer that his you testimony would unfavorable, be unless you would find in the circumstanc- comply appellant 3. We note that failed to with Pa.R.A.P. which questions appellate mandates that the statement of in an brief must upon appellant predicates contain all issues which the entitlement to Appellant’s only questions relief. statement of refers to his Rule argument. issue, briefing appellant did, In the Rule 1100 improperly, alleged however address the merits of the trial court’s preserved below, properly erroneous instruction. The issue was argued post-trial motions, in in and addressed the lower court’s opinion. We therefore the merits. address to here because him be expect not es that would you added). 100) the case.” (NT (emphasis the nature of 99— emphasized to objected portion the counsel Appellant’s explained: the judge the and charge, was no direct believe, there said, although I that “I to produce failure the as to Commonwealth’s testimony consider properly could jury the I think witness, the why the Com- reason any would be other whether there the nature of him, because of produce monwealth did not 101) (NT case, that statement.” this I stand and added). (emphasis than rather is a permissible inference
It is true that the testimony explaining any the absence of In mandatory one. however, totally be im- absence, it would the informant’s possible explanations. on the to jury speculate for proper Once charge encouraged. is, effect, what the court’s This in discretion, to the opted give his in exercise of judge, absence, was enti- appellant informant’s instruction of the the inference. benefit of tled to full .Because not enjoy did charge explanation, court’s and required. Thus new trial is benefit. a new trial is is reversed and of sentence
Judgment granted. dissenting VOORT, J., concurring files a
VAN der JACOBS, joins. Judge, President opinion in which not in WATKINS, Judge, participate did former President of this case. or decision the consideration VOORT, dissenting: concurring Judge, VAN der to the Rule relating case I decision this concur issues, respect- but I Magistrate of the jurisdiction 1100 and charge relating the decision fully dissent affirm the trial but would not a new grant court. I would action of the court below. concurring in this
JACOBS, joins Judge, President dissenting opinion.