Commonwealth v. PurnellCommonwealth v. Purnell
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- Wieand
The trial court denied a Commonwealth petition to extend the time for commencing trial and dismissed criminal charges of aggravated assault and related offenses on grounds that the Commonwealth had violated
On January 22, 1983, Purnell was arrested for disorderly conduct after she had shouted and disrupted the efforts of police officers who were attempting to arrest her companion, a Mr. Steplight. Purnell was taken into custody and transported to the police station where, upon arrival, she threatened a police officer and kicked him in the groin, causing serious injury. A criminal complaint was filed the same day; it charged Purnell with aggravated assault, simple assault and terroristic threats. 2 The mechanical rúndate for Rule 1100 purposes, therefore, was July 21, 1983. A preliminary hearing was originally scheduled for February 7, 1983, but it was continued until February 15, 1983 at Purnell’s request. The preliminary hearing was held on February 15, and Purnell was bound over for court.
On August 8, 1983, both parties appeared before the Honorable William J. Manfredi. The Commonwealth was then prepared to proceed with trial. However, it was unaware that a motion to dismiss on the basis of
On November 3, 1983, the parties appeared before the Honorable John L. Braxton for hearing on pre-trial matters and also for trial. Judge Braxton denied the Commonwealth’s request for an extension and directed that the defendant be discharged. The request of the defendant for
The original rundate in this case was extended from July 21, 1983 to July 29, 1983 by virtue of the eight day delay caused by a defense requested continuance of the preliminary hearing. See:
Under Rule 1100(d), the Commonwealth may exclude not just the time that the defendant or his attorney is unavailable for trial, but the entire period of delay that results from such unavailability. Commonwealth v. Robinson, 498 Pa. 379, 384, 446 A.2d 895, 898 (1982) (sixteen day delay occasioned by need to put case on backup status behind two other cases at conclusion of defense continuance excludable); Commonwealth v. Millhouse, 470 Pa. 512, 518, 368 A.2d 1273, 1276 (1977). Thus a defendant, by his unavailability, may occasion a delay greater than the actual time of his unavailability. Commonwealth v. Colon, [317 Pa.Super. 412, 423, 464 A.2d 388, 394 (1983) ]; Commonwealth v. Perry, 296 Pa.Super. 359, [362,] 442 A.2d 808, 810 (1982).
Commonwealth v. Gorham,
341 Pa.Super. 499, 503-504, 491 A.2d 1368, 1370 (1985). Purnell’s trial would have commenced on May 9, 1983 had it not been for her failure to appear. That failure necessitated a rescheduling of the trial for August 8, 1983, the earliest date available after the bench warrant had been lifted. The entire period of this delay was caused by appellee’s unavailability and is, therefore, attributable to her and excludable. See:
Commonwealth v. Robinson, supra; Commonwealth v. Gorham, supra; Commonwealth v. Donaldson,
334 Pa.Super. 473, 483 A.2d 549 (1984);
Commonwealth v. Bankston,
332 Pa.Super. 393, 481 A.2d 672 (1984);
Commonwealth v. Ressler,
308 Pa.Super. 438, 454 A.2d 615 (1982);
Common
On November 3, 1983, the trial court denied the Commonwealth’s petition for an extension of time because, it concluded, the Commonwealth had failed to exercise due diligence. The lack of due diligence, the court held, had occurred when, on August 8, 1983, the attorney for the Commonwealth declined to argue Purnell’s motion to dismiss under
The Commonwealth has the burden of proving by a preponderance of the evidence that it has met the requirements of Rule 1100(c), i.e., that despite the exercise of due diligence it was unable to bring the [defendant] to trial within the prescribed period. Commonwealth v. Akridge, 275 Pa.Super. 513, 419 A.2d 18 (1980). However, the preponderance of the evidence standard is the least burdensome standard of proof known to the law. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). In reviewing the [trial] court’s ruling that the Commonwealth has or has not met its burden of proving due diligence we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which is uncontradicted. Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981).
Commonwealth v. Wroten, 305 Pa.Super. 340, 344, 451 A.2d 678, 680 (1982).
In the instant case, the record shows that the Commonwealth was ready to proceed to trial on August 8, 1983. On this date, however, the Commonwealth learned for the first time that there was an outstanding, but unserved, motion to dismiss. Through the fault of neither party, the trial court found, the Commonwealth had not received prior notice of Purnell’s motion. Under these circumstances we are unwilling to hold that the Commonwealth was required to
In a cross-appeal, Purnell contends that the trial court erred when it denied her motion to dismiss the charges on the basis of double jeopardy and/or
Section 110 of the Crimes Code requires the Commonwealth to consolidate in a single proceeding all known charges based on the same conduct or arising from the same criminal episode unless the court orders separate trials____ “The compulsory joinder rules set forth in ...section 110 were designed to serve two distinct policy considerations: (1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation.”
Commonwealth v. Webster,
323 Pa.Super. 164, 175, 470 A.2d 532, 537-538 (1983), quoting
Commonwealth v. Hude,
500 Pa. 482, 489, 458 A.2d 177, 180 (1983) (numerous citations omitted). See:
Commonwealth v. Bradfield,
352 Pa.Super. 466, 576, 508 A.2d 568, 574 (1986);
Commonwealth v. Meyers,
345 Pa.Super. 520, 525-526, 498 A.2d 945, 948 (1985). In
Commonwealth v. Hude, supra
500 Pa. at 491, 458 A.2d at 181, the Supreme Court stated that “in defining what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be con
In the instant case, Purnell was arrested for disorderly conduct after she had disrupted the efforts of Officer Zafirino to arrest Anthony Steplight. A police transport wagon was then called to the scene of the arrest, and Purnell and Steplight were both transported to the station-house. Upon arriving at the station and after being removed from the transport wagon, Purnell allegedly threatened and assaulted the wagon crew officer who had attempted to escort her into the police station. The officer assaulted by Purnell had not been present when Purnell was initially arrested but had been called to the scene after the arrest had been made for the purpose of transporting Purnell and Steplight to the stationhouse. Also, the officers who had effected Purnell’s arrest were not present at the stationhouse when the alleged assault occurred. Thus, the acts resulting in separate prosecutions had occurred at different locations, before different witnesses, and involved different victims. The factual issues are, therefore, separate and distinct, as are the legal issues. We conclude that under these circumstances the charge of disorderly conduct, to which Purnell entered a plea of guilty on February 23, 1983, was not part of the same criminal episode as the conduct resulting in charges of aggravated assault at the police station. See:
Commonwealth v. Lee,
291 Pa.Super. 164, 435 A.2d 620 (1981) (
The order denying a motion to dismiss on the basis of
Notes
. The record is unclear as to whether these were separate orders or whether both motions were disposed of in a single order. We will, therefore, consider the defendant’s appeal as a cross-appeal, which was timely filed in accordance with
. Appellee was charged separately with the misdemeanor of disorderly conduct stemming from her disruption of the efforts of the police to arrest her companion. On February 23, 1983, appellee entered a plea of guilty to this charge and was sentenced to pay a fine.
. The motion also is not a part of the record forwarded to this Court for review.