author: POPOVICH, Judge: JOHNSON, Judge,

text:
    635 A.2d 1086
    COMMONWEALTH of Pennsylvania, Appellant, v. James F. SMITH.
    Superior Court of Pennsylvania.
    Submitted Nov. 1, 1993.
    Filed Dec. 22, 1993.

      Charles J. Duke, Asst. Dist. Atty., Smethport, for Com., appellant.
    Ronald P. Langella, Bradford, for appellee.
    Before POPOVICH, JOHNSON and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the order entered in the Court of Common Pleas of McKean County granting appellee’s motion in limine with regard to the exclusion of testimony about appellee’s sexual offenses against his oldest daughter, Mona Smith Novak. We hold that the court below abused its discretion in excluding the aforesaid testimony, and we, thus, reverse that ruling.

Upon review of the record, we find that the Commonwealth has certified that the order in question substantially handicaps its prosecution. Hence, we have jurisdiction to entertain this appeal. See Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992) (appealability of the grant of motion in limine which excludes Commonwealth evidence); Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (appealability from suppression order is proper where Commonwealth certifies in good faith that order terminates or substantially handicaps its prosecution); But cf. Commonwealth v. Frankenfield, 410 Pa.Super. 377, 599 A.2d 1346 (1991) (record fails to disclose certification by Commonwealth).

Before addressing the merits of the Commonwealth’s points of error, we recount the history of this case as follows: On or about July 14, 1992, Stephanie Smith, then ten (10) years old, notified the McKean County Children and Youth Services (“CYS”) that appellee, her father, had sexually molested her that morning and several weeks earlier. Pursuant to an investigation conducted by the Pennsylvania State Police, the police obtained statements from appellee’s two other daughters, Erin Smith and Mona Smith Novak. Both reported that appellee had also sexually abused them. On July 16, 1992, Erin Smith, the victim in the Commonwealth’s case against appellee, told the police that appellee sexually molested her on a regular basis from the time she was five (5) or six (6) years of age until ten (10) years of age. Erin Smith was sixteen (16) years old at the time of the police reports. On August 27, 1992, a preliminary hearing was held whereby Stephanie Smith and Erin Smith both testified as to appellee’s sexual activities with them. Pursuant to that hearing, the following charges were bound over to the lower court: rape, 18 Pa. C.S.A. § 3121(1) and (4); statutory rape, 18 Pa.C.S.A. § 3122; involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123(1), (4) and (5); aggravated indecent assault, 18 Pa.C.S.A. § 3125(2) and (6); indecent exposure, 18 Pa.C.S.A. § 3127; and corruption of minors, 18 Pa.C.S.A. § 6301. Preliminary Hearing N.T. 8/27/92, p. 48. On October 27, 1992, Mona Smith Novak, then twenty-seven (27) years old, informed the police that appellee had sexually molested her almost on a daily basis from the time she was about seven (7) years of age until sixteen (16) years of age.

On November 24, the court below entered an order scheduling a jury trial for December 11, 1992. On December 3, 1992, appellee filed a motion in limine along with a brief seeking to suppress any testimony concerning appellee’s sexual activities with Stephanie Smith and Mona Smith Novak. Further, appellee sought to exclude letters written by appellee to Mona Smith Novak, Erin Smith, Ed Smith (appellee’s son), and Marian and Ed Speedy (the parents of appellee’s ex-wife). Appellee wrote the letters subsequent to his arrest. After a hearing to address and dispose of the issues raised by appellee in his motion in limine, by order dated December 9, 1992, the court ordered that the Commonwealth may not offer in evidence any testimony from Mona Smith Novak or others concerning any prior alleged offenses by appellee against Mona Smith Novak. The lower court overruled and dismissed the remainder of appellee’s motion in limine. On January 4, 1993, the Commonwealth filed notice of appeal along with a certification contending that the exclusion of testimony by or concerning Mona Smith Novak substantially hinders the prosecution.

