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COMMONWEALTH PENNSYLVANIA v. MARK JOSEPH FERRARI (07/01/88)

filed: July 1, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
MARK JOSEPH FERRARI, SR., APPELLANT



Appeal from the Judgment of Sentence entered March 3, 1987 in the Court of Common Pleas of Bucks County at Nos. 698 and 699 of 1986.

COUNSEL

Ronald H. Elgart, Levittown, for appellant.

Shawn Markey, Assistant District Attorney, Doylestown, for Com., appellee.

Beck, Kelly and Popovich, JJ. Beck, J., concurs in the result.

Author: Kelly

[ 376 Pa. Super. Page 309]

Appellant, Mark Joseph Ferrari, appeals from judgment of sentence imposed following his conviction of various

[ 376 Pa. Super. Page 310]

    offenses relating to his telephonic harassment and physical assault of his estranged wife. On appeal, appellant contends that he was improperly denied a preliminary hearing as the result of the trial court's misapplication of Pa.R.Crim.P. 231(a), illegally seized evidence was improperly admitted under the plain view exception, and the evidence was insufficient to sustain his conviction for carrying a firearm without a license. We affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On October 25, 1985, appellant's wife removed herself and her one year old child from the marital home in Bellmar, New Jersey and moved to her parent's home in Warminster, Pennsylvania. The marital separation was not amicable.

Between October 25, 1985 and November 11, 1985, appellant made twelve or more calls to his wife at her parent's home; approximately one half of the calls involved threats of violence. On November 11, 1985, appellant made twelve more calls. Again, the majority contained threats of violence directed at his estranged wife and her family. These incidents were reported to the police by appellant's wife on October 29, 1985 and November 11, 1985.

On November 19, 1985, appellant drove to Warminster in his aunt's car, parked at the bottom of the street where his wife's parents lived and later drove by the house. He was recognized by his wife despite the fact that he was wearing a distinctive yellow clown's wig in an apparent attempt to disguise his identity.*fn1

[ 376 Pa. Super. Page 311]

On November 20, 1985, at 8:40 A.M., appellant kicked open the locked front door of his wife's parent's home in Warminster. While appellant's wife frantically called the police, appellant struggled with his sister-in-law for control of his one year old son. Moments later, appellant's wife hung-up the phone and entered the fray. Appellant's sister-in-law broke free and fled with the child to the relative safety of the second floor of the house.

Appellant's wrath was then focussed upon his estranged wife. First, he picked her up and threw her into a door, knocking the door off its tracks. As she attempted to escape from him, he grabbed her by the throat and told her he was going to kill her. Somehow, she managed to escape his grasp and flee out the front door. She ran, with appellant following close behind, to a neighbor's house. She rushed in an unlocked door, locked the door, and yelled for her neighbor to call the police. Appellant briefly pounded on the door demanding admission, but then fled upon hearing the sirens of the approaching police. His attempt to flee was unsuccessful.

Shortly after appellant's arrest, a car matching the description given of the car involved in the drive-by incident on November 19, 1985, was discovered in a nearby post-office parking lot. Visual observation through the car's windows revealed that part of a yellow clown's wig was sticking out from under the driver's seat. Based upon the current incident and information received from a fellow police officer concerning a pending warrant and the substance of the appellant's wife's prior police reports, the investigating officer concluded that the wig might be evidence of a crime and so he proceeded to open the car door to get a better view of the wig. Without moving the wig, the officer observed a .38 caliber revolver which was with the wig under the driver's seat. The gun and the wig were later seized when the detectives assigned to the case impounded the car and inventoried its contents.

[ 376 Pa. Super. Page 312]

Subsequently, appellant acknowledged that he was the driver of the car searched. Appellant claimed that the New Jersey police had returned his "off-duty weapon" to him on November 19, 1985, that he had placed it in his aunt's car, but that he had forgotten the gun was in the car when he drove to Pennsylvania the next day. (Appellant's Brief at 10). It is undisputed that appellant was suspended from the New Jersey State Police at the time of these incidents and that he had no license to carry a firearm in Pennsylvania.

Appellant was charged on November 20, 1985, with burglary, criminal trespass, simple assault, harassment by communication and related offenses. For reasons not apparent from the record certified to this Court, the original charges were dismissed on December 30, 1985. The charges were refiled, however, on January 2, 1986, and a new arrest warrant was issued.

Appellant had by that time returned to his home in New Jersey. Appellant's pre-trial motion to quash the informations filed against him asserted the following additional facts which are uncontested by the Commonwealth. The new arrest warrant was orally communicated to the New Jersey police who then arrested appellant. Appellant was brought before a New Jersey magistrate and released on five hundred dollars bail. The Pennsylvania warrant was then transmitted to New Jersey. Upon review of the warrant, the New Jersey prosecutor concluded that the warrant could not be enforced in New Jersey. The warrant was returned undelivered.

