Appeal from the Order Entered February 14, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006707-2011,
BEFORE: STEVENS, P.J., LAZARUS, J., and COLVILLE, J. [*]
The Commonwealth appeals from the orders of the Honorable Paula Patrick denying its petitions to vacate nolle prosequis filed in these matters. After careful review, we reverse and remand to the lower court for further proceedings.
On May 25, 2011, two police officers responded to a radio call regarding an armed man inside an apartment at 5534 North 5th Street in Philadelphia. The officers entered an open door to the apartment and heard a noise in the back of the unit. After exiting a rear door that led to the top of the building, they saw Goldman and Leonard running on the rooftop. Goldman jumped onto the street and was eventually stopped by other officers. Leonard was handcuffed on the rooftop, where the officers found a black bag containing two handguns and ammunition. Unable to post their respective bails, both Goldman and Leonard were incarcerated.
On June 9, 2011, Goldman was charged with violating the Uniform Firearms Act ("VUFA"), recklessly endangering another person, conspiracy, and resisting arrest. The same day, Leonard was charged with VUFA and conspiracy. Both were arraigned on June 30, 2011. On August 10, 2011, the Commonwealth requested a continuance to consolidate the defendants' cases, which the court granted.
On August 31, 2011, the Commonwealth and Goldman's counsel, Daniel-Paul Alva, Esquire, filed a joint request for a continuance. The court granted the continuance and scheduled trial for October 6, 2011. On October 6, 2011, counsel for Leonard requested another continuance for the next trial listing. Because the Commonwealth declined to sever Goldman's case, the court rescheduled trial for December 6, 2011.
On November 29, 2011, Attorney Alva requested a one-day continuance, as he would be unavailable between 11:00 a.m. and 2:00 p.m. on December 6, 2011. Judge Patrick did not order a continuance until December 5, 2011, when Attorney Alva appeared before the court again to confirm that the Commonwealth would be ready to proceed on December 7, 2011. The List Attorney in the courtroom confirmed that rescheduling the case would not prejudice the Commonwealth. Accordingly, trial was set for December 7, 2011.
On December 7, 2011, the Commonwealth was not prepared to proceed because the police witnesses had not been subpoenaed. Counsel for the Commonwealth informed the court that he had relied on a police-court liaison to subpoena the officers overnight, but there was a "communication breakdown" and the police officers did not receive notice. N.T. Motion Hearing, 12/6/2011, at 3-5. When the Commonwealth requested a continuance, Judge Patrick denied the request and presented the Commonwealth with a choice: request nolle prosequis or have the cases dismissed. The Commonwealth filed nolle prosequis in both cases, which were granted by Judge Patrick. Defendants, who at this point had been incarcerated for 196 days, were ordered to be discharged from custody.
On December 16, 2011, the Commonwealth filed motions to vacate the nolle prosequis, assuring the court that the prosecution had spoken to the police liaison, and asked the court to set the trial for the earliest possible date. On January 3, 2012, Judge Patrick heard argument and denied the motions to vacate the nolle prosequis. The orders were entered on the respective dockets on February 14, 2012. The Commonwealth filed timely notices of appeal and concurrently filed Pa.R.A.P. 1925(b) statements on March 5, 2012. On September 28, 2012, Judge Patrick filed her Rule 1925(a) opinions.
On appeal, the Commonwealth raises the following issue for our review:
Did the lower court abuse its discretion in denying the Commonwealth's motion[s] to vacate...nolle prosequi[s], terminating [these] prosecutions "with prejudice" because the Commonwealth was unsuccessful in its efforts to subpoena necessary witnesses following a defense continuance?
Brief of Appellant, at 4.
"A nolle prosequi is a voluntary withdrawal by the prosecuting attorney of present proceedings on a particular bill of indictment." Commonwealth v. Whitaker, 359 A.2d 174, 177 (Pa. 1976). Pennsylvania Rule of Criminal Procedure 585 ...