The Commonwealth asserts that testimony by or about Mona Smith Novak is admissible under the common scheme, plan, design or course of conduct exception to the general rule that evidence of one crime is inadmissible against a defendant being tried for another crime. See Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973). The Commonwealth further argues that evidence of appellee’s offenses against Mona Smith Novak demonstrates a recurring sequence of acts over a continuous period of time, and that the acts perpetuated upon appellee’s three daughters are of similar character. It also contends that its need for that evidence is great, and that cautionary instructions to the jury would alleviate any prejudice in admitting the aforementioned evidence.

In evaluating appellant’s claim, the lower court found that testimony by or about Mona Smith Novak pertained to events which occurred ten (10) to twenty (20) years ago. The court below then determined that the time involved of appellee’s offenses against Mona Smith Novak was too remote to have any probative value and that the prejudicial effect of such testimony was so strong as to deny appellee his presumption of innocence. Moreover, the lower court concluded that testimony of offenses against Mona was not essential to the Commonwealth’s case in light of the admissibility of testimony concerning acts perpetuated by appellee upon his two other daughters, Stephanie and Erin. Trial Court Opinion 4/5/93, p. 2.

The standard of review for evidentiary rulings of the lower court is well settled. “Admissibility of evidence is a matter addressed to the sound discretion of the trial court, and an appellate court may reverse only upon a showing that the trial court abused its discretion.” Commonwealth v. Odum, 401 Pa.Super. 8, 9-10, 584 A.2d 953, 954 (1990), quoting Commonwealth v. Claypool, 508 Pa. 198, 200, 495 A.2d 176, 178 (1985). In Commonwealth v. Frank, 395 Pa.Super. 412, 421-22, 577 A.2d 609, 614 (1990), alloc. denied, 526 Pa. 629, 584 A.2d 312, our Court was presented with the question of whether the trial court abused its discretion in admitting evidence under the common plan exception. There, our Court provided the following analysis in addressing that issue:

[A] determination of whether evidence is admissible under the common plan exception must be made on a case by case basis in accordance with the unique facts and circumstances of each case. However, we recognize that in each case, the trial court is bound to follow the same controlling, albeit general, principles of law. When ruling upon the admissibility of evidence under the common plan exception, the trial court must first examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator. Given this initial determination, the court is bound to engage in a careful balancing test to assure that the common plan evidence is not too remote in time to be probative. If the evidence reveals that the details of each criminal incident are nearly identical, the fact that the incidents are separated by a lapse of time will not likely prevent the offer of the evidence unless the time lapse is excessive. Finally, the trial court must assure that the probative value of the evidence is not outweighed by its potential prejudicial impact upon the trier of fact. To do so, the court must balance the potential prejudicial impact of the evidence with such factors as the degree of similarity established between the incidents of criminal conduct, the Commonwealth’s need to present evidence under the common plan exception, and the ability of the trial court to caution the jury concerning the proper use of such evidence by them in their deliberations.

Id. 395 Pa.Super. at 421-22, 577 A.2d at 614. In Commonwealth v. Frank, defendant, a therapist, contended that the trial court committed prejudicial error in admitting testimony as to defendant’s sexual activity with six of his patients which occurred three to four years prior to the criminal acts underlying the conviction. 395 Pa.Super. at 417-19, 577 A.2d at 612. We rejected defendant’s argument that the sexual offenses were too remote in time to be deemed admissible. 395 Pa.Super. at 427-30, 577 A.2d at 617-618.