The record discloses that when appellant failed to return to Pennsylvania for the preliminary hearing scheduled for February 13, 1986, he was declared a fugitive from justice. On March 4, 1986, the Commonwealth was granted leave to file an information against appellant pursuant to Pa.R.Crim.P. 231(a). After the information was filed, arraignment was set for March 14, 1986. Appellant again failed to appear and a bench warrant was issued for his arrest.

[ 376 Pa. Super. Page 313]

On March 17, 1986, the Commonwealth initiated proceedings under the Uniform Criminal Extradition Act, 42 Pa.C.S.A. §§ 9121 et seq., to extradite appellant. A requisition request was filed with our Governor pursuant to 42 Pa.C.S.A. § 9144, and approved in accordance with 42 Pa.C.S.A. § 9143. Our Governor's formal requisition was then transmitted to the Governor of New Jersey. Rather than continue to resist extradition via habeas corpus proceedings in New Jersey,*fn2 appellant elected to return to Pennsylvania. See N.J.S.A. § 2A:160-30 (Waiver and Voluntary Return).

Upon return, appellant filed motions to quash the informations against him and suppress certain evidence. Those motions were denied. Appellant was then tried in a bench trial and convicted of felonious criminal trespass, carrying a firearm without a license, simple assault, and harassment by communication. At sentencing, appellant testified that his divorce was final and custody matters had been resolved. He concluded his statement to the sentencing court as follows:

I'm embarrassed for what happened. I ruined the rest of my life for the acts of one day. I don't want to go to jail.

Appellant was sentenced to twenty-three months probation. This timely appeal follows.

I.

Appellant first contends that the trial court erred in failing to quash the informations filed against him. He argues that "good cause" under Pa.R.Crim.P. 231(a) was not established so as to justify proceeding without a preliminary hearing. Appellant argues further that the denial of a preliminary hearing prejudiced him by denying him the discovery benefits incident to preliminary hearings. Appellant concludes that because the informations against him should have been quashed, we must reverse his convictions.

The Commonwealth responds that "good cause" existed to permit the filing of informations against appellant pursuant

[ 376 Pa. Super. Page 314]

    to Pa.R.Crim.P. 231(a). The Commonwealth argues that good cause existed in that appellant was a fugitive and that an information against appellant was necessary to expedite the extradition process. The Commonwealth argues alternatively that even if appellant was improperly denied a preliminary hearing he was not prejudiced by the denial.

The trial court expressed reservations about treating a defendant who is actively fighting extradition from a sister state as a "fugitive," but nonetheless concluded that appellant's fugitive status was sufficient "good cause" to permit the Commonwealth to proceed under Pa.R.Crim.P. 231(a). The trial court opined that forcing appellant to choose between enjoying the discovery benefits of a preliminary hearing and fighting extradition did not offend due process, as no prejudice was shown to have arisen from the denial of a preliminary hearing.

We find that appellant was improperly denied a preliminary hearing in this case. However, we also find that appellant suffered no prejudice as the result of that error. Therefore, we find no basis to quash the information or grant other relief. Our reasoning follows.

A.

[ 376 Pa. Super. Page 315]

Despite the trial court's understandable misgivings, appellant was unquestionably a "fugitive from justice" as that phrase is used in extradition law. Undeniably, the phrase ordinarily calls to mind an image of one who, having committed a crime and anticipating detection and arrest, flees from the jurisdiction to escape punishment. See Webster's Ninth New Collegiate Dictionary 496 (1983); Black's Law Dictionary 604 (5th ed. 1979); 1 Bouvier's Law Dictionary 1321 (Rawle rev. 1914). Nonetheless, it is well-settled that a person is a "fugitive from justice" if the person charged with an offense was present in the charging state when the offense was committed and thereafter leaves the charging state, regardless of the reasons or motives for the exodus. See Commonwealth ex rel. Smalley Page 315} v. Aytch, 247 Pa. Super. 23, 27-28, 371 A.2d 1018, 1020-21 (1977) (collecting cases); see also Murphy, Revising Domestic Extradition Law, 131 U.Penn.L.R. 1063, 1111-12 (1983).

Participation of a fugitive in the extradition process by appearing for proceedings in the state from which extradition is sought does not alter the fugitive's status as a fugitive. The purpose of the procedural safeguards of the Uniform Criminal Extradition Act is not to legitimize the resistance of fugitives to lawful extradition, but to prevent wrongful detention and rendition to a demanding state of persons mistakenly believed to be subject to extradition. The fugitive has no "right" to fight extradition; rather, he benefits indirectly from the safeguards afforded to ensure the liberty of non-fugitives. Only return to the demanding state to answer the charges pending can alter an actual fugitive's status as a fugitive. Thus, appellant was in fact a fugitive when leave was granted to the Commonwealth to file an information ...


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