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decided: February 4, 1981.


No 24 January Term, 1979, Appeal from the Order of the Court of Common Pleas of Wayne County, Criminal Division, at Nos. 101-101(e) January Term.


Stephen G. Bresset, Asst. Dist. Atty., for appellant.

William R. Lee, Christopher T. Powell, Peter T. O'Malley, Scranton, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion. Nix, J., filed a dissenting opinion.

Author: Kauffman

[ 493 Pa. Page 67]


The Commonwealth appeals from an order pursuant to Pa.R.Crim.P. 1100(f) dismissing murder and related charges against appellee, Anthony Genovese, arising out of the death of a 23 month old infant.*fn1 The sole issue presented is whether the 180 day period mandated by Rule 1100 commences on the date of filing the first or the second criminal complaint when all charges contained in the first complaint have been dismissed at a preliminary hearing for failure to state a prima facie case, when there has been no improper effort by the Commonwealth to circumvent Rule 1100, and when the accused has been rearrested on the same charges. Because the trial court erroneously calculated the Rule 1100 run date from the filing of the first complaint, we reverse and remand for trial.*fn2

On Christmas morning, 1977, the Honesdale Ambulance Corps responded to an emergency call from the home of Larraine Forry and appellee, where they found Ms. Forry's 23 month old daughter, Christine, in an unconscious state. The child was taken immediately to the Community Medical Center in Scranton, where she died four days later as a result of a fractured skull. After a police investigation, appellee was arrested on March 24, 1978 and charged with murder, voluntary manslaughter, involuntary manslaughter, reckless endangerment, aggravated assault and endangering the welfare of a child.

[ 493 Pa. Page 68]

The preliminary hearing commenced on April 3, 1978 and, after various delays and motions not here relevant, was scheduled to recommence on May 10, 1978. On May 3, 1978, however, the defense filed a motion to secure the attendance of Dr. Dominic J. DiMaio, an out-of-state witness.*fn3 The motion was denied the following day, whereupon defense counsel immediately petitioned the court for and received permission to depose Dr. DiMaio.*fn4 The deposition originally was scheduled for May 19, 1978. However, on May 9, 1978, the Commonwealth filed with this Court a Petition for Review in the Nature of a Writ of Prohibition seeking to prevent the taking of Dr. DiMaio's deposition.*fn5 We denied the Commonwealth's petitions on May 23, 1978, and the deposition was rescheduled for July 7, 1978.

In the interim, the original district justice resigned and another was specially assigned to conduct the preliminary hearing. On August 22, 1978, after hearing testimony for three days and following appellee's challenge to the sufficiency of the Commonwealth's evidence, the new district justice dismissed all charges for lack of a prima facie case and released appellee from bail.*fn6 It is thus clear from the record that appellee was not discharged at the preliminary hearing at the request or instigation of the prosecutor, but only because the Commonwealth failed to persuade the district justice that it had presented a prima facie case. There is no evidence of any attempt by the Commonwealth to evade the mandate of Rule 1100.

On September 11, 1978, a second complaint, containing charges identical to those previously dismissed, was filed before a third district justice, and appellee was arrested the

[ 493 Pa. Page 69]

    next day.*fn7 Following a preliminary hearing, the district justice concluded that the Commonwealth had established a prima facie case.*fn8

On December 20, 1978, appellee filed a motion to dismiss all charges with prejudice pursuant to Pa.R.Cr.P. 1100(f), claiming that in excess of 180 days had passed since the filing of the original complaint.*fn9 The motion was granted on January 18, 1979, and this appeal by the Commonwealth followed.*fn10

Rule 1100 "serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2)

[ 493 Pa. Page 70]

    the protection of society," Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, n.4, 409 A.2d 308, n.4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

In Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) (plurality), this Court was confronted with the very issue now before us, and we expressly held that the 180 day period commences from the filing of a second complaint. In Cartagena, as here, all charges against the defendant were dismissed at the preliminary hearing for lack of a prima facie case and the defendant was discharged. Three days later, another complaint based on the same episode was filed, the defendant was rearrested, and after a second preliminary hearing, he was held over for trial. On these facts, we held that the Rule 1100 period ran from the filing of the second complaint: "Even though based on the same episode, the second criminal complaint . . . was the one which commenced this prosecution. As such, appellant's trial was commenced within 180 days . . ." 482 Pa. at 19-20, 393 A.2d at 357.*fn11

[ 493 Pa. Page 71]

Appropriate computation of the 180 day period was further refined in Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979). Therein, a complaint was filed against the defendant, but the grand jury refused to indict. After obtaining additional evidence, the Commonwealth resubmitted the matter to a new grand jury and an indictment was returned. On these facts, this Court excluded from the Rule 1100 computation the time period between the refusal of the first grand jury to indict and indictment by the second grand jury.*fn12

Unlike the case before us, Johnson involved only one complaint, and in fact proceeded to trial without a second complaint ever being issued.*fn13 Here, once the first complaint was dismissed, it became a nullity for all purposes, including Rule 1100. As in Cartagena, supra, "the second complaint . . . was the one which commenced this prosecution," 482 Pa. at 19, 343 A.2d at 357, and there is no evidence of a prosecutorial plan to avoid the mandate of the Rule. It follows, therefore, that the 180 day period must commence from the filing of the second complaint.*fn14

[ 493 Pa. Page 72]

The result we reach has been followed consistently by the Superior Court*fn15 and is supported by the relevant provisions of the ABA Standards Relating to Speedy Trial:

2.2. When time commences to run.

The time for trial should commence running, without demand by the defendant, as follows:

(b) if the charge was dismissed upon motion of the defendant and thereafter the defendant was held to answer or charged with an offense, from the date the defendant was so held to answer or charged, as above . . . .

ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, ยง 2.2(b) (Approved Draft, 1968).*fn16

So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system. Neither

[ 493 Pa. Page 73]

    the language nor the spirit of Rule 1100 is inconsistent with the logical, common sense conclusion that the 180 days must run from the filing of the second complaint, the one which commenced this prosecution.

Accordingly, we reverse the order of the Court of Common Pleas and remand for trial.

ROBERTS, Justice, dissenting.

For the reasons set forth in the opinion of Chief Justice Eagen in Commonwealth v. Brocklehurst, 491 Pa. 151, 420 A.2d 385 (1980) (Eagen, C. J., joined by Roberts & Nix, JJ., dissenting), it must be concluded that this trial was not commenced within the 180-day period permitted under Pa.R.Crim.Proc., 1100(a)(2). Appellee moved to dismiss the charges 271 days after his initial arrest. Even excluding the twenty days between the dismissal of the first complaint and the filing of the second, see Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979), trial here would have been untimely.

As Chief Justice Eagen observed, "the cases have consistently attempted to effectuate the policies behind Rule 1100 which include the placing of limitations on 'disruption of employment, curtailment of associations, subjection to public obliquy, and creation of anxiety.'" Brocklehurst, supra, 491 Pa. at 159, 420 A.2d at 390. As in Brocklehurst, here the majority "[fails] in [its] attempt to effectuate the policy underlying the rule because [it fails] to acknowledge that during the life of the first complaint an accused is confronted with the factors which the rule should limit." Id.

Unlike the approach of the majority here and in Brocklehurst, the approach of Chief Justice Eagen does not permit the prosecution to subject the accused to multiple, unsuccessful efforts to initiate charges with impunity. Instead, his approach, which excludes only that period between the dismissal of a first complaint and the filing of a second,

[ 493 Pa. Page 74]

    properly gives full effect to the interests embodied in Rule 1100.

Because the interests of Rule 1100 have been frustrated here, the order of the trial court dismissing the charges against appellant should be affirmed.

NIX, Justice, dissenting.