After scrutinizing the record in view of the considerations espoused by our decision in Commonwealth v. Frank, we find that the lower court abused its discretion in arriving at legal conclusions from the particular facts of this case. Upon finding that testimony about appellee’s sexual acts against Mona Smith Novak related to events which occurred (10) to twenty (20) years ago, the court below determined that the time involved from said testimony was too remote to have probative value. At first glance, we are inclined to agree with that conclusion. However, the issue of remoteness under the common plan exception is determined by analyzing the time involved between each of the criminal incidents. “If the evidence reveals that the details of each criminal 'incident are nearly identical, the fact that the incidents are separated by a lapse of time mil not likely prevent the offer of evidence unless the time is excessive.” Id. at 421, 577 A.2d at 614 (emphasis added). Initially, we note that the criminal incidents perpetrated upon appellee’s daughters are strikingly similar. Both Erin Smith and Mona Smith Novak reported to the Pennsylvania State Police that appellee had sexually abused them when they were younger. At the time of the police reports, Mona was twenty-seven (27) years old, and Erin was sixteen (16) years old. Mona informed the police that appellee had sexually molested her almost on a daily basis from the time she was about seven (7) years of age until sixteen (16) years of age. Erin stated that appellee had sexually molested her on a regular basis from the time she was five (5) or six (6) years of age until ten (10) years of age. We find that the lapse of time between appellee’s offenses against his daughters, Mona and Erin, to be non-existent, or minimal at best. Certainly, the record reveals that at the time appellee ended his sexual activity with Mona, appellee began his sexual offenses against Erin. We, therefore, reject appellee’s assertion that incidents of sexual offenses against Mona are too remote in time to be probative. “Indeed, the relevancy of this evidence rested in large part upon the fact that the evidence indicated a recurring sequence of acts by this [defendant] over a continuous span of time, as opposed to random and remote acts.” Id. at 427-29, 577 A.2d at 617. See Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989) (evidence admissible where there is a logical connection between the two crimes, despite time lapse of ten months separating the sexual attacks). We conclude that the lower court abused its discretion in assessing the issue of remoteness on the ground that the court failed to construe appellee’s criminal activities against his daughters in conjunction with one another.

Further, we find that the probative value of testimony about offenses against Mona Smith Novak is not outweighed by its potential prejudicial impact. The incidents of criminal conduct perpetuated upon appellee’s daughters are of similar character. The Commonwealth demonstrates a need to present testimony of appellee’s sexual abuse of Mona Smith Novak because the victim, Erin failed to reveal promptly that she had been molested. Cf. Frank, 395 Pa.Super. at 428-30, 577 A.2d at 618 (Commonwealth’s need for evidence not minimal in light of victim’s failure to reveal promptly that he had been sexually molested by defendant). Finally, we find that cautionary instructions to the jury as to the limited purpose for which evidence of appellee’s sexual offenses against Mona Smith Novak could be considered would alleviate any prejudice in admitting that evidence.

Upon close examination of the record, we are of the opinion that evidence of appellee’s sexual offenses against his oldest daughter, Mona Smith Novak, satisfies the requirements of the common plan exception to the general rule that evidence of one crime is inadmissible against a defendant being tried for another crime. We conclude that the court below abused its discretion in precluding the Commonwealth from offering the aforesaid evidence. Accordingly, we reverse that ruling of the lower court.

Order reversed and remanded in accordance with this Opinion. Jurisdiction relinquished.

JOHNSON, J., files a dissenting statement.

JOHNSON, Judge,

dissenting.

On the unique facts of this case, the distinguished pretrial judge, the Honorable J. Quint Salmon, denied the request that the testimony of one daughter and certain letters written by the defendant be suppressed, while granting that portion of the motion in limine which sought the exclusion of the testimony of another daughter. I am unable to find any abuse of discretion by Judge Salmon. I would affirm upon his concise, well-reasoned Memorandum Opinion, filed April 5, 1993. Hence, this Dissenting Statement.

      . Our review of the record reveals that the jury trial scheduled for December 11, 1992 was cancelled due to a snow storm. On December 21, 1992, the lower court entered an order rescheduling trial for January 14, 1993. The Commonwealth’s appeal has properly stayed trial proceedings in this case. See Commonwealth v. Cohen, 529 Pa. 552, 557-58, 605 A.2d 1212, 1215 (1992) (an appeal from a pretrial order granting a motion to exclude evidence which is presented before the swearing of the jury will not have the effect of interrupting and disrupting a jury trial).

      . The Commonwealth also asserts that letters written by appellee to Mona Smith Novak subsequent to his arrest should be admitted into evidence. However, the record reveals that the lower court denied appellee's motion in limine with respect to those letters and determined that questions of relevancy and admissibility of said letters should be assessed by the trial judge. Trial Court Opinion 4/5/93, p. 2. Consequently, we need not address the Commonwealth's contention.


source: Caselaw Access Project

author: WIEAND, Judge.

license: Public Domain

text:
    635 A.2d 1091
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas DeBLASE, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1993.
    Filed Jan. 7, 1994.
    Application for Reargument or Reconsideration Denied Feb