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COMMONWEALTH PENNSYLVANIA v. DANIEL KELLIE (02/01/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 1, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL KELLIE, APPELLANT

No. 2018 October Term 1978 Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division at No. 6291 of 1976.

COUNSEL

Frank J. Marcone, Media, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Spaeth

[ 275 Pa. Super. Page 108]

This is an appeal from a judgment of sentence entered after a jury convicted appellant of simple assault.*fn1

1

Appellant first argues that he should be discharged because he was not tried within the period required by Pa.R.Crim.P. 1100.

On September 18, 1976, appellant was involved in a fight at a bar in Springfield Township, Delaware County. On September 20, one Michael Dimeglio signed a private criminal complaint against appellant before a District Justice. On September 22, the private complaint was approved by an Assistant District Attorney for Delaware County. On October 4, the complaint was filed and sworn to at the office of the District Justice and certified by him for issuance of an arrest warrant. On March 28, 1977, the Commonwealth petitioned for an extension of time, within which to bring appellant to trial. Appellant did not file an answer to this petition. On April 22, the lower court granted the Commonwealth an extension until September 29, 1977. On September 19, the Commonwealth again petitioned for an extension of time; again appellant did not file an answer. On October 14, the court granted an extension until January 31, 1978. On January 19, appellant petitioned to dismiss the case under Pa.R.Crim.P. 1100(f). The court denied the petition, and the trial commenced on January 24.

Pa.R.Crim.P. 1100(a)(2) states:

Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

Appellant argues that the complaint was "filed" on September 20, 1976, when Michael Dimeglio signed it before the District Justice. If appellant is right, the run date would be

[ 275 Pa. Super. Page 109]

March 21, 1977,*fn2 from which it would follow that the Commonwealth's petition, which was filed on March 28, was untimely, and appellant would be entitled to be discharged. The Commonwealth argues that the complaint was not "filed" until after the Assistant District Attorney had approved it and the District Justice had signed it, that is, until October 4, 1976, making the run date April 4, 1977,*fn3 and the March 28 petition timely.

While there are no cases deciding this issue, the case law dealing with Pa.R.Crim.P. 1100(a)(2) supports the Commonwealth's position. In Commonwealth v. Silver, 238 Pa. Super. 221, 357 A.2d 612 (1976), this court had to decide whether the period under Rule 1100 started to run when a presentment was filed by an investigating grand jury. In holding that it did not, we said:

When a written complaint is filed, on the other hand, prosecutorial forces are quickly brought to bear against the named individual. If he is not already in custody the issuing authority, upon approving the complaint, will issue a summons or warrant of arrest. See Pa.R.Crim.P. 134 and 102. If a summons is used the defendant will be commanded to appear for a preliminary hearing. Pa.R.Crim.P. 110; if he fails to comply an arrest warrant will follow, Pa.R.Crim.P. 113. If an arrest warrant is used the defendant will be taken without unnecessary delay for a preliminary arraignment, Pa.R.Crim.P. 122, 130, which will be followed within three to ten days by a preliminary hearing. Pa.R.Crim.P. 140.

It is clear that this activity, whether it be complaint followed by summons or arrest, or arrest followed by complaint and preliminary arraignment, has immersed the defendant in the intricacies of substantive and procedural criminal law. The defendant has been confronted "with

[ 275 Pa. Super. Page 110]

    the prosecutorial forces of organized society," Kirby v. Illinois, supra 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) at 689 [92 S.Ct. at 1882]; see Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), and must begin to deal with the consequences of these forces. By virtue of the presentment of the investigating grand jury, however, the defendant is not so positioned. He is subject neither to arrest nor to summons.

238 Pa. Super. at 229-30, 357 A.2d at 616.

In Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), the Commonwealth argued that the period under Rule 1100 did not begin to run until ("the complaint should be deemed filed as of") the preliminary arraignment. Id., 470 Pa. at 560, 372 A.2d at 829. Rejecting this argument, the Court held that "the criminal proceedings begin with the presentation of the complaint to the court, and thus, for purposes of Rule 1100, the complaint is deemed filed and the mandatory period commences with the presentation." Id., 470 Pa. at 559, 372 A.2d at 829 (footnote omitted). In coming to this conclusion, the Court alluded to the same concerns as we had in Silver : "In the situation of an arrest pursuant to a warrant, the complaint is filed prior to arrest, and thus considerations such as disruption of employment, curtailment of associations, subjection to public obloquy, and creation of anxiety, Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); Commonwealth v. Silver, 238 Pa. Super. 221, 357 A.2d 612, are brought to bear prior to arrest." Id., 470 Pa. at 561, 372 A.2d at 830. Finally, in Commonwealth v. James, 258 Pa. Super. 157, 392 A.2d 732, 738 (1978) (concurring opinion), two members of this court reached the Pa.R.Crim.P. 1100 issue and concluded that "it is plain from Rule 1100 that the actual issuance of process [a warrant or summons] is not the event that triggers the running of the Rule; if it were, subsections (a)(1) and (2) would read differently. It thus appears that the Supreme Court, through its Rules Committee, has determined that criminal proceedings commence when process may potentially issue, rather than when it actually does issue." (Emphasis added.).

[ 275 Pa. Super. Page 111]

In the case before us, no process could issue until October 4.*fn4 Until then appellant was not subjected to any of the disruptions discussed in Silver v. Mitchell. We therefore hold that the period under Rule 1100 did not start to run until October 4.*fn5

[ 275 Pa. Super. Page 1122]

Appellant's second claim is that the Commonwealth engaged in discriminatory prosecution by failing to prosecute a cross-criminal complaint filed by appellant against Michael Dimeglio. In Goodman v. Kennedy, 459 Pa. 313, 328, 329 A.2d 224, 232 (1974), the Supreme Court stated that in order to prove discriminatory enforcement of a law, "[a] purposeful discrimination must be shown and we cannot presume such discrimination. Snowden v. Hughes, 321 U.S. 1 [64 S.Ct. 397, 88 L.Ed. 497] (1943); Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220] (1885)." Here, appellant made no showing that the Commonwealth had purposefully discriminated against any party in its prosecution of the complaints arising out of the incident.


*fn* President Judge JOHN Q. STRANAHAN, of the Court of Common Pleas of Mercer County, Pennsylvania, and Judge LEONARD SUGERMAN, of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.


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