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COMMONWEALTH v. LORD (09/23/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: September 23, 1974.

COMMONWEALTH, APPELLANT,
v.
LORD

Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1970, Nos. 96 and 97, in case of Commonwealth of Pennsylvania v. Kenneth Lord.

COUNSEL

Michael F. Henry, David Richman, Bonnie B. Leadbetter, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.

Richard Lunenfeld, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 230 Pa. Super. Page 98]

This is an appeal by the Commonwealth from an order dismissing the prosecution of the appellee on the basis that the nolle pros. entered in this case, having once been entered, cannot be removed.

Appellee, Kenneth Lord, was arrested on December 3, 1969, as the result of a fire of the Simkins Box Company in Philadelphia on November 28, 1969, and was indicted on January 1, 1970, on two counts: arson and firing personal property. The lower court, on April 15, 1970, revoked appellee's bail and committed him for a psychiatric examination to determine competency to stand trial. As a result of the psychiatric examination on April 17, 1970, appellee was found competent to stand trial. However, after five continuances, the Commonwealth was still unprepared to go to trial, and on June 1, 1970, moved that all charges be nolle prossed. At the same time, the Commonwealth also petitioned the Court to commit the appellee to the Philadelphia State Hospital at Byberry pursuant to the provisions providing for civil court commitment under the Mental Health Act, Act of October 20, 1966, Special Sess. No. 3, P. L. 96, art. IV, § 406 (50 P.S. § 4406). The appellee and his father consented to the commitment order.

[ 230 Pa. Super. Page 99]

Appellee was arrested pursuant to a bench warrant issued on November 5, 1971, based on the violation of the order of civil commitment following appellee's unauthorized departure from the Philadelphia State Hospital on August 7, 1970. On March 9, 1972, the lower court removed the nolle pros. over defense counsel's objections and appellee was tried on April 17, 1972. Appellee waived a jury trial and was found guilty by the trial judge of arson and firing of personal property.

Subsequently, appellee filed timely motions for a new trial and in arrest of judgment contending that he was denied due process of law and effective assistance of counsel because his attorney acquiesced in and offered no challenge to the Commonwealth's lifting of the original nolle pros. entered on June 1, 1970. The motions were argued before the court en banc, which by opinion, dated February 8, 1973, ruled that "[b]y entering a nolle prosse and permitting the defendant to commit himself under Section 406 [of the Mental Health Act,] the Commonwealth effectively relinquished its right to seek further prosecution," and ordered a new trial for appellee. The Commonwealth filed a petition for reconsideration of the order on February 23, 1973, which was denied on March 16, 1973. The Commonwealth did not appeal the denial of this petition or the original order of the court en banc.

On August 9, 1973, the lower court held a hearing and subsequently ordered the dismissal of the indictments and the discharge of the appellee. The Commonwealth appealed from this order on August 30, 1973.

In its appeal, the Commonwealth contends that the court en banc erred in ordering a new trial, and, alternatively, that the lower court erred in dismissing the indictments and discharging the appellee.

I.

Initially, this court must consider the propriety of an appeal by the Commonwealth at this time of the

[ 230 Pa. Super. Page 100]

    order of the court en banc. The order of the court en banc was promulgated on February 8, 1973, and a direct appeal to this court raising an issue as to the validity of that order was not taken until six months later, August 30, 1973.*fn1

In taking an appeal, the appellant must comply with all applicable statutory requirements. Massachusetts Bonding & Insurance Company v. Johnston & Harder, Inc., 330 Pa. 336, 199 A. 216 (1938). Pursuant to the Act of July 31, 1970, P. L. 673, No. 223, art V, § 502 (17 P.S. § 211.502(a)) an appeal to this court "from any order shall be filed within thirty days of its entry." Time limitations for the taking of appeals have been strictly construed by Pennsylvania courts in the past. See, e.g., Commonwealth v. Peters, 178 Pa. Superior Ct. 82, 113 A.2d 327 (1955); Commonwealth v. Schneiderman, 162 Pa. Superior Ct. 461, 58 A.2d 196 (1948). It is also recognized that "[w]hen an Act of Assembly fixes the time within which an appeal may be taken, courts have no power to extend it or to allow an appeal nunc pro tunc, except where there is a showing of fraud or its equivalent." Commonwealth v. Wright, 187 Pa. Superior Ct. 39, 42, 142 A.2d 336, 337 (1958). See also Ifft v. Hunter, 202 Pa. Superior Ct. 487, 489, 198 A.2d 436, 437 (1964) ("we [Superior Court] must take notice of the defect [untimely appeal] and there is no room for the exercise of discretion on our part"); Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965) (cases cited therein); Commonwealth ex rel. Nicosia v. Nicosia, 184 Pa. Superior Ct. 440, 136 A.2d 135 (1957).

[ 230 Pa. Super. Page 101]

The Commonwealth has alleged no "fraud or its equivalent" in defense of its failure to make a timely appeal of the February 8, 1973, order of the court en banc; therefore, consideration of the validity of this order is not properly before this Court.*fn2

II.

