Commonwealth v. Noyer

Walls, v. appeal. failure to take a direct aff’d, 1, 125, 126 (1977), 375 A.2d A.2d affirmed. Order Pennsylvania

COMMONWEALTH NOYER, Appellant. Ronald J. Pennsylvania. Superior Court Nov. 1977. Submitted April 1979. Decided Appeal Sept. Petition for Allowance Granted Altoona, for James V. McGough, appellant. Jr., District Peoples, Attorney, Hollidaysburg,

Thomas G. Commonwealth, appellee. JACOBS, WATKINS, Before President and Judge, PRICE, HOFFMAN, CERCONE, VAN der VOORT and SPAETH, JJ.

PRICE, Judge: imposition following This from of sentence appeal arises in the court motions fоr a denial below new trial and in arrest of raises seven judgment. Appellant herein, issues on For the reasons stated we reverse appeal. of sentence and for a judgment remand the case new trial.

The facts essential for resolution of this are appeal following. On Robert February appellant, Sweit- zer, and a third were from the party being transferred Blair Courthouse, where were all County they incarcerated time, Huntingdon, to the State Correctional Institution in a distance of about twenty-five Ferguson miles. Robert Gormont, J. Reed two both deputies sixty-nine years age incident, at the time of this were assigned transport the trio vehicle. The by prisoners were handcuffed to one another handcuffs, two sets of occupied the rear they seat of the sheriff’s automobile. ten miles

Approximately east while Hollidaysburg, car proceeding Route ensued in which affray prisoners managed overcome the deputies. trio seized the deputies’ weapons, and a shot was fired at Mr. Gormont as the prisoners good made their Both escape. deputies hospitalized were and remained incapacitated for long periods thereafter.

As trial, the result of a which and his co-defendant Robert were together, Sweitzer tried was convicted of three counts of and one count robbery,1 assault,2 each of aggrаvated recklessly endangering another person,3 escape,4 prisoner,5 assault theft by unlaw- ful or taking disposition.6 first contention is that the trial court erred in to

failing discharge him due to a violation of Pa.R.Crim.P. 140(f)(1) and Pa.R.Crim.P. that requiring issuing 1. 18 Pa.C.S. 3701. §

2. 18 2702. Pa.C.S. §

3. 18 Pa.C.S. 2705. §

4. 18 Pa.C.S. 5121. §

5. 18 Pa.C.S. 2703. §

6. 18 Pa.C.S. 3921. § fix a ‍​‌​​‌‌​​​​​​​‌​‌‌‌​‌‌‌​​​‌‌​‌​‌‌‌​‌​​‌​‌‌‌​​‌‌‌‌‍and hour arraignment day at a

authority which is not less than three nor hearing for the preliminary thereafter, be extended only than ten days more cause. lodged against in this case was complaint

The criminal 28, 1975, was not ar- on but Fеbruary he remained at large until March because raigned received written notice that his Appellant until that time. was scheduled for March but preliminary hearing hearing might told that issuing magistrate be that date due to the condition postponed beyond have to 10, 1975, was a preliminary of the Not until June deputies. held, and at that time a facie case was found prima against appellant. filed a for an extension of petition

The Commonwealth and John to trial bring appellant time which Sweitzer 1100(c), August Sep- under Pa.R.Crim.P. On held, 22, 1975, a on that motion was com- tember and his chal- bined with John motion to quash Sweitzer’s appellant’s to the of the chal- lenge array grand jury, of the The Commonwealth lenge array grand jury. extensions, were denied the defendants granted grand relief and on October requested, subse- Appellant returned an bill of indictment. approved of evi- change, suppression filed motions for venue quently dence, discovery inspection, bill of particulars, motion to the indictment. quash that the magistrate

It is basic contention date. How preliminary hearing had no cause to extend the ever, September our review of the record of the and the lower court’s of fact thereon findings 1975/ us that with persuade magistrate satisfactorily complied 140 and 142. The court found that on the date Pa.R.Crim.P. written notice was that provided appellant of arraignment, 17,1975, would be held on March but preliminary hearing wit inability virtue of the Commonwealth’s time, extension was almost nesses to testify April doctor testified that as of Ferguson’s certain. Deputy 30, 1975,, the was still deputy not able to testify. Deputy Sheriff Gormont’s doctor 19,1975, stated that not until June (after would he hearing) have approved ap- Gormont’s to pearing testify. judge found magistrate received word from the 21,1975, individuals on or about May could but they appear, he did not schedule the officer, because the immediately complaining Behe, Trooper was on vacation and would thereafter be in court. June 1975,was set as the earliest feasible date for the preliminary hearing. received Appellant notice of the June 10th pro- ceeding.

