Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Monroe County, Nos. 451, 452-1985. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Monroe County, Nos. 449 & 450 Criminal 1985.
John P. Lawler, Stroudsburg, for appellant in No. 2934.
George W. Westervelt, Jr., Stroudsburg, for appellant in No. 2939.
Jane Roach, Assistant District Attorney, Allentown, for Com., appellee.
Wieand, McEwen and Beck, JJ. Beck, J., concurs in the result.
James Riffert and Kathleen Wible were tried by jury and were found guilty on two counts of conspiracy to possess a controlled substance and two counts of conspiracy to possess a controlled substance with intent to deliver.*fn1 Following the denial of post-trial motions, Riffert was sentenced to serve two consecutive terms of imprisonment of four to eight years and ordered to pay a $5,000.00 fine; and Wible was sentenced to serve two concurrent terms of imprisonment of three to six years and ordered to pay a $1,000.00 fine. Both Riffert and Wible have appealed from their judgments of sentence, and those appeals have been consolidated for appellate review. We will consider seriatim the numerous issues raised by appellants Riffert*fn2 and Wible.*fn3
The convictions of Riffert, Wible and their co-defendants were the result of an extensive investigation by Pennsylvania State Police into drug trafficking in the Pocono Mountains area of northeastern Pennsylvania. The factual scenario underlying their convictions was summarized by the trial court as follows.
In late 1984, the Pennsylvania State Police received information from confidential informants that a criminal conspiracy involving a major drug ring dealing in large quantities of methamphetamine was in operation in the Pocono Mountains, Monroe County area. The police initially applied for and received search warrants of telephone records of various individuals, namely, Patty Moore, Margaret Carpenter, Kathleen Wible and Susan Kitchener. Finding similarities in numbers called, the police requested a pen register be ordered to record outgoing numbers dialed on these telephones. By Court
Orders dated February 15 and 27, 1985, the pen registers were placed into operation.
The Commonwealth used the information gathered from the pen register to apply to the Superior Court for a wiretap on co-defendant Wible's and Riffert's two telephones. The wiretap was issued and conducted in March of 1985. One hundred twenty-eight coded messages were intercepted and recorded.
From these phone conversations, the police surmised that Riffert and co-defendant Wible were in the process of consummating a sale of one pound of methamphetamine with co-defendant Inadi on March 15, 1985. Following up on their suspicions, Officers Stern and Schaeffer observed Wible and Inadi meet at the designated location, but did not witness the actual exchange.
A similar incident on March 23/24, 1985 led to Defendant's arrest. On this occasion, a purchase from Inadi was negotiated over the phone, however, Defendant Reeves was to pick up the methamphetamine. Several brief telephone conversations between Wible and Inadi and Wible and Reeves finally brought Inadi and Reeves together at the George Washington Motor Lodge. Observing the transaction, the police promptly arrested Reeves and Inadi. Wible and Riffert were arrested soon afterward.
Appellants argue initially that the Commonwealth violated Pa.R.Crim.P. 1100 by failing to bring them to trial within 180 days after the date on which criminal complaints had been filed against them. The specific basis for appellants' Rule 1100 claim is that the Commonwealth failed to file a timely petition to extend the time for trial. By the time such a petition was filed, appellants contend, the 180 day period under Rule 1100 had expired. This, appellants argue, requires that they be discharged. The trial court, however, found that time was excludable pursuant to Rule 1100(d)(3), and, that when such time was excluded, the Commonwealth's petition to extend the time for trial was timely.
Criminal complaints were filed against appellants on March 18, 1985. The Commonwealth did not file its petition to extend the time for trial until October 28, 1985, 224 days after the date on which the criminal complaints had been filed. On June 26, 1985, however, the trial court had issued an order mandating that the omnibus pre-trial motions of all defendants be filed no later than August 5, 1985. Riffert filed his omnibus pre-trial motion on August 12, 1985; Wible did not file her motion until February 5, 1986. Numerous discovery motions and additional pre-trial motions were also filed by the defendants. Because appellants and their co-defendants were to be tried together and in order that all proceedings could move ahead simultaneously, the trial court determined that the omnibus pre-trial motions of all defendants would be decided at the same time. Hearings were held and, on July 2, 1986, the trial court filed an opinion and accompanying order which denied the many suppression issues which had been raised in the omnibus pre-trial motions of appellants and their co-defendants. Trial commenced five days later on July 7, 1986.
