Commonwealth v. Smalis

OPINION

McDERMOTT, Justice.

In this appeal we are asked to decide whether appellant’s constitutional rights will be violated if her bench trial is resumed following an extended stay of the proceedings occasioned by the Commonwealth’s appeal from an order sustaining demurrers to certain, but not all, criminal charges.

Appellant, Despina Smalis, along with her husband, owned adjoining buildings located in the Oakland section of Pittsburgh. The premises housed the “Chances R” restaurant and lounge on the first floor and seven moderately-priced rental apartments on the second floor. On the morning of February 12, 1979, at approximately 6:30 A.M., a fire occurred that resulted in the death of two tenants, Judith Ann Ross and Dale Burton. Following a grand jury investigation into the nature of the fire, criminal informations were filed by the Allegheny County District Attorney’s Office charging appellant and her husband with criminal homicide,¹ reckless endangerment,² causing a catastrophe,³ failing to prevent a catastrophe,⁴ and with respect to appellant alone, securing the execution of documents by deception⁵ in connection with the failure to install two fire-resistant metal doors in the building.

The parties proceeded with a bench trial in the Court of Common Pleas of Allegheny County on November 12, 1980. At the close of the Commonwealth’s case-in-chief, appellant and her husband challenged the sufficiency of the evidence by way of a demurrer. The trial court sustained the demurrer to the evidence with respect to the charges of murder, voluntary manslaughter and causing a catastrophe. As was the practice at the time in this Commonwealth, the remaining misdemeanor charges were stayed by the trial court pending the outcome of the Commonwealth’s appeal to the order sustaining the demurrer. See Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1980).

The appeal to the Superior Court was taken by the Commonwealth on December 19, 1980. The Superior Court quashed the appeal on the ground that the sustaining of the demurrer was the functional equivalent of an acquittal and therefore a direct appeal by the Commonwealth was barred by the Double Jeopardy Clause of the Fifth Amendment of United States Constitution.⁶ Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984). On appeal to this Court, we reversed, finding the appeal not constitutionally offensive and remanded to the Superior Court with instructions to pass upon the merits of the demurrer ruling entered by the trial court. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985).⁷

At this point, appellant and her husband petitioned for a writ of certiorari to the United States Supreme Court. The Court accepted the case and thereafter held that the grant of a demurrer at the close of the prosecution’s case-in-chief constituted an acquittal under the Double Jeopardy Clause thus barring an appeal by the Commonwealth. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986).

In accordance with this mandate, this Court entered a per curiam order on July 29, 1986, vacating our previous order and reinstating the order of the Superior Court which quashed the Commonwealth’s appeal. Commonwealth v. Smalis, 511 Pa. 229, 512 A.2d 634 (1986).

The Commonwealth next sought resumption of trial on the remaining misdemeanor charges originally stayed by the trial court. On December 12, 1986, appellant and her husband filed a motion to dismiss the remaining charges on various constitutional grounds. This motion, following briefing and oral argument, was denied by the trial court on January 9, 1987. Because of the potential constitutional implication caused by the delay of the proceedings, the trial court certified the order denying the motion to dismiss the remaining charges to the Superior Court, pursuant to 42 Pa.C.S. § 702(b). The Superior Court, on appeal, affirmed the trial court’s order denying the motion to dismiss, and found the constitutional claims wanting in merit. The court remanded the matter to the trial court for further proceedings. Commonwealth v. Smalis, 375 Pa.Super. 601, 545 A.2d 284 (1988). Appellant’s husband sought no further review. Appellant, however, filed an application for reargument, which was denied on August 5, 1988. We then granted appellant’s petition for allowance of appeal to examine the constitutional impact, if any, of the delay in the resumption of trial on the outstanding misdemeanor charges.

Appellant attacks the resumption of her trial on three constitutional fronts. First, she equates the delay with that of a “mistrial” and therefore asserts that the resumption of trial on the outstanding misdemeanor charges would offend the Double Jeopardy Clause. Appellant argues that the substantial break in the continuity of the trial, in effect, removed jeopardy since the immediacy of the threat to her liberty was terminated with the stay. We disagree with this assertion.

The Double Jeopardy Clause has been recognized by the United States Supreme Court as having three separate and distinct objectives: the protection of the integrity of a final judgment, the prohibition against multiple prosecutions, even where no final determination of guilt has been made, and the proscription against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See also Commonwealth v. Zoller, 507 Pa. at 349-52, 490 A.2d at 396-98; Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984). Under the facts of this case, we are confronted with neither a final judgment, multiple prosecutions nor multiple punishments. Rather, with respect to the remaining misdemeanor charges, jeopardy does not come into play because the trial court denied appellant’s demurrer to these charges and found as a matter of law that the Commonwealth’s evidence was sufficient to establish appellant’s guilt beyond a reasonable doubt. See Commonwealth v. Mitchell, 460 Pa. 665, 334 A.2d 285 (1975); Commonwealth v. DePetro, 350 Pa. 567, 39 A.2d 838 (1944). Therefore, since these remaining charges survived the demurrer challenge and as of this date appellant has not been “acquitted” of these charges, we see no double jeopardy implication that would preclude further prosecution.