Several cases of this court shed light on the read- proper ing to be given 140(f)(1). Pa.R.Crim.P. In Commonwealth v. DeCosey, 246 Pa.Super. (1977), A.2d 905 wherein former Judge President Jacobs elucidated the purpose rule, we held that failure to comply with the rule does not entitle one to automatically discharge. We noted in that case that there is no right constitutional to a preliminary that its hearing, is purpose merely determine whether a facie prima defendant, case exists against and that it is not to substitute as a guilt-determining procedure. Judge Jacobs therein noted that

“One of the prejudices obvious to an accused resulting from a in the of a delay scheduling hearing preliminary fact, In incarceration. the hearing’s principal function is to protect an accused’s right against an unlawful deten- tion. Mullen, Commonwealth v.

(1975). Here, however, the defendant was released on bond, and when the only preliminary hearing finally held did he object Id., to its untimeliness.” 246 Pa.Super. 371 A.2d at 907. The court further noted that other than the four-day delay itself, no prejudice had been shown to have resulted to DeCosey. “His defense was in no Id. way impaired.”

Another case decided this just court after ‍​‌​​‌‌​​​​​​​‌​‌‌‌​‌‌‌​​​‌‌​‌​‌‌‌​‌​​‌​‌‌‌​​‌‌‌‌‍shortly DeCosey was Commonwealth v. Wansley, 375 A.2d 73 (1977),in which Judge again Jacobs wrote for a of this majority case, court. In that at the time of arraign- 140(f)(1) ment a date in with Pa.R.Crim.P. compliance Bail was set but not hearing. posted. set for the date, appeared requested the scheduled and appellant On continuance to secure counsel’s On the next presenсe. date, sought scheduled a continuance Commonwealth The district justice witnesses were not available. because continued the a second time due to the preliminary hearing witness, injured but inability produce Commonwealth’s reduced, set no certain date for the Bail was but hearing. remained incarcerated. The appellant’s peti- court, the lower but we by tion for was denied discharge We noted in Wans- appellant. reversed and discharged that while in some cases a cannot ley, preliminary scheduled in originally compli- be conducted when possibly 140(f)(1),“the necessity prevent- ance with Pa.R.Crim.P. a determination of custody pending probable ing prolonged remains, the existence of valid reasons for a cause despite 238, v. Wansley, supra continuance.” Commonwealth was A.2d at 75. We found that the fact that the time of and the ulti- arraignment incarcerated betweеn for the continuations hearing, mate and but preliminary been, would not have constituted the type prejudice case, judge frowned In the instant upon DeCosey. fact, that he was unchallenged appellant, below found as by arraignment the time between his during incarcerated thus we charges, on unrelated preliminary hearing find no inured to him.7 prejudice Wansley, supra, majority In noted v. Commonwealth 142, providing for the notation of continuances and fоotnotethat Rule docket, suspend magistrate’s did not the Act reasons therefor on the 1114. The court of June P.L. No. P.S. § § contrary, although appellant argued there is no stated that to the granting requirement testimony justify a continu that be taken to finally did not make We made note that the court below ance. appropriate Wansley Wansley. The result in docket entries in however, prejudice inuring appellant, and not to the due to case, mаgistrate’s inadequacy magistrate’s In the instant the at the of the records. However, sparse. as reconstructed records were September supplemented appeal victim-deputies, the record on ade the doctors of the two quately in this case was held establishes that the Pa.R.Crim.P. assertion that second within 180 days trial commence 1100(a)(2),8 requiring violated, and that he is of a written complaint, the filing 1100(f). See Pa.R.Crim.P. discharge. therefore entitled to We disagree. February case was filed on