The majority seeks to justify its manipulation of the clear language of the rule and the undermining of its scheme by suggesting they are serving a societal purpose by doing so. This view ignores society's great interest in prompt trial in criminal cases. Even the novice is aware that the most effective weapon in the arsenal of defense lawyers in criminal cases is delay. In most of the blatant instances where the guilty were acquitted, delay was either the sole or a major contributing factor. The prompt trial in criminal cases is in the best interest of the public and decisions undermining that objective are not.

As the majority acknowledges and then ignores, Rule 1100 was drafted to serve this societal interest as well as to protect the accused's constitutional right to a speedy trial, it flowed from a judgment that a presumptive period should be established to avoid the uncertainty created by the test articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). That period was arrived at after input was received from members of the bar throughout the Commonwealth. Consideration was given to the unique problems of the various judicial districts. The attempt to accommodate all legitimate concerns was evidenced by the fact that initially a much longer period was prescribed to permit adjustment to the rule. The period finally arrived at was deemed to be a reasonable time in which to bring a criminal case to trial. Where the trial cannot be commenced, with reasonable diligence, within the prescribed period, the Commonwealth has the option of seeking an extension. There is no limitation on the number of extensions or the length of the extensions. The only requirement is that the Commonwealth must show that it has proceeded

[ 493 Pa. Page 75]

    with due diligence. A proper determination of due diligence must take into account factors such as case load and the resources available to the prosecutor. A denial of a petition for extension is subject to appellate review. Here the Commonwealth sought an extension within the prescribed period and was denied the relief sought on the basis that they had failed to establish "due diligence." This decision was not appealed. The Commonwealth had the option of seeking interlocutory review under the authority of Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). The Commonwealth elected not to seek review which suggests an implicit concession that they did not exercise "due diligence." Finally, periods of delay attributable to the defense are automatically excluded from the computation. Thus there can be no legitimate excuse for a prosecutor allowing a prosecution to be barred under the provisions of the rule. Nor can such a result occur except where the prosecutor has failed to act with due diligence.*fn1

The majority states and I agree, "Strained and illogical judicial construction adds nothing to our search for justice, . . ." (at 371). It is my view that the result reached today is in fact a "strained and illogical judicial construction." The rule states in the clearest possible language that trial must be commenced within the prescribed period starting from the date "in which a written complaint is filed against the defendant." Since there were two complaints filed in the case, the only question presented was which complaint determines the commencement of the presumptive period.

In Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979), we attempted to resolve the problems raised in cases where there was a hiatus between the original initiation of the prosecution and the commencement of trial. In Johnson

[ 493 Pa. Page 76]

    we were successful in gaining the agreement of six of the seven members of the Court at that time.*fn2 There we held that only the period during the hiatus should be excluded from the computation. In Johnson we further stated:

Id., 487 Pa. at 204, 409 A.2d at 311.

The majority seeks to distinguish Johnson in this factual situation on the grounds that in Johnson there was only one complaint filed. This analysis is in my judgment superficial and ignores the clear meaning of the Johnson decision. In this case, we are faced with a rearrest after a determination by the original district justice that there was not a prima facie case. There was no allegation that the complaint was defective, in fact the second complaint was identical to the first. Thus the interruption did not occur because of a deficiency in the complaint but rather as the result of an apparently erroneous judgment of the first district justice.*fn3 The rearrest procedure does not necessarily require the filing of a new complaint. Thus if we accept the majority's attempt to distinguish Johnson, we would have to conclude the applicability of the Johnson rationale would be dependent upon whether the Commonwealth elected to file a second paper reciting verbatim the contents of the first. Such a trivial basis for determining substantial rights is abhorrent in an enlightened society.*fn4

[ 493 Pa. Page 77]

Since there was a viable and effective complaint originally filed in this case, the period of time that complaint was in effect cannot be ignored for purposes of Rule 1100.*fn5 I would agree that the period between August 22, 1978 and September 11, 1978 was properly excludable under the teaching of Johnson. Since the exclusion of this period of time does not satisfy the presumptive period, I must dissent.

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