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COMMONWEALTH v. MARKLE (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
MARKLE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Berks County, Nos. 228 and 229 of 1972, in case of Commonwealth of Pennsylvania v. Joseph Michael Markle.

COUNSEL

William F. Ochs, Jr., Assistant Public Defender, for appellant.

Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, Price, and Van der Voort, JJ., dissent as to Indictment No. 228. Concurring Opinion by Cercone, J. Spaeth, J., joins in this concurring opinion.

Author: Hoffman

[ 239 Pa. Super. Page 507]

Appellant was convicted of two burglaries at two separate trials, one pursuant to Indictment No. 228 of 1972 and the other pursuant to Indictment No. 229. All the issues raised in the appeal from Indictment No. 229 are also raised in the appeal from Indictment No. 228.

[ 239 Pa. Super. Page 508]

Thus, the cases were consolidated for appeal. This Opinion will be divided into two parts: the first will discuss the contentions advanced in the appeal from Indictment No. 229; the second will discuss the additional arguments applicable only to the appeal from Indictment No. 228.

I. INDICTMENT NO. 229

Appellant was arrested on charges arising out of the burglary of a residence in Hereford Township, Berks County, that took place on August 19, 1970. A preliminary hearing was held on February 14, 1972, and appellant was indicted on May 8, 1972, for burglary, larceny, receiving stolen goods, and conspiracy. On May 31, 1972, appellant filed a motion to quash the indictment, in which he alleged that he had not been afforded the benefit of counsel at the preliminary hearing. The lower court quashed the indictment on September 15, 1972, and directed that a new preliminary hearing be held. Appellant was represented by counsel at the second preliminary hearing on October 26, 1972. The indictment was reissued, under the same term and number as the indictment that had been quashed, on February 26, 1973. Appellant filed a second motion to quash on March 8, 1973. The docket entries reveal that on March 29, 1973, the case was continued until June at the appellant's request. On December 3, 1973, the lower court dismissed the larceny, receiving stolen goods, and conspiracy charges, because the applicable limitations period had expired. In regard to the burglary charge, however, the motion to quash was denied. See 19 P.S. § 211. Appellant proceeded to trial on April 16, 1974, and was found guilty.

Appellant's first contention is that the Commonwealth was precluded from taking any action on Indictment No. 229 of 1972 after it was quashed by the

[ 239 Pa. Super. Page 509]

    lower court.*fn1 This argument is without merit. It is obvious that the court below initially quashed the indictment because it was procedurally infirm, not because it was substantively insufficient. Had the court not quashed the indictment, and had appellant been subsequently convicted, the appellate remedy would have been to order a new trial. See, e.g., Commonwealth v. Redshaw, 226 Pa. Superior Ct. 534, 323 A.2d 92 (1974). The reissuance of an indictment and subsequent trial does not constitute double jeopardy: "Jeopardy attaches in a case without a jury when the accused has been subjected to a charge and the court has begun to hear evidence . . . ." Commonwealth v. Culpepper, 221 Pa. Superior Ct. 472, 293 A.2d 122 (1972). Thus, the nolle prosse of an indictment does not prevent the issuance of a second indictment for the same offense: "We agree with the Court below that no conceivable harm resulted to defendant in being thus tried and convicted on the second indictment, with the first ultimately being nolle prossed. This did not constitute double jeopardy. Commonwealth v. Hart, 427 Pa. 618, 620, 235 A.2d 391 (1967). Appellant's argument appears to be that it was error for the Commonwealth to issue a second indictment at the same term and number as the indictment that had been quashed. The lower court held that the Commonwealth used the same number simply as a matter of administrative convenience. Certainly, appellant has alleged no prejudice, other than the fact of his conviction. Thus, the lower court properly refused to award a new trial on this basis.

Appellant's second contention is that he was denied

[ 239 Pa. Super. Page 510]

    his constitutional right to a speedy trial. Because Rule 1100 is not applicable*fn2 to the instant case, appellant's claim must be decided under the balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972), and adopted in Pennsylvania in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). The United States Supreme Court listed four factors which must be balanced in order to determine whether a criminal defendant was denied his right to a speedy trial: the length of the delay; the reason for the delay; the defendant's assertion of his right; and the prejudice to the defendant. It is obvious that appellant has failed to assert any prejudice.*fn3 Furthermore, appellant effectively agreed to the delay: "Pennsylvania has long had a 'two term' or '180-day' rule providing for the discharge from imprisonment of any accused who has not been tried the second term after his commitment . . . unless the delay happens on the application of or with the assent of the accused." Commonwealth v. Hamilton, supra at 303-304, 297 A.2d at 130. (Emphasis added). The docket entries reveal that when appellant requested a continuance on March 29, 1973, he expressly waived his right to the benefit of the "two term" rule. Under the circumstances of this case, therefore, the court below did not err in denying appellant's speedy trial contention.

Appellant's final contention is quite brief: "It is noted that the charge of Larceny was quashed. It is therefore contended that the Court in allowing testimony as to a larceny was [committed?] reversible error." Under the

[ 239 Pa. Super. Page 5111939]

Penal Code, burglary was defined in the following manner: "Whoever, at any time, wilfully and maliciously, enters any building, with intent to commit any felony therein, is guilty of burglary . . . ." 18 P.S. § 4901.*fn4 (Emphasis added). Thus, it was incumbent upon the Commonwealth to prove that appellant had the requisite intent in order to prove appellant guilty of burglary. Any facts relating to larceny would, therefore, be highly relevant: "The specific intent required to make out a burglary charge may be found in appellant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom. Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963); Commonwealth v. Bova, 180 Pa. Superior Ct. 359, 119 A.2d 866 (1956). However, if actions are relied upon, they must bear a reasonable relationship to the commission of a felony. Commonwealth v. Ellis, 349 Pa. 402, 37 A.2d 504 (1944); Commonwealth v. Reynolds, 208 Pa. Superior Ct. 366, 222 A.2d 474 (1966)." Commonwealth v. Garrett, 229 Pa. Superior Ct. 459, 463-464, 323 A.2d 314 (1974). Conduct amounting to the commission of a larceny was properly admitted as evidence of appellant's intent at the time of entry.

Because all the issues raised in the appeal from the judgment of sentence imposed pursuant to Indictment No. 229 are without merit, the judgment of sentence is affirmed.

II. INDICTMENT NO. 228

The three issues discussed above were also raised in this appeal, and are rejected for the identical reasons. In this appeal, however, five additional assignments of error are raised, one of which requires a reversal and new trial.*fn5

[ 239 Pa. Super. Page 512]

In order to discuss appellant's argument, it is necessary to set forth the circumstances under which appellant was arrested and tried. One Morris P. Hendricks pleaded guilty to approximately sixty burglaries committed in five counties. After Hendricks confessed, he acted as a confidential police informant. Hendricks told the police that he, one Thomas McDonald, and a third man, known to him only as "Joe from Philadelphia," had committed a burglary on September 11, 1970, in Berks County. Hendricks supplied the police with a description of the third person involved, and he subsequently identified appellant from police photographs.

At appellant's trial, during the redirect examination of Pennsylvania State Trooper Brunozzi, the following colloquy occurred:

"Q. And has Mr. Hendricks, since his initial arrest back in November of 1970, cooperated with the state police?

"A. Yes, he has, very much so.

"Q. And you say there were approximately 60 ...


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