source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    504 A.2d 240
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael K. REIPRISH.
    Superior Court of Pennsylvania.
    Argued June 6, 1985.
    Filed Jan. 24, 1986.

      Anthony J. Rosini, Shamokin, for appellant.
    James J. Rosini, Milton, for appellee.
    Before SPAETH, President Judge, and McEWEN and BECK, JJ.
   BECK, Judge:

The issue before us is whether a notice of appeal from an order of a district justice to the court of common pleas acts as a stay to exclude the appeal time for purposes of Pa.R.Crim.P. 1100. We hold that such time is excludable. Therefore, the common pleas court erred in not excluding the appeal time in its Rule 1100 calculation and in dismissing the charges against appellee Reiprish. We vacate the order of the common pleas court and reinstate the charges against appellee.

Appellee was arrested following a traffic accident on April 28, 1984. Approximately 20 days thereafter, on May 18, 1984, a criminal complaint was filed charging appellee with driving under the influence of alcohol (“DUI”), 75 Pa.C.S.A. § 3731(a)(1) and § 3731(a)(4), and two related summary offenses. On June 21, 1984, at a preliminary hearing, the district justice dismissed the DUI charge for the reason that the Commonwealth failed to comply with Pa.R.Crim.P. 130(d). Rule 130(d) requires the prompt filing of a complaint when an arrest has been made without a warrant.

On June 26, 1984, in the court of common pleas, the Commonwealth filed a petition for a writ of certiorari and/or notice of appeal contesting the dismissal of the DUI charge against appellee. On June 27, 1984, the common pleas court issued an order that the district justice transmit the record in the case. The trial court's order also stated “[a]ll further proceedings on this matter and the summary offenses to which the defendant pled guilty are hereby stayed until further order of this court.”

In reviewing the Commonwealth’s appeal, the common pleas court held on August 17, 1984, that the remedy for a violation of Rule 130(d) was suppression of the evidence attributable to improper delay rather than dismissal of the charges involved. Accordingly, the court reversed the dismissal of the DUI charge and remanded the case to the district justice. A second preliminary hearing was held by the district justice on October 9, 1984, and appellee was bound over for trial in the court of common pleas.

On October 10, 1984, the Commonwealth filed a Rule 1100 petition for extension in the common pleas court. The original run date for the commencement of trial was November 14, 1984, or 180 days from the May 18, 1984, filing of the criminal complaint. The court denied the Commonwealth’s petition and refused to entertain a second petition. On November 15, 1984, the court entered an order dismissing all charges against appellee pursuant to Rule 1100.

The Commonwealth asserts on appeal that the time period between June 27, 1984, when the common pleas court ordered all proceedings stayed pending the Commonwealth’s appeal, and August 17, 1984, when the court decided the Commonwealth’s appeal and remanded the matter, is excludable when computing the 180-day period under Rule 1100. We agree with the Commonwealth.

In the orderly administration of criminal justice, an appeal generally acts as an automatic stay for Rule 1100 purposes. See Pa.R.A.P. 1701(a); Pa.R.A.P. 1764. The question is whether this principle is applicable to appeals from district justice to common pleas courts for Rule 1100 purposes. In Commonwealth v. Paprocki, 327 Pa.Super. 270, 274, 475 A.2d 792, 794 (1984), we stated:

It is clear that time which transpires while a matter is on appeal cannot be assessed against the Commonwealth for speedy trial computations. After an appeal is taken, neither the lower court nor other governmental units may proceed further in the matter. Pa.R.A.P. 1701(a). At the very best, therefore, an appeal acts as an automatic stay of the operation of Rule 1100.

The Pennsylvania Supreme Court in Jones v. Commonwealth, 495 Pa. 490, 498, 434 A.2d 1197, 1201 (1981), held that “the timely appellate procedures taken by the Commonwealth clearly divested the trial court of authority to proceed, and thus acted as an automatic supersedeas of the operation of Rule 1100.”

