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COMMONWEALTH PENNSYLVANIA v. JEANETTE BOBI BOND (01/31/86)

filed: January 31, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JEANETTE BOBI BOND, APPELLANT



Appeal From Judgment of Sentence, Court of Common Pleas, Criminal Division, Bucks County No. 1282 of 1981.

COUNSEL

Norman A. Oshtry, Philadelphia, for appellant.

Stephen B. Harris, Assistant District Attorney, Doylestown, for Com., appellee.

Spaeth, President Judge, and Cavanaugh, Brosky, Rowley, Wieand, McEwen, Del Sole, Beck and Tamilia, JJ. Del Sole and McEwen, JJ., join in this opinion. Spaeth, President Judge, and Brosky, J., file concurring opinions. Wieand, J., files concurring opinion, in which Rowley, Beck and Tamilia, JJ., join.

Author: Cavanaugh

[ 350 Pa. Super. Page 344]

Jeanette Bobi Bond was convicted of violating the Pennsylvania obscenity law, 18 Pa.C.S.A. § 5903. She now appeals to this court raising the following questions:

1. Did the trial of the appellant commence more than 180 days from the date the Complaint was filed against the appellant in violation of Pennsylvania Rule of Criminal Procedure No. 1100?

2. Is 18 Pa.C.S.A. § 5903, which prohibits the sale of obscene material unconstitutionally vague and overbroad in that it defines obscene material to include protected speech?

3. Was the Complaint issued without probable cause and without specificity in its charge sufficient to afford appellant proper notice of the charge and an opportunity to prepare a defense, all in violation of appellant's constitutional rights?

4. Can the material, in the first instance, as a matter of law be classified as hardcore sexual conduct and, therefore, be deemed legally obscene?

5. Did the Trial Court err when within the context of the definition of obscenity, the Court informed the Jury that material may be deemed to be "patently offensive" and not constitute an affront to contemporary community standards?

For the reasons which follow, we affirm the judgment of sentence.

Rule 1100

The Complaint against appellant was filed on February 11, 1981 charging her with a violation of the Pennsylvania obscenity law, 18 Pa.C.S.A. § 5903 (Purdon 1983). Therefore, pursuant to Rule 1100, appellant was required to be brought to trial before August 11, 1981. On July 22, 1981 (day 161), appellant, along with eight other defendants, appeared before the trial court for the purpose of litigating pre-trial motions. Included among those issues raised was appellant's Motion to discharge the appellant on the

[ 350 Pa. Super. Page 345]

    grounds, inter alia, that the obscenity statute is unconstitutional. The motion stated six separate claims of unconstitutionality. The trial court reserved judgment on this motion pending the filing of briefs by the parties and the appellant agreed to waive the computation of time under Rule 1100 for thirty-seven days (until August 29, 1981) so that briefs could be filed. The request for time to file briefs was made by appellant's counsel. Appellant's new run date was accordingly extended until September 17.

On September 30, 1981, the Commonwealth filed a petition to extend the run date pursuant to Rule 1100(c). A hearing on the petition was scheduled for October 30.

On October 16, the trial court entered its order denying appellant's Motion to Dismiss. Subsequently on November 18, upon appellant's motion, the trial court certified for interlocutory appellate review the question of the constitutionality of the obscenity statute. Again appellant waived Rule 1100 for the period from November 9 to December 7, 1981.

On February 10, 1982, the Superior Court denied appellant's petition for interlocutory appeal. Trial was set for April 19, 1982, but was continued at the request of appellant's attorney.*fn1 The case was ultimately called for trial on June 7, 1982.

Pennsylvania Rule of Criminal Procedure 1100 directs that trial "shall commence no later than one hundred eighty (180) days from the day on which the complaint is filed." In denying appellant's Rule 1100 challenge, the trial court opined that trial commenced on July 22, 1981, the date on which appellant's pre-trial motions were litigated. Because this date fell within the 180-day period, the court found no violation of appellant's right to a speedy trial. We agree with that conclusion.

[ 350 Pa. Super. Page 346]

Rule 1100 expressly provides: "For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea a guilty or nolo contendere." Pa.R.Crim.P. 1100(b). The comments to the Rule, however, explain further:

It is not intended that preliminary calendar calls should constitute commencement of a trial. For the purpose of this rule, a trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial.

Pa.R.Crim.P. 1100 comments, quoted with approval in Jones v. Commonwealth, 495 Pa. 490, 495, 434 A.2d 1197, 1199 (1981). In an often relied upon Concurring Opinion, then Chief Justice Eagan embellished on this comment:

The words "some other such" immediately preceding "first step in the trial" clearly indicate that the events specifically referred to in the comment are to be considered first steps in a trial for purposes of Rule 1100, see Commonwealth v. Boyle, 470 Pa. 343, 353, 368 A.2d 661, 666 (1977), even though not all of these events are, strictly speaking, directly involved with the determination of guilt or innocence. For example, if a case were called to trial and, after determining the parties were present, the trial judge held a hearing on a suppression motion which had been reserved for the time of trial, presumably the trial would have commenced for purposes of Rule 1100. This leads to the conclusion that the principal concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than pro forma, event. Moreover, each of the events specifically referred to in the foregoing portion of the comment represents a degree of commitment of the court's time and resources such that the process of determining the defendant's guilt or innocence follows directly therefrom. Accordingly, the beginning of any stage which leads

[ 350 Pa. Super. Page 347]

    directly into the guilt-determining process is a "first step in the trial" for purposes of Rule 1100.