The written this complaint herein involved. of the occurrences the same date bring appel- was therefore required The Commonwealth absent any to trial or before August lant 1100(d) or Pa.R.Crim.P. automatic exclusions of time under Pa.R. extensions in accordance with Commonwealth any Shelton, 469 Pa. 1100(c). Crim.P. case, the lower court found In the instant A.2d 694 and March complaint filing the time between the authori- whiсh was located the on day in magistrate before a local Pittsburgh presented ties was excludable under 123(a), with Pa.R.Crim.P. accordance Thus, the unavailability. 1100(d) appellant’s Rule because to bring appel- had until September Commonwealth lant to trial. and thus days well within the August

On filed a document 1100(c), the prosecution under Rule timely 1100 of entitled, Pursuant to Rule “Petition for Continuance The court the Rules Criminal Procedure.”9 Pennsylvania 3,1975, at petition Septembеr scheduled a on The assistant present. which his counsel were appellant and on the record the between delay district attorney explained He stated hearing. appellant’s arraignment preliminary possible can as soon as successfully the circumstances and that under delay. prejudice from the claim no 1100(a)(2)provides: in which a “Trial in a court case 8. Pa.R.Crim.P. against complaint the defendant after June written is filed (180) days eighty frоm the shall no later than one hundred commence complaint is filed.” date on which the was for an extension It is clear from its contents that the document continuance, overlook the we will therefore of time rather than a obviously caption, and court received error in the since the defendant Kincade, see, effective notice. But that it was that the matter would be although contemplated August, that session was not presented grand jury conducted. The next earliest time that the grand jury at which indictments could would be in session and be on 29th. The sought September was to commence Common- facts, wealth contended that based these the court upon should make a of due and extend the run finding diligence date of Rule 1100. objected, trial counsel that he had

Appellant’s contending knowledge no condition of the victims nor of physical the times or circumstances surrounding physicians’ ap- hearing. of their attendance at a Coun- proval sel insisted that the Commonwealth could not make merely assertions, required factual but was to substantiate them. The court the Commonwealth bore the agreed burden, and, objection, granted over Com- monwealth’s to continue the so that request victims and their could be physicians produced testify. The court date as subsequent hearing September set 19th, the continuance would not noting delay grand trial. one of the jury presentment physicians or Because 19th, was unable to on the appear finally 22,1975. finding conducted on The court made a September of due and extended the run date to diligence January 1976.10 argument is that Common appeal

wealth not exercise due in with diligence proceeding did and that therefore the Rule appellant’s preliminary hearing, 1100 extension was To the improperly granted. contrary, we сoncur with the of the court below that the findings entitled to the Commonwealth was extension. 22, 1975, justifies

The record of the September adequately court’s that the earliest date conclusion June was Although January beyond trial did not commence until any passage period, the extended we need not consider of time after elapsed, the made no further extension since the Commonwealth petition appellant objected, to which nоr did file a written dismiss, thereby waiving any objection. motion to

553 have officer could complaining the on which victims hearing; and the for the preliminary been present for the grand that in fact day. conducted 2, 1975, and the commenced on June term of court June then. not be the case present would able attorney district 29th. commence on September would grand jury The next for to secure the Commonwealth necessary was therefore It extension, properly the court below we hold that an Common- it a record that establishes upon granted due diligence. wealth’s is that the court erred third contention witnesses of six Commonwealth

permitting on the bill of indictment. names not endorsed whose were held on December all pre-trial applications At a on alia, inter it, the court had before for of for particulars a bill via request application “[t]he crimes.” of witnesses to any allegеd names and addresses Woodcock, ‍​‌​​‌‌​​​​​​​‌​‌‌‌​‌‌‌​​​‌‌​‌​‌‌‌​‌​​‌​‌‌‌​​‌‌‌‌‍Mr. coun- hearing, of the At the commencement co-defendant, stated: for appellant’s sel We endorsed on the indictment. have the names “[W]e en- of the witnesses that are would like the addresses Hearing (December on dorsed the indictment.” 2). at had discovery particular this argument

No further the court ruled: Accordingly, information. upon as names of the witnesses endorsed

“[Ijnsofar concerned, Bill of are the application Indictment witnesses is denied virtue the addresses of these upon transcript presently appear fact same readily and are available filed these matters (December defendants from said transcripts.” 7). Hearing had

First, former Pa.R.Crim.P. under discover names witnesses no automatic right v. intended to call. Commonwealth the Commonwealth Bederka, A.2d (1975); Pa.

