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Commonwealth v. Selenski

May 26, 2010


Appeal from the order of Superior Court at No. 365 MDA 2006 dated 02-06-2007, reconsideration denied 04-18-2007, reversing the order of Luzerne County Court of Common Pleas, Criminal Division, at No. 3967 of 2003 dated 02-15-2006.

The opinion of the court was delivered by: Mr. Justice Eakin


ARGUED: May 13, 2008


Appellant was incarcerated while awaiting trial for the homicides of several individuals found buried in his backyard. He escaped from prison October 11, 2003, but turned himself in two days later. That day, the Commonwealth filed a criminal complaint charging appellant with escape and weapons or implements for escape.*fn1 On October 17, 2003, the Commonwealth filed a petition pursuant to Pa.R.Crim.P. 130(B)(1)(b)(i),*fn2 requesting all proceedings on both criminal complaints be joined before the same magisterial district justice. The trial court granted the petition. On January 16, 2004, the trial court entered a trial management order including both Docket No. 3966 of 2003, the homicide charges, and Docket No. 3967 of 2003, the escape charges.

Arraignment on all charges occurred February 9, 2004; appellant pled not guilty. Appellant filed an omnibus pre-trial motion relative to the homicide charges, seeking to suppress his admission that police would discover bodies buried in his backyard. The trial court granted the motion, finding a violation of Miranda v. Arizona, 384 U.S. 436 (1966). The Commonwealth appealed this decision, but the Superior Court affirmed, Commonwealth v. Selenski, No. 1171 MDA 2004, unpublished memorandum (Pa. Super. filed March 28, 2005), and this Court denied allocatur. Commonwealth v. Selenski, 891 A.2d 732 (Pa. 2005) (table).

Thereafter, on January 26, 2006, appellant filed a motion to dismiss the escape charges pursuant to Pa.R.Crim.P. 600,*fn3 because trial on those charges had not occurred within 365 days. The Commonwealth averred the escape case was stayed by its appeal of the suppression orders. See Commonwealth's Response to the Defendant's Motion to Dismiss Escape Charge Pursuant to Rule 600, at 2 ¶¶ 19, 37, 55 ("The uncontroverted evidence of the appeal record required that the Commonwealth not proceed on the escape charge as they were listed on the appellate court's docket and therefore stayed.").

Appellant argued that because the Commonwealth did not follow the procedure set forth in Pa.R.Crim.P. 582(B),*fn4 the homicide and escape charges had not been properly consolidated. Therefore, he contended, appeal of the ruling on the homicide charges did not stay the escape charges. The Commonwealth asserted the requisite notice of joinder was given to appellant by its Rule 130 petition to transfer; consolidation of the homicide and escape charges before one district justice had occurred, and the trial court management order listed both docket numbers. The Commonwealth alleged it had 120 days to bring the escape charges to trial under Pa.R.Crim.P. 600(D)(2)*fn5 after the cases were remanded, and trial had been scheduled for February 21, 2006, within the 120 days. Further, the Commonwealth claimed appellant waived the issue by failing to raise it in his omnibus pre-trial motion.

The trial court granted appellant's motion to dismiss the escape charges, finding consolidation of the homicide and escape charges was not in conformity with Rule 582. Finding the record lacking in this regard, and expressly rejecting the Commonwealth's argument that a de facto consolidation had occurred, the trial court concluded it must dismiss the escape charges under Rule 600. Appellant was acquitted of the homicide charges following the February 21, 2006 trial. The Commonwealth appealed dismissal of the escape charges.

The Superior Court reversed the trial court's order, and remanded for reinstatement of the escape charges. Commonwealth v. Selenski, 919 A.2d 229, 234 (Pa. Super. 2007). The Superior Court held the trial court erred in reaching its conclusion by focusing on the Commonwealth's failure to follow Rule 582's joinder requirements, rather than determining whether the Commonwealth exercised "due diligence" by making a reasonable effort to prosecute appellant in a timely fashion under Rule 600(G). Id., at 232-33.

The Superior Court acknowledged the Commonwealth's joinder motion did not comply with Rule 582, but it determined joinder of the homicide and escape charges would have been permitted. The court reasoned evidence of the escape would have been admissible in the homicide trial to show appellant's consciousness of guilt, while evidence of the homicides would have been admissible in the escape trial to show appellant's motive for escaping, and there would have been no danger of the jury confusing these separate offenses. The Superior Court next determined the Rule 130(B)(1)(b)(i) transfer petition gave appellant and the trial court sufficient notice of the Commonwealth's intention to try the homicide and escape charges together. This was evidenced by the January 16, 2004 trial management order, which listed the docket numbers in both cases, and scheduled a single trial.

Thus, the Superior Court concluded the trial court misconstrued Rule 600 by disregarding the Commonwealth's due diligence; it found that, to the extent consolidation was necessary to suspend Rule 600's run date, it was achieved by the Commonwealth's transfer motion, then ratified by the trial court in its management order. Accordingly, the Superior Court held no violation of Rule 600 occurred.

We granted allowance of appeal to:

(1) Discuss whether the Superior Court was correct in concluding that "the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the ...

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