Thus it is clear that an appeal from a common pleas court to an appellate court acts as an automatic stay in the computation of the 180-day period required under Rule 1100. We conclude that for Rule 1100 purposes this principle is applicable to an appeal from a district justice to a common pleas court where the court of common pleas acts in the role of an appellate court. Although there is no specific rule relating to stays as applied to Rule 1100, we reach this conclusion based on two grounds: common law principles and an analysis of the reasons for Pa.R.A.P. 1701(a). The rule provides that “after an appeal is taken ... the trial court or other government unit may no longer proceed further in the matter.”

The purpose of Rule 1100 is to assure the defendant’s constitutional right to a speedy trial. However, an appeal stops the clock for Rule 1100 purposes. Orderly judicial process requires that the appealed matter be resolved before further proceedings occur. In the instant case, during the appeal period the common pleas court’s jurisdiction was limited to the matter appealed, i.e., the Rule 130(d) matter. The Commonwealth could not have commenced trial, even if it had wanted to, during the appeal period. The substantive charge of driving under the influence was not then before the court of common pleas.

Section 5105(a)(1) of the Judicial Code provides a right of appeal from the final order of every court or district justice of the Commonwealth to the court having jurisdiction over such appeals. 42 Pa.C.S.A. § 5105(a)(1). Section 5105(e) provides that “[a]n appeal shall operate as a supersedeas to the extent and upon the conditions provided or prescribed by law.” 42 Pa.C.S.A. § 5105(e). We have found no statute, court decision, or rule of court relating to whether criminal appeals from a district justice to a court of common pleas operate as a supersedeas for Rule 1100 purposes. Logic and common sense compel us to the conclusion that the principles applicable to Pa.R.A.P. 1701 apply to an appeal from a district justice to a court of common pleas on Rule 1100 calculations.

Support for our conclusion is also found in the common law principle that a court of first instance cannot further proceed with a cause after the record has been removed to an appellate court. The principle has been consistently followed since Ewing v. Thompson, 43 Pa. 372 (1862), and is controlling in the absence of a statute or rule to the contrary. See Merrick Estate, 432 Pa. 450, 454, 247 A.2d 786, 787 (1968); Corace v. Balint, 418 Pa. 262, 276, 210 A.2d 882, 889 (1965). As to the appellate courts of this Commonwealth, the rule has recognized that, the record having been removed to an appellate court, the court of first instance has no record upon which it could proceed. Gilbert v. Lebanon Valley Street Railway Co., 303 Pa. 213, 218, 154 A. 302, 304 (1931).

In the instant case, for Rule 1100 purposes, the focus of the inquiry is not further proceedings before the district justice. It is speedy trial for the defendant in the court of common pleas. If the appeal, however, causes a stay of all proceedings, except for the question on appeal, then the clock stops for Rule 1100 purposes.

We hold that the period between the filing and disposition of an appeal from a district justice to a common pleas court is excludable for Rule 1100 purposes. We limit our holding to stay the running of Rule 1100, and note that cases that restrict supersedeas in criminal matters reflect a concern that an appeal not automatically stay the execution of a sentence. See Commonwealth v. Healey, 149 Pa.Super. 497, 501, 27 A.2d 557, (1942); Commonwealth v. Alloway, 27 Pa.Commw. 132, 134, 365 A.2d 710, 711 (1976).

The order of the trial court is vacated. The charges against appellee are reinstated. We remand for proceedings consistent with this opinion. Jurisdiction is relinquished.

McEWEN, J., dissents.

SPAETH, President Judge, joined in this opinion before the expiration of his term on the court.

      . The correct date for the start of excludable time is June 26, 1984, the date the Commonwealth filed its notice of appeal and not June 27, 1984, as Commonwealth asserts. However, since the Commonwealth asks that the excludable time be counted from June 27, 1984, we make our calculations based on that date.


author: CIRILLO, Judge:

text:
    504 A.2d 243
    COMMONWEALTH of Pennsylvania v. Frank POTTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Jan. 24, 1986.

