Submitted August 11, 2014
Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): MC-51-CR-0007273-2011. Before PATRICK, J.
Hugh J. Burns, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Joseph K. Kelly, Philadelphia, for appellee.
BEFORE: BOWES, SHOGAN, and OTT, JJ.
The Commonwealth appeals from the August 28, 2013 order affirming the dismissal of this action against Appellee Brian Feeney based upon the Commonwealth's violation of Pa.R.Crim.P. 1013. As the trial court disregarded directly applicable Supreme Court precedent, we reverse.
On February 19, 2011, Feeney was charged with driving under the influence of alcohol. At 7:00 p.m. on the day in question, Philadelphia Police Officer Dennis Johnson was in a marked cruiser stopped at the traffic light that controls the intersection of Harbison and Robbins Streets in Philadelphia. Officer Johnson observed Feeney travel through a steady red light and nearly cause an accident. He initiated a traffic stop. Feeney " had a strong odor of alcohol coming from his breath, bloodshot eyes, slurred speech." N.T. Hearing, 8/15/11, at 14. Feeney was asked to exit his vehicle and was unable to maintain his balance. Officer Johnson had to catch him to keep him from falling and placed him under arrest for DUI. Feeney's arraignment was conducted the next day.
Trial was originally scheduled for May 11, 2011, when the Commonwealth was prepared to proceed. Feeney asked for discovery consisting of a videotape of the incident, which did not exist. In June 2011, Feeney filed a motion to suppress, a hearing on that motion occurred on August 15, 2011, and it was denied.
Trial was scheduled for October 7, 2011, but Feeney " failed to appear. The defense attorney accepted service." N.T. Motion, 5/1/13, at 5. Trial was rescheduled for December 16, 2011. The Commonwealth could not proceed on that date because one of its police witnesses was unable to arrive in court on schedule due to a family emergency. The Commonwealth was ready to try the matter at the next two scheduled trial dates, February 15, 2012, and April 4, 2012, but Feeney asked that the matter be continued.
Trial was re-scheduled for May 25, 2012, when the Commonwealth witnesses were present, and it was prepared to prosecute Feeney. Feeney failed to appear because he did not want to miss work. Id. at 7-8. A bench warrant was issued for his arrest but was subsequently lifted. There were six subsequent trial listings; three were continued at the defense's request and the Commonwealth was not able to proceed on the other three dates due to the absence of one of its witnesses.
On May 1, 2013, Appellant filed a motion to dismiss under Rule 1013, which was granted by the Honorable Charles Hayden sitting in the Municipal Court of Philadelphia. At that time, the Commonwealth maintained that Feeney waived his right to litigate the Rule 1013 ...