Although we will not consider the validity of the February 8, 1973, order of the court en banc, we must examine the decision in order to resolve the second issue raised by the Commonwealth. The Commonwealth contends the dismissal of the indictments following a hearing on August 9, 1973, by the lower court, was in error as it did not properly carry out the court en banc's order for a new trial.

At argument, the Commonwealth contended that the nolle pros. was properly lifted on March 9, 1972, because it had been originally conditioned upon the defendant's and his parent's informed consent to civil commitment.*fn3 As further evidence, the Commonwealth submitted that the committing judge had committed

[ 230 Pa. Super. Page 102]

    defendant to the Philadelphia State Hospital on the condition that he was to "receive treatment for mental illness as an inpatient until further order of the Court." The Commonwealth also argued that the agreement to nolle pros. the charges in exchange for the psychiatric treatment through civil commitment was not in derogation of any of defendant's rights and constituted a condition precedent to the continued vitality of the nolle pros. Therefore, since the defendant had left the State Hospital illegally, the prosecution was properly reinstated.

In response, the defendant argued that the election of the nolle pros. by the Commonwealth was final and binding, and that if the Commonwealth had wished to keep its option of prosecution open the proper procedure would have been under Sections 407 and 408 of the Mental Health Act.*fn4

[ 230 Pa. Super. Page 103]

Furthermore, the defendant claimed that he was denied due process of law and effective assistance of counsel because his attorney acquiesced in and offered no challenge to the Commonwealth's lifting of the original nolle pros. entered on June 1, 1970.

In its opinion the court en banc agreed with the defendant's position and noted that the Commonwealth's "attempt to exploit its right to reinstate prosecution without the consent of the defendant . . . was a circumvention of the defendant's right to a full hearing on the issue of his mental state." Although the defendant had been found mentally competent to stand trial at least once before,*fn5 because of the defendant's

[ 230 Pa. Super. Page 104]

    civil commitment, the Commonwealth should have availed itself of Section 409(c) of the Mental Health Act*fn6 and before the trial of April 17, 1972, had a due process hearing on the issue of changes in defendant's mental status rendering him potentially competent to stand trial. The court en banc also noted that the fact that defendant's attorney failed to raise the competency issue at the April 17, 1972, trial and his insistence to the trial judge that his client was fully competent "compounded the constitutional error and sealed his client's doo m."

In conclusion, the court en banc stated that: "[b]y entering a nolle prosse and permitting the defendant to commit himself under Section 406 the Commonwealth effectively relinquished its right to seek further prosecution[;]" and that "[d]ue process of law demands that the defendant have a full and fair hearing on the issue of his competence to stand trial and on the effect of the nolle prosse on the Commonwealth's pursuit of prosecution after its election of a Section 406 commitment, and its abandonment of the clear and manageable statutory alternative which would have preserved both the Commonwealth's and the defendant's interests in fundamental justice."

The court en banc then granted defendant a new trial.

On August 9, 1973, a hearing was held at which time the lower court considered the opinion of the

[ 230 Pa. Super. Page 105]

    court en banc and as a result dismissed the indictments against defendant. The order was based on what the lower court construed to be the mandate of the court en banc. Essentially, the hearing judge ruled, after argument, that the court en banc had found that the Commonwealth had "effectively relinquished its right to seek further prosecution," and, therefore, to proceed with a further trial would in effect constitute a reversal by a single judge of a judicial finding of the full court. See Commonwealth v. Youngblood, 453 Pa. 225, 307 A.2d 922 (1973); Commonwealth v. Ware, 438 Pa. 517, 265 A.2d 790 (1970); Commonwealth v. Bonser, 215 Pa. Superior Ct. 452, 258 A.2d 675 (1969).

In response, the Commonwealth argued at the hearing that only a new trial would properly effectuate the order of the court en banc and noted that a motion for a new trial had been before the court en banc and they had not so ruled.*fn7

We find that the hearing judge properly dismissed the indictments against the defendant. From a reading of the opinion of the court en banc, the only issue to be reviewed by a hearing court is whether or not the Commonwealth had relinquished its right to further prosecution. This was to be accomplished by two full and fair hearings: one on competence to stand trial, and

[ 230 Pa. Super. Page 106]

    the other on the effect of the nolle pros. on the Commonwealth's pursuit of prosecution. However, a holding in favor of the defendant in either of these hearings would obviate the need for a new trial. In any event, a new trial would be proper only if the Commonwealth prevailed at both hearings.

At the August 9, 1973, hearing, the hearing judge sufficiently considered the effect of the nolle pros. in the Commonwealth's right to further prosecution, and found that the court en banc's findings necessitated the dismissal of the indictments. The hearing was properly not an evidentiary hearing, since the issue presented was purely a legal one and was correctly determined in accordance with the opinion of the court en banc. Therefore, we agree with the hearing judge's determination that a reading of the opinion of the court en banc in its entirety indicated the holding that the procedures followed by the Commonwealth precluded further prosecution in this case.*fn8

The order of the court below dismissing the indictments is affirmed.

Disposition

Order affirmed.


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