from the Order December 6, 2016 In the Court of Common Pleas
of Philadelphia County Criminal Division at No(s):
BEFORE: PANELLA, P.J., BENDER, P.J.E., GANTMAN, P.J.E.,
LAZARUS, J., OLSON, J., KUNSELMAN, J., NICHOLS, J., MURRAY,
J., and McLAUGHLIN, J.
Commonwealth appeals from the order dismissing its case
against Oronda Ligon on the day of trial. The Commonwealth
argues the trial court abused its discretion when it
dismissed the case against Ligon because, although the
complaining witnesses were not at the courthouse, the
Commonwealth had informed the court that they were on their
way and it was ready to proceed with trial. We reverse and
arrested Ligon in March 2012 and charged him with a large
number of crimes, including charges of robbery, burglary, and
aggravated assault, as well as violations of the Uniform
Firearms Act. The charges stemmed from the September
2011 robbery and assault of Carl Brady and his grandmother,
five continuances of the preliminary hearing, Ligon was held
for trial. The court then granted copious continuances of the
trial; Ligon requested most of the continuances. He was
subject to unrelated charges in federal court and told the
Commonwealth that he wanted to resolve those charges before
pleading guilty in this matter. Ligon ultimately elected to
go to trial in this case and, after additional continuances,
the case was reassigned to a new trial judge. The new judge
granted two more continuances, one due to a court conflict
and one because the prosecutor had another trial.
trial in this case finally began on Monday, December 5, 2016,
and on that day, the parties picked a jury. The following
morning, before the jury came into the courtroom, the
assistant district attorney ("ADA") told the trial
court that the complaining witnesses had not arrived. N.T.,
12/6/16, at 3. The ADA stated that, although she had arranged
a ride for the complaining witnesses, when the ride arrived,
they did not answer the door. Id. at 3, 12. The ADA
said she had been in "constant contact" with them,
having spoken with both the day before trial and having met
with one of them on the Friday preceding trial. Id.
3-4. The ADA asked for "a little bit more time" for
the witnesses to arrive. Id. at 3. The court said it
could "probably give [the Commonwealth] till 11."
Id. at 4.
the court reconvened at 11:00 a.m., a second ADA explained
that the probation officer of complaining witness Carl Brady
was attempting to contact him, and the Commonwealth had
arranged "for transportation to go to his house, since
he is in a wheelchair to get him into that vehicle and come
down to court." Id. at 8. The ADA stated she
"should have confirmation that all of that is happening
in about 20 to 30 minutes." Id. The court said
it would recess the proceedings until 11:45 a.m. Id.
Court reconvened at 12:00 p.m., and the first ADA said the
witnesses were "on their way, " said she was ready
to proceed with trial, and asked if she could begin with her
opening statement. Id. at 17. The trial court
replied that the witnesses were supposed to be there at 9:30
a.m. The ADA again advised the court that the witnesses were
on their way. She said she was ready to begin with her
opening statement and could put on another witness, by the
end of which she was "absolutely certain" the
complaining witnesses would arrive. Id. at 17-18.
The trial court declined to allow the prosecution to begin.
It instead dismissed the charges, stating, "Okay. Well,
the case is discharged." Id. at 18.
Commonwealth filed this appeal. In its Pa.R.A.P. 1925(a) opinion,
the trial court stated that it dismissed the case because, in
the absence of the complaining witnesses, the prosecution
would be unable to make out a prima facie case.
Trial Court Opinion, filed July 19, 2017, at 3. The court
also opined that the order from which the Commonwealth had
appealed was not a final order, because the dismissal was
without prejudice and the Commonwealth could refile the
charges. Id. at 2. The court stated:
In this case, this court dismissed the criminal complaint
against [Ligon] in light of the Commonwealth's failure to
make a prima facie case due to the absence of the
complaining witnesses on the date set for trial, nearly five
years after the complaint was filed. Finally on the date of
trial, a jury was selected and waited patiently on the
following day for hours before the case was dismissed. This
court did not dismiss the complaint with prejudice. At the
trial readiness conference on December 5, 2016, the
Commonwealth asserted that it was ready to proceed to trial.
On December 6th at trial, the Commonwealth failed
to have the complaining witnesses appear in court for
necessary testimony. Thereupon, this court dismissed the
complaint against [Ligon]. As in [Commonwealth v.
Jones, 676 A.2d 251 (Pa.Super. 1996)] and
[Commonwealth v. Waller, 682 A.2d 1292 (Pa.Super.
1996) (en banc)], this court's dismissal was
based upon the Commonwealth's failure to present
necessary witnesses to make a prima facie case. In
neither the docket nor the transcripts did this court ever
represent the dismissal to be with prejudice. This court also
notes that the dismissal of the complaint occurred 1, 782
days after the complaints had originally been filed.
Therefore, the Commonwealth's appeal is precluded from
appellate review and its sole recourse is the refiling of
1925(a) Op. at 3-4 (italics added, citations to record
Commonwealth's brief raises the following issue:
Did the trial court abuse its discretion in dismissing the
case after the statute of limitations had expired because the
victims – an elderly woman and a paraplegic man –
were unexpectedly late for court where the Commonwealth
affirmed that, despite the victim's absence, it was ready