Jones, The Common 245 Pa.Super. request for a bill so in its answer to respondеd wealth Second, it was the co-defendant’s who particulars. attorney then of scope narrowed the the at the December request 19th asking only for addresses of the witnesses hearing, named in the It this indictment. narrowed request which the to responded order. judge Appellant’s counsel offered no nor protest, proof did he offer of any “exception- al circumstances or reasons” to entitle to compelling him under discovery fоrmer. Pa.R.Crim.P. 310. note,

We is no finally, that there requirement the indictment the potential have names of all Common wealth witnesses endorsed thereon. 437, 192 A.2d

Gockley, (1963); Commonwealth v. Emmel, 194 Pa.Super. According we ly, find no error. assertion, merit,11 next which we find that the

is court below erred in charging the it jury that should receive the testimony with caution as it source, came from corrupt namely, his co-defendant’s accomplice. Sweitzer, co-defendant,

Robert did nоt testify trial, was the sole witness for the defense. In his charge jury, to the court below stated:

“Now, no rule of which there is law forbids the jury convicting upon uncorroborated ac- which, Appellant issue, meritorious, one more if raises would greater grant. entitle him to relief than we He asserts that because appeared indictments, the words “true bill” on the face of his quashed comply indictments should have been for failure to with 210(a), provides: which Pa.R.Crim.P. grand jury indictment, “After a has bill of considered the action, foreman ‘approved’ shall thereon endorse their either or ‘dismissed,’ sign shall it and he and record thereon the date ‍​‌​​‌‌​​​​​​​‌​‌‌‌​‌‌‌​​​‌‌​‌​‌‌‌​‌​​‌​‌‌‌​​‌‌‌‌‍of grand jury’s action.” “Heretofore, provides: The comment rule to the bill’ the words ‘true ‘ignored’ or were endorsed the bill of indictment. ‘not The term approved’ layman ‘ignored.’ sense makes more than the word discarding terminology Another reason for ‘true bill’ is that it has against connotаtion that accusation the defendant is true.” Appellant argues prejudiced he was because of the notation. However, expect upon hypertechnicality, relief such a when there possibility prejudice exposed no since the tried was not indictments, argument is a frivolous at best. conviction, such a it permits the law While complice. and, of proof, this character upon looks with disfavor not ordinarily the should corrupt, jury because its source is should is You present. on it unless corroboration rely of Mr. and deter- Noyer closely scrutinize the testimony to be Testimony exists. mine whether corroboration not relate to the main solely as corroboration need classed corroboration involved, but be considered as may fact material facts relates to relevant and testimony when the involved. relation to the main fact which have a direct does not have to extend to the testimony Corroborative If is shown that he whole of the it testimony. witness’s particulars, jury the important has testified some truly words, in others. In other infer that he has done so may corroboration, we refer to evidence when we speak witness, the given by which is to that supplementary and confirm it. strengthen which tends to for corroboration is fruit- However, even if search your less, accomplice’stestimony believe an jury, may the you, bеfore, As were told there ring if it has the of truth. you disbelieve the is no rule of law which commands you of an and the deter- testimony accomplice, uncorroborated corroboration is or the suffi- necessary, mination whether of such corroboration as be is ciency may present, solely for of the law is that only requirement you you. must, it, it accept carefully before scrutinize you (N.T. 332-33) added). critically.” (emphasis objected charge. Defense counsel Co-defendant’s objection noting counsel articulated Commonwealth, defense, for the not testifying source” “corrupt charge appropriate only and that accomplice prosecution. when an testifies for the Russell, We find 383 A.2d Commonwealth, (1978), a case of first in this impression Russell, of this issue. In the Commonwealth dispositive from one individual who claimed that he produced testimony crime, he organized when Russell and that presеnt lookout, was to act but withdrew from the enterprise. as a defense, Another of the testified for declar- perpetrators he ing that did not know the and that appel- lant was not involved in the criminal incident. The appel- lant also testified in his own behalf. The gave court “accomplice charge” as to both the Commonwealth defense witnesses. court held that supreme Our