      Sandra L. Elias, Deputy District Attorney, Media, for Com., appellee.
    Before WIEAND, CIRILLO and ROBERTS, JJ.
   CIRILLO, Judge:

Appellant, Frank J. Potter, owns a small shop called “Fifth Street Jazz.” In colloquial terms, the store is a “Head Shop”: most of the inventory is commonly used in connection with prohibited controlled substances. Pursuant to a search warrant, a narcotics detective seized the bulk of appellant’s inventory. After a jury trial, appellant was convicted of possession with intent to deliver drug paraphernalia in violation of 35 P.S. § 780-113(a)(33) and was sentenced to three months probation.

The first issue raised on the appeal is whether the trial judge properly instructed the jury on the requisite state of mind for the crime charged. He summarized to the jury as follows: “So the Commonwealth must prove that this was drug paraphernalia. They must prove that the defendant knew what it was and knew the uses for which it was capable of being put.” The judge further explained that the jury should consider surrounding circumstances in deciding whether the items were drug paraphernalia, including “the statements of the owner or anyone who is in control of these objects concerning their uses,” and also common knowledge of the drug related uses of the items. These factors, the judge instructed, would point to whether the accused knew whether the items would be used in contravention of the Drug Act.

In appellant’s view, the instructions were improper insofar as they emphasized his knowledge of his customers’ intent, instead of his own intention concerning the use of the items. In other words, he views his conviction as based upon constructive knowledge not properly attributable to appellant himself.

Admittedly, it would be unconstitutional to attribute a customer’s intent to appellant, since “the statute permits a person to be arrested, prosecuted, or convicted only for that person’s own intent.” Pennsylvania Accessories Trade Association v. Thornburgh, 565 F.Supp. 1568, 1576 (M.D. Pa.1983). However, we find it equally extreme to suggest, as appellant does, that the Commonwealth must be saddled with the burden of proving appellant’s desire to have the items used in connection with controlled substances. The proper standard lies midway between these poles.

Pursuant to 35 P.S. § 780-102(b), drug paraphernalia is that which is “intended for use” with illegal drugs. Appellant would have us interpret “intended” as meaning he must desire that the items be so used. We reject this novel proposition. One is held to intend the consequence of some action if the result is practically certain to follow from the conduct. See LaFave and Scott, Criminal Law Section 28 at 196 (1st Edition, 1972). Our own Crimes Code includes an identical interpretation of the word “intended.” See 18 P.S. § 302(b)(2)(ii).

Consonant with this generally accepted definition, the Model Drug Paraphernalia Act, in the Comment to Article II, calls for an inquiry into whether the seller “is aware of a high probability an object will be used as drug paraphernalia.” The Pennsylvania statute is patterned after the Model Act. We thus look simply to appellant’s knowledge of the likelihood that the items sold would be used in conjunction with controlled substances; whether he is cognizant of an additional, lawful use of the items is not controlling. See Thornburgh, supra; Cochran v. Commonwealth, 69 Pa. Comwlth. 74, 450 A.2d 756 (1982); Commonwealth v. Lacy 344 Pa.Super. 576, 496 A.2d 1256 (1985) (adopting Thornburgh); Town Tobacconist v. Kimmelman, 94 N.J. 85, 462 A.2d 573 (1983).