During all periods of time relevant to this case, Rule 1100 mandated that a defendant be discharged unless all periods of delay beyond 180 days were accounted for either by an extension of time granted to the Commonwealth or by an exclusion of time pursuant to Rule 1100(d).*fn4 Commonwealth v. Colon, 317 Pa. Super. 412, 418, 464 A.2d 388, 391 (1983). See also: Commonwealth v. Williams, 299 Pa. Super. 226, 445 A.2d 537 (1982). In determining whether a petition to extend the time for trial has been filed timely, however, all periods of time which are properly excludable under Rule 1100(d) must be subtracted. Commonwealth v. Shelton, 469 Pa. 8, 15, 364 A.2d 694, 697 (1976). See also: Commonwealth v. Bomboy, 357 Pa. Super. 265, 515 A.2d 969 (1986); Commonwealth v. Casper, 327 Pa. Super. 362, 475 A.2d 840 (1984). Time is excluded from the computation of the 180 day period under Rule 1100 for delays which
are caused by the unavailability of a defendant. Commonwealth v. Armstead, 359 Pa. Super. 88, 91, 518 A.2d 579, 581 (1986); Commonwealth v. Colon, supra, 317 Pa. Super. at 425, 464 A.2d at 395. Also excluded, according to the decided cases, is the time intervening between a defendant's filing of pre-trial motions and the trial court's disposing of such motions. See: Commonwealth v. Mason, 358 Pa. Super. 562, 518 A.2d 282 (1986); Commonwealth v. Bond, 350 Pa. Super. 341, 504 A.2d 869 (1986) (en banc) (Spaeth, P.J. concurring); Id. (Wieand, J. concurring). See also: Commonwealth v. Fuchs, 372 Pa. Super. 499, 539 A.2d 1307 (1988); Commonwealth v. Wills, 370 Pa. Super. 173, 536 A.2d 351 (1987). The rationale for excluding such time has been explained as follows:
The critical point, as I see it, is that in instituting her constitutional challenge, appellant initiated foreseeable delay for which the Commonwealth was not responsible. The period extending from the date of appellant's motion to the date of the trial court's order denying the motion should be excluded from the 180-day period. To permit the period to run while the court deliberated on the motion would be to permit appellant to wield her right to a speedy trial in an unjust and uncontemplated manner.
Commonwealth v. Bond, supra, 350 Pa. Super. at 358, 504 A.2d at 878 (Spaeth, P.J. concurring). See also: Id., 350 Pa. Superior Ct. at 363, 504 A.2d at 881 (Wieand, J. concurring) ("appellant sought to delay the trial in order to obtain a ruling on the constitutional issue and thereby, in a practical sense, obtained a postponement or continuance of the trial").
In the instant case, the trial court correctly determined that the time period between August 12, 1985, the date on which appellant Riffert filed his omnibus pre-trial motion, and October 28, 1985, the date on which the Commonwealth filed its petition to extend the time for trial, was excludable in computing the 180 day period.*fn5 When this period of seventy-seven (77) days is subtracted from the computation
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of the 180 day period, it is apparent that the Commonwealth's petition to extend the time for trial was filed on the 147th day following the filing of the criminal complaint against Riffert. A motion thus filed was timely. Because Riffert's omnibus pre-trial motion had raised challenges to the Commonwealth's evidence against him, his trial could not commence until the motion was disposed of by the trial court. Riffert thus was unavailable to be tried while his omnibus motion was pending. Implicitly, he had obtained a postponement or continuance of his trial during such time.
The trial court had determined that Riffert and Wible, together with two co-defendants, were to be tried together in a consolidated trial. Therefore, the trial against Wible also could not commence until all pre-trial matters had been decided. Wible aggravated this delay by her own tardiness. Although the trial court had set August 5, 1985 as the deadline for filing omnibus pre-trial motions, Wible's pre-trial motion was not filed until February 5, 1986. Wible's tardy compliance with the trial court's order, therefore, contributed to the Commonwealth's inability to commence trial. In effect, Wible was also unavailable for trial between August 5, 1985, when her pre-trial motions should have been filed, and October 28, 1985, when the Commonwealth requested an extension of time within which to commence trial. When this period of eighty-four (84) days is excluded, the Commonwealth's petition was also filed timely with respect to the charges against Wible. We conclude, therefore, that Rule 1100 was not violated.
Riffert contends also that he is entitled to be discharged because his preliminary hearing was not held within ten days following his preliminary arraignment as required by Pa.R.Crim.P. 140(d). This issue, however, was not raised prior to or at the time of the preliminary hearing and, therefore, was waived. Pa.R.Crim.P. 150 provides that
[a] defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures ...