Appeal from the Order entered in the Court of Common Pleas, Criminal Division, of Allegheny County, Criminal Nos. 8410604A and 8412545A.
Melanie S. Rothey, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
Rowley, Olszewski and Del Sole, JJ.
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Appellant, Geoffrey Adams, was charged with rape, involuntary deviate sexual intercourse, unlawful restraint, simple assault and corrupting the morals of a minor at Information
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No. 8410604A, and reckless endangerment of another person in a second Information at No. 8412545A. After the jury was empaneled at appellant's first trial, the charges were dismissed on appellant's motion. Upon reconsideration by the trial judge, the order of dismissal was rescinded and the charges were reinstated. Appellant's subsequent motions to reverse the order reinstating the charges and/or to dismiss the charges were denied and the case was relisted for trial. On appeal from the Order denying these motions, appellant contends that reprosecution on the charges would violate his constitutional right not to be placed twice in jeopardy.*fn1 Upon a careful review of the record herein, we find that the double jeopardy clause does not bar retrial of appellant and, accordingly, appellant's motions were properly denied.
At Information No. 8410604A, filed November 29, 1984, appellant was charged with rape, involuntary deviate sexual intercourse, unlawful restraint, simple assault and corrupting the morals of a minor. These charges arose from appellant's alleged sexual assault of a thirteen year-old girl on August 17, 1984. At Information No. 841254A, filed January 4, 1985, appellant was charged with recklessly endangering the life of a police officer. This charge resulted from appellant's crash through a police roadblock on August 17, 1984, to avoid being arrested on the other offenses. The informations were consolidated for trial, which commenced on March 19, 1985. On that date, a jury was empaneled and sworn and both the assistant district attorney (district attorney) and appellant's counsel delivered their opening statements. The trial judge then excused the jury, advising the parties and the jury that the trial would recommence promptly at 9:00 a.m. on the next day.
At 9:00 a.m. on March 20, 1985, the clerk called the roll of the jury. The trial judge then directed the district attorney
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to call her first witness. The district attorney replied that the Commonwealth was not prepared to proceed because the "witnesses [had] not appeared yet for the Commonwealth." (N.T., March 20, 1985 at 2.) The trial judge asked the district attorney if she had another witness to call, to which she responded: "No, Your Honor. I'm sorry, I don't." (N.T., March 20, 1985 at 2.) The trial judge then instructed the parties and the jury that he would delay the trial for ten minutes.
After approximately fifteen minutes had passed, defense counsel requested a side bar conference. At side bar, defense counsel made an oral "Motion to Dismiss for failure to prosecute." In response, the district attorney stated that the Commonwealth had every reason to believe that the witnesses would be present at 8:30 a.m., that attempts to call the witnesses at home had been unsuccessful, and that the Braddock Police had been sent to find the witnesses. At that point, the trial judge briefly recounted the morning's events for the record. After indicating that it was 9:25 a.m. and there were still no Commonwealth witnesses present, the trial judge granted the motion for dismissal at side bar.*fn2 Proceedings before the jury were resumed thereafter, and the jury was instructed as follows:
Members of the jury, with very great reluctance we have to tell you that we have granted a motion to dismiss the charges in this case because of the failure of the prosecution witnesses to appear . . . . But we do tell you that it is the responsibility of the lawyers in the case to see to it that the witnesses are here when the case is scheduled to proceed, and we can't run the court system on a basis of "We will hear the case whenever you find it convenient to get here." We have to have a time scheduled, just as you have to have one in running your home and people in business have to have a time schedule in running their businesses.
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Now, the charges in this case are serious, and it's with the greatest of regret that we have to dismiss the case on this basis, but we have no alternative, it seems to us, and we now excuse you from further attendance on this case with the thanks of the Court.
N.T., March 20, 1985, at 4-6. The following written Order was then entered on Information Numbers 8410604A and 8412545A:
And now, March 20, 1985, it appearing to the Court that the Commonwealth is unable to proceed, this case is hereby dismissed. Defendant remanded to custody of sheriff.
On March 21, 1985, the Commonwealth filed a Motion to Reconsider the Order of Court dated March 20, 1985. Following a brief in-chambers hearing on March 25, 1985, concerning the Commonwealth's ...