It now remains for us to determine how this intent on the part of appellant is to be found. The definition of drug paraphernalia is incorporated into the proscriptive section of the statute itself. When an item sold is among those listed in the statute as drug paraphernalia, intent on the part of the seller is automatically found. However, if the item sold is not on the list of prohibited items, it does not necessarily follow that the seller cannot be convicted under the statute. As the trial judge explained in his charge to the jury, there may exist important surrounding circumstances which allow a finding of intent to deliver paraphernalia. Thus, a grocery store owner who sells plastic baggies to a customer unaware of the use to which they will be put has broken no law, since baggies are not listed by statute as drug paraphernalia. However, if the customer were to ask the grocer for plastic baggies suitable for the storage of marijuana and the grocer provided them, a jury could very well find the seller in violation of the law, because in such instance the baggies are drug paraphernalia. See Town Tobacconist, Id., at 116-17, 462 A.2d at 589.

Statements made by the buyers concerning their intended use of the items were not attributed to the seller in finding his intent. Rather, the statements were merely an aid in determining whether the products sold actually had a commonly recognized drug-related function; as such, they were a factor among many to be considered by the jury. No direct correlation was made between the buyers’ intent and that of the seller. The charge was therefore proper in all respects.

Appellant also argues that the Commonwealth’s circumstantial evidence was insufficient to prove him guilty beyond a reasonable doubt. As has been repeatedly held, the test to be applied is whether the facts support the guilty verdict when interpreted in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Lindsey, 345 Pa.Super. 191, 497 A.2d 1369 (1985); Commonwealth v. Merrick, 338 Pa.Super. 495, 488 A.2d 1 (1985); Commonwealth v. Brown, 336 Pa.Super. 628, 486 A.2d 441 (1984). Further, guilt beyond a reasonable doubt can be shown wholly by circumstantial evidence. Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985); Commonwealth v. Alvarado, 333 Pa.Super. 63, 481 A.2d 1223 (1984). It has been specifically held that the principle allows the intent of an accused to be determined from circumstantial evidence alone. Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981). For these reasons, and in light of the testimony detailing the nature of the seized items, we reject appellant’s argument entirely.

Appellant next contends the trial court erred in denying his motion to suppress the evidence seized from his store. Specifically, he urges that the facts upon which the search warrant were based did not sufficiently make out a showing of probable cause, since none of those facts indicated that he possessed the mental state required for a violation of the Drug Paraphernalia Act.

An experienced narcotics agent entered the store and purchased a “strap-on-face” mask that was on display along with other items commonly used to aid in the ingestion of illegal drugs. He described these items in the affidavit, aíong with the Drug Paraphernalia Act’s definition of prohibited items.

We believe these facts provided the magistrate with a rational, common sense basis for finding it probable that the storeowner was doing business in contravention of the law; in other words, realizing the likelihood that the goods sold would be used in connection with controlled substances. The affidavit was therefore valid. In so holding, we note that our Court has adopted the more flexible “totality of the circumstances” approach to probable cause determinations, as espoused in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See Commonwealth v. Neidig, 340 Pa.Super. 217, 489 A.2d 921 (1985); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984); Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983); Commonwealth v. Crawford, 320 Pa.Super. 95, 466 A.2d 1079 (1983). In addition, a trial court’s determination of probable cause is accorded the utmost deference on appeal. Commonwealth v. Neidig, supra.

Finally, appellant contends the trial judge improperly cut short a line of questioning intended to show appellant’s ignorance of the illegality of his conduct, ostensibly based on the fact that the police had never told him in the past that he was breaking the law. This argument in wholly without merit. We seriously doubt that appellant believed his sales were legal simply because he had never been arrested on a similar charge. Regardless, he was able to state to the jury, before questioning was cut short, that several officers had been in his store on prior occasions and had not mentioned the illegal nature of appellant’s activity. He was found guilty in spite of that testimony. We are convinced beyond a reasonable doubt that any error in the cessation of questioning on the matter was harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); Commonwealth v. Evans, 332 Pa.Super. 301, 481 A.2d 625 (1984). See also, U.S. v. Otto, 742 F.2d 104 (3rd Cir.1984) (no reversible error in trial court’s denial of opportunity to present evidence of earlier legitimate transactions to negate intent to defraud).

The judgment of sentence is affirmed.