Appellant’s second argument pertains to an alleged violation of her rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution. The Sixth Amendment provides that an accused, “[i]n all criminal prosecutions ... shall enjoy the right ... to be confronted with the witnesses against him, [and] to have compulsory process for sustaining witnesses in his favor.” ⁸ The extent to which a criminal defendant can cross-examine the witnesses testifying against him is controlled by the confrontation clause. The purpose of the clause is to provide an accused with an effective means of challenging the evidence against him by testing the recollection and probing the conscience of an adverse witness. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Nothing in this record indicates that appellant’s rights under this specific clause have been violated. In the instant case, these proceedings were stayed after the Commonwealth presented all of its evidence. Appellant, prior to the stay order, did have full opportunity to confront and cross-examine all of the Commonwealth’s witness during the case-in-chief. Thus, this constitutional protection has not been violated by the delay in trial.

Finally, appellant maintains that the extended delay in the resumption of trial has deprived her of due process protection found in the Fifth and Fourteenth Amendments that guarantee her the right to a fair trial. This argument, although general in nature, requires us to utilize the speedy trial analysis as articulated by United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In determining whether the right has been violated, a court should weigh four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker, id. at 530, 92 S.Ct. at 2192. Because “the right to a speedy trial is a more vague concept than other procedural rights”, courts must “approach speedy trial cases on an ad hoc basis.” Barker, id. at 521, 530, 92 S.Ct. at 2187, 2192.

In applying this four-part balancing test to determine whether the delays infringed upon appellant’s right to a speedy trial, we proceed to analyze each of these factors as they pertain to the facts of appellant’s case. First, all would concede that the length of the initial delay prompted by the Commonwealth’s appeal of the demurrer order— approximately six years, from the date of the trial court’s stay order to the filing of appellant’s motion to dismiss— was lengthy and presumptively prejudicial, thus triggering this analysis. However, closely related to its length is the reason that would justify the delay, the second factor. Here, the Commonwealth’s appeal from the sustaining of appellant’s demurrers was allowable under the well-established law of this Commonwealth applicable at that time. See, e.g., Commonwealth v. Wimberly, 488 Pa. at 172, 411 A.2d at 1194 citing Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976); Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498 (1933). It was not until the United States Supreme Court rendered its decision in this case that this practice was discontinued. Thus, the explanation for the delay was reasonable under existing law and the Commonwealth’s decision to file a direct appeal can not be characterized as evincing a bad faith or dilatory purpose. See United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986).

The third factor to be considered is appellant’s responsibility to assert her right to a speedy trial. While appellant did oppose the granting of the stay in open court at the hearing held on the matter, she did not subsequently challenge this stay order until the filing of her motion to dismiss the remaining charges. Stay orders are reviewable by the appropriate appellate courts. See generally Pa. R.A.P. 1501 et seq. and 1701 et seq. Appellant’s decision not to challenge the stay by way of appellate review weighs against her position that she fully asserted her right to a speedy trial.

Last, the issue of prejudice to appellant must be viewed in terms of appellant’s ability to receive a fair trial. As stated by the United States Supreme Court in Barker v. Wingo:

Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

407 U.S. at 532, 92 S.Ct. at 2193 (citations omitted).

With respect to this factor of the balancing test, appellant offers nothing more than a general assertion of prejudice and fails to set forth any specific argument on this point. Rather, she merely points to the possibility of impairment of her ability to a fair trial given the voluminous testimony that the trial court would be required to judge. This “possibility of prejudice” is not sufficient to support appellant’s position that her due process rights would be violated should her trial resume. It is significant to note that following oral argument on appellant’s motion to dismiss the outstanding charges, and upon review of the record, the trial court ordered that the trial should continue. Implicit in this determination is its ability to further hear the case. The trial court, and not this Court, sits at the appropriate vantage point to make this decision and absent an abuse of discretion, it should not be disturbed. Therefore, without more than only a possibility of prejudice, this Court is unable to afford appellant the requested relief.

On the record before us we cannot hold that the delay in resuming appellant’s trial on the remaining misdemeanor charges will deny her the right to a fair trial.

Accordingly, the order of the Superior Court is affirmed and the case is remanded to the Court of Common Pleas of Allegheny County for further proceedings.

It is so ordered.

ZAPPALA, J., files a dissenting opinion in which LARSEN, J., joins. PAPADAKOS, J., files a dissenting opinion in which LARSEN, J., joins.

1 . 18 Pa.C.S. § 2501.

2 . 18 Pa.C.S. § 2705.

3 . 18 Pa.C.S. § 3302(a).

4 . 18 Pa.C.S. § 3303.

5 . 18 Pa.C.S. § 4114.

6 . The Fifth Amendment of the United States Constitution provides, in pertinent part, that "No person shall be ... subject for the same offense to be twice put in jeopardy of life or limb; ..." Through the Fourteenth Amendment, this provision is applicable to the States. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

7 . Before this Court, the case was consolidated with another case pertaining to the same double jeopardy issue. Commonwealth v. Zoller, 318 Pa.Super. 402, 465 A.2d 16 (1983).

8 . United States Constitution, Amend. VI. The Pennsylvania Constitution guarantees an accused the right to "meet the witnesses face to face.” Pennsylvania Constitution, Art. 1, § 9.