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COMMONWEALTH PENNSYLVANIA v. SAMUEL J. GEMELLI (03/23/84)

filed: March 23, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
SAMUEL J. GEMELLI



No. 1048 Pittsburgh 1982, No. 1248 Pittsburgh 1982, Appeal from the Orders dated September 7 and 24, 1982, Court of Common Pleas, Erie County, Criminal Division at No. 356 of 1982.

COUNSEL

Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellant.

Jay Nedell, Erie, for appellee.

Spaeth, Brosky and Johnson, JJ. Brosky, J., files a concurring opinion.

Author: Johnson

[ 326 Pa. Super. Page 392]

This is a direct appeal by the Commonwealth from the trial court's oral order dated September 7, 1982 and written order and opinion filed September 24, 1982, both of which quashed twenty-seven criminal counts instituted against appellee Gemelli. The Commonwealth filed notices of appeal from both the oral and written orders, which appeals were subsequently consolidated.

Finding that the trial court improperly quashed the twenty-seven counts, we vacate the trial court's order filed September 24, 1982 and remand for further proceedings.

The procedural history discloses that on January 12, 1982 the Erie County Investigating Grand Jury returned a presentment against appellee, a former Erie City Police Chief, recommending that criminal charges be filed in connection with appellee's alleged improper removal of firearms from the Erie City Police Department Evidence Room. Pursuant to this presentment, criminal complaints were filed on January 19, 1982 consisting of twenty-eight counts of theft by unlawful taking,*fn1 one count of criminal conspiracy,*fn2 two counts of intimidating witnesses or victims*fn3 and one count of obstructing the administration of law or other governmental function.*fn4

Following a preliminary hearing in March of 1982, appellee was held for court on all but three of the theft counts. On June 10, 1982, appellee filed an omnibus pretrial motion containing eleven separate grounds for relief. The Commonwealth filed an answer to the motion and a hearing was

[ 326 Pa. Super. Page 393]

    conducted on August 2, 1982. Thereafter, both parties filed briefs concerning additional issues on August 30, 1982.

On September 3, 1982, the trial court filed its initial opinion and order on the omnibus motion, quashing the two charges of intimidating witnesses or victims, quashing thirteen of the twenty-five theft charges on the basis of the statute of limitations, and denying the remainder of appellee's omnibus motion. The Commonwealth then petitioned for reconsideration and a hearing was held on September 7, 1982. At the close of testimony, the trial court reinstated the thirteen theft charges it had previously quashed on the basis of the statute of limitations and proceeded to quash all remaining counts of the information on other grounds.

Following the filing of its first notice of appeal and the trial court's filing of its September 24 written opinion and order, the Commonwealth again petitioned for reconsideration. Prior to the trial court acting on this petition, the Commonwealth filed its second notice of appeal. No action was taken thereafter by the trial court on the reconsideration petition.

The factual history reveals that appellee was Police Chief from 1972 until March of 1980. The investigation into the disappearance of firearms from the Evidence Room began with the arrest of police officer William Perry in January of 1981 on an unrelated charge. During an interrogation of Perry, who was a federally licensed firearms dealer, he told detectives that while employed as a police officer, he had taken weapons from the Evidence Room both with and without appellee's approval, purchased weapons in the Evidence Room from appellee, registered weapons from the Evidence Room for friends of appellee and provided numerous weapons to appellee from the Evidence Room at appellee's request. Perry also identified various property tags as being documents kept by the Police Department with respect to the missing firearms. Certain tags bore notations such as "escheat" or "destroyed". Perry testified that these notations were made, inter alia, for those weapons allegedly stolen by appellee in order to explain their

[ 326 Pa. Super. Page 394]

    disappearance from the Evidence Room. Perry's firearms transaction records also revealed appellee's name.

Pursuant to information obtained from Perry, another firearms dealer, Gary Gerard, was questioned. Gerard eventually conceded that he had dealt in firearms with appellee. Gerard consented to a number of electronic interceptions between himself and appellee in March of 1981 and testified as to the substance of those conversations at the preliminary hearing. Transcripts of these conversations were also introduced at the preliminary hearing. These conversations revealed, inter alia, that appellee had requested Gerard to dispose of certain firearms given to him by appellee and to eliminate all references to appellee in Gerard's records of his firearms transactions. A statement was also introduced concerning conversations between appellee and one Victoria Ann Rieder in March of 1981, to whom appellee had allegedly sold a stolen handgun in November of 1978 and then requested that she disavow any knowledge of the fact that the handgun had been sold, as opposed to given as a gift, to Rieder.

Preliminarily, we note that an appeal from these orders by the Commonwealth is proper at this time. Where a trial court's order, if unreversed, would result in the termination of prosecution, an appeal by the Commonwealth is proper. Commonwealth v. Kazior, 269 Pa. Super. 518, 410 A.2d 822 (1979).

The Commonwealth presents fourteen issues on this appeal, which we summarize as follows:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY RAISING, SUA SPONTE, THE QUESTION OF WHETHER APPELLEE SHOULD HAVE BEEN CHARGED WITH VIOLATING THE ESCHEAT LAW INSTEAD OF WITH THEFT BY UNLAWFUL TAKING, AND THEREAFTER QUASHING THE ENTIRE CRIMINAL INFORMATION IN LARGE PART UPON THIS GROUND?

[ 326 Pa. Super. Page 395]

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN QUASHING THE ENTIRE CRIMINAL INFORMATION ON THE BASIS THAT THE COMMONWEALTH HAD ERRED IN FILING CHARGES OF THEFT BY UNLAWFUL TAKING INSTEAD OF ESCHEAT LAW VIOLATIONS?

III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE ESCHEAT LAWS APPLIED TO ALL TWENTY-FIVE COUNTS OF THE INFORMATION CHARGING THEFT OF FIREARMS?

IV. WHETHER THE TRIAL COURT ERRED IN QUASHING THE CRIMINAL INFORMATION AFTER HAVING PREVIOUSLY RULED THAT THE FACTS OF RECORD DID NOT ALLOW A DETERMINATION TO BE MADE AS TO WHETHER APPELLEE SHOULD HAVE BEEN CHARGED WITH AN ESCHEAT VIOLATION INSTEAD OF WITH THEFT?

V. WHETHER THE CLAIM THAT APPELLEE WAS CHARGED IMPROPERLY WITH THEFT BY UNLAWFUL TAKING INSTEAD OF WITH ESCHEAT LAW VIOLATIONS WAS WAIVED BY TRIAL COUNSEL WHERE HE FAILED TO RAISE IT IN A PRE-TRIAL MOTION?

VI. WHETHER THE TRIAL COURT ERRED IN QUASHING COUNT TWENTY-FIVE OF THE INFORMATION CHARGING INTIMIDATION OF WITNESS OR VICTIM-VICTORIA ANN RIEDER?

VII. WHETHER THE TRIAL COURT ERRED IN QUASHING COUNT TWENTY-SIX OF THE INFORMATION CHARGING INTIMIDATION OF ...


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