“A charging basis exists for to view legitimate accomplice’s with whеn the suspicion accomplice witness, testifies for Commonwealth. out of a Such reasonable has an expectation leniency, interest however, This inculpating inapplicable, others. basis is when the testifies on accomplice behalf of the defense. in implicated One a crime cannot such reasonably expect others, where, as leniency exonerating particularly here, the witness has been sentencеd for already commit- Id., All Pa. at ting the crime.” 383 A.2d at 868-69. case, In the instant took the stand in appellant only his own His was testimony defense. not to certainly designed aid the Commonwealth in his prosecuting co-defendant. Nor was its function the exoneration of his co-defendant. Rather, his was addressed merely to his own defense.

The accomplice charge, long as recognized appropri ate when the testifies for the accomplice prosecution and Com might be his thereby prompted by hope leniency, Cristina, monwealth v. 481 Pa. (1978); 391 A.2d 1307 Thomas, Commonwealth v. 479 Pa. (1978); A.2d 820 Commonwealth v. Farquharson, 354 A.2d 545 Vorhauer, Commonwealth v. (1976); Pa.Super. (1974), A.2d 815 was in totally inappropriate this case. Had testimony attempted exculpate himself co-defendant, and inculpate his this would be a different Furthermore, case. But no such effort was made here. it would be the situation, co-defendant’s in that right, case, In the request cautionary charge. instant both appellant’s counsel and counsel for the object co-defendant ed to the and we find that charge, court erred in giving sentence and judgment vacate the We will therefore it. for a new trial.12 remand the case is vacated, and the case remand- of sentence Judgment opinion. with this a new trial in accordance ed for J., SPAETH, dissenting opinion. files a WATKINS, Judges, former President JACOBS or HOFFMAN, J., in the consideration partiсipate did not case. decision of this

SPAETH, Judge, dissenting: was held that the preliminary states majority Maj. arraignment. as after possible soon as unsupported by n. 7. This statement is opinion at 682 His on March arraigned record. Appellant delay 10. This was not held until June preliminary victimized depu- be on the that the justified ground cannot injuries because of their testify ties were unavailable to holding Common- majority until 21. Under May (1976), Rick, wealth v. not needed to bind presence deрuties court, appeared officer could have police since another Moreover, of the incidents. and summarized their accounts conducting even if some delay substan- the victims could testify, was warranted so that The record unjustified. still remains part delay tial testify by was available to Ferguson shows that Deputy 21.May was available 30, and that Gormont April Deputy after justification given delaying No available; follow- delay as for the beсame Deputy Ferguson 21, that a preliminary the lower court stated ing May officer, held the complaining could not be because Yet, need for this Behe, vacation. was on Trooper Indeed, remaining contentions. find no merit 12. We co-defendant, they questions Robert John are the same raised Sweitzer, per judgment curiam of sentence was affirmed whose 608, February Pa.Super. at 253 prejudicial not to the co-defend- error we here find was hаrmless and ant. 558

person, who does not seem to have been witness, ‍​‌​​‌‌​​​​​​​‌​‌‌‌​‌‌‌​​​‌‌​‌​‌‌‌​‌​​‌​‌‌‌​​‌‌‌‌‍a material at the unclear. circumstances,

Under these I do not believe that hearing was held as soon as Where possible. there has not been substantial compliance 140(f), with Rule defendant need not prejudice show for the indictment to be Commonwealth v. Riley, 260 Pa.Super. quashed. 393 (1978) (SPAETH, J., A.2d 1263 dissenting); v. Wansley, 248 Pa.Super. (1977) 375 A.2d 76 (SPAETH, J., concurring); Commonwealth v. DeCosey, (1977) (SPAETH, A.2d J., Here, concurring). there was not substantial compliance, and the indictments should have been quashed. A.2d O’REILLY, Appellant,

Frederick J. INDUSTRIES, CELLCO INC.

Superior Pennsylvania. Court of

Argued Oct. 1978. April Decided

Case Details

Case Name: Commonwealth v. Noyer

Court Name: Superior Court of Pennsylvania

Date Published: Sep 25, 1979

Citation: 402 A.2d 679

Docket Number: 705

Court Abbreviation: Pa. Super. Ct.