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COMMONWEALTH PENNSYLVANIA v. JERRY ARDOLINO (09/03/82)

filed: September 3, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JERRY ARDOLINO, APPELLANT



No. 112 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Allegheny County, at No. 7903863A.

COUNSEL

Donald R. Calaiaro, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Brosky and Cirillo, JJ.

Author: Cercone

[ 304 Pa. Super. Page 269]

The instant case presents us with a direct appeal from judgments of sentence entered against appellant following his conviction on charges of receiving stolen property and resisting arrest.*fn1

On November 1, 1978 two color television sets were unlawfully removed from the premises of the West Liberty Athletic Association in the City of Pittsburgh. A certain Matthew Smith a/k/a Atom Ant was later implicated in the crime. Smith told Pittsburgh police that he had sold the televisions to appellant. On February 23, 1979, with Smith in tow, Pittsburgh police Detectives Wolfe and Parsons, accompanied by uniformed officers of the Mt. Oliver Borough Police Department, proceeded to appellant's Mount Oliver residence to question him about the television sets, and to recover the same. The peace officers approached appellant in his garage and questioned him about the televisions and about his acquaintance with Smith. Appellant denied any knowledge of "Matthew Smith," but when the police pointed to Smith, who had remained seated in their car, appellant acknowledged knowing him as "Atom Ant."

[ 304 Pa. Super. Page 270]

He then volunteered the information that when he purchased the sets from Smith he knew them to have been stolen, and that he subsequently sold them to two other persons. The police immediately read him his Miranda rights and placed appellant under arrest. Detectives Wolfe, Parsons and appellant then drove around Allegheny County in an attempt to locate the stolen televisions. An hour and a half after his arrest appellant was taken to the Pittsburgh Public Safety Building where he was once again read his Miranda rights. Appellant executed a "rights waiver form" and wrote out his responses to various questions the police put to him. Additionally, a conversation between appellant and the police concerning the crime was tape recorded with appellant's permission. During this conversation appellant again admitted purchasing the televisions from Smith with the knowledge that they were stolen.

On the same day as his initial arrest a complaint was filed against appellant formally charging him with receiving stolen property and conspiracy.*fn2 Based on this complaint appellant was re-arrested on February 27, 1979. He was held for court on the charges by the local magistrate on March 1, 1979. Upon the motion of the Allegheny County district attorney the motions judge of the criminal division of common pleas court entered an order for nolle prosequi as to these charges on April 25, 1979. Neither appellant nor his

[ 304 Pa. Super. Page 271]

    attorney was notified of the Commonwealth's intention to present the nolle prosequi motion, nor did either of them attend the hearing on the motion. The basis for the motion was the district attorney's belief that the February 23 complaint contained a substantive defect which could not be cured pursuant to Rule 150 of the Pennsylvania Rules of Criminal Procedure.

A second complaint alleging the charge of receiving stolen property, but not the conspiracy charge, was filed May 4. Eighteen days later Detectives Wolfe and Parsons, again accompanied by uniformed Mt. Oliver police officers, went to appellant's home to execute the new arrest warrant. Appellant, aided by his brother, resisted this arrest, but the peace officers were able to take him into custody nonetheless. With the approval of the district attorney and the magistrate this second complaint was withdrawn on May 30, 1979. The record before us does not show whether appellant or his counsel agreed to this withdrawal.

On June 1, 1979 a third complaint was filed against appellant. This complaint charged him not only with receiving stolen property but with resisting arrest as well.*fn3 Appellant was arrested yet again on June 19, and arraigned. A preliminary hearing was held on June 29, 1979 ...


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