Commonwealth v. Lamonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) (Eagen, C.J. concurring). See also Commonwealth v. Williams, 250 Pa. Super. 221, 378 A.2d 906 (1977) (trial commences with a "substantial commitment of time and resources of the lower court toward a prompt determination of appellant's guilt or innocence").

In applying Rule 1100 under this interpretation, our courts on numerous occasions have considered whether a pretrial suppression hearing constitutes commencement of trial. For example, in Commonwealth v. Dozier, 258 Pa. Super. 367, 392 A.2d 837 (1978), the defendant claimed that his trial counsel was ineffective for failing to assert that Dozier's Rule 1100 rights had been violated. The criminal complaint had been filed against the defendant on December 28, 1974. Trial under Rule 1100 therefore had to commence by June 26, 1975. On March 12, 1975, Dozier appeared before the trial court for the purpose of entering a guilty plea. Following the colloquy, however, he decided not to plead guilty. The court then directed the parties to proceed on the defendant's oral motion to suppress evidence. The case was ultimately called to trial on July 21, 1975, 205 days after the filing of the complaint.

On appeal the Commonwealth argued that Rule 1100 was not violated because trial had "commenced" on March 12, the date of the defendant's suppression hearing. This court rejected that argument, ruling that "a hearing on a motion will mark the commencement of trial under Rule 1100 only if (1) the accused is adequately warned that the hearing has been reserved until the time of trial and (2) the hearing actually leads directly into the guilt-determining process." Id., 258 Pa. Superior Ct. at 371-72, 392 A.2d at 840. On the facts before it, the Dozier court observed that the suppression hearing had not been explicitly reserved to trial and that the hearing did not lead directly into the guilt-determining process, but rather preceded the selection

[ 350 Pa. Super. Page 348]

    of the jury by 101 days. Dozier, accordingly, was discharged.

Similarly, in Commonwealth v. Machi, 294 Pa. Super. 338, 439 A.2d 1230 (1982), the court was constrained to discharge the defendant because of the delay between the suppression hearing and the actual trial. The Machi court noted the philosophy that "a suppression hearing will be found to have lead directly into the guilt-determining process only if it triggered a substantial commitment of the court's time and resources to a determination of the defendant's guilt." Id., 294 Pa. Superior Ct. at 342, 439 A.2d at 1232 (citing Commonwealth v. Bethel, 261 Pa. Super. 231, 396 A.2d 372 (1978)). Accord Commonwealth v. Griffin, 257 Pa. Super. 153, 390 A.2d 758 (1978); Commonwealth v. Williams, 250 Pa. Super. 221, 378 A.2d 906 (1977).

Thus, when the Commonwealth has taken the position that the suppression hearing constituted the commencement of trial for Rule 1100 purposes, our courts have focused their inquiry on the temporal proximity of the hearing to the actual trial. Compare Commonwealth v. Machi, supra (185 days between hearing and trial); Commonwealth v. Taylor, 254 Pa. Super. 211, 385 A.2d 984 (1978) (173 days); Commonwealth v. Haddad, 256 Pa. Super. 176, 389 A.2d 658 (1978) (250 days); Commonwealth v. Griffin, 257 Pa. Super. 153, 390 A.2d 758 (1978) (62 days); Commonwealth v. Bethel, 261 Pa. Super. 231, 396 A.2d 372 (1978) (16 days) (all finding that the suppression hearing did not lead directly into the guilt-determining process) with Commonwealth v. Kluska, 484 Pa. 508, 399 A.2d 681 (1979), cert. denied, 444 U.S. 858, 100 S.Ct. 120, 62 L.Ed.2d 78 (1979). (one day between hearing and jury selection); Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980) (jury selection immediately after suppression hearing); Commonwealth v. Wharton, 250 Pa. Super. 25, 378 A.2d 434 (1977) (one day between hearing and jury selection); Commonwealth v. Fisher, 244 Pa. Super. 361, 368 A.2d 762 (1976) (trial began two days after completion of suppression hearing) (all concluding that trial commenced on date of

[ 350 Pa. Super. Page 349]

    suppression hearing).*fn2 Similarly, in Commonwealth v. Bell, 328 Pa. Super. 35, 476 A.2d 439 (1984), the court considered whether a pre-trial hearing on defendant's motion for change of venue constituted commencement of trial. Observing that the motion had been reserved for the time of trial and that the guilt-determining process, "with the jury being sworn and testimony taken," began only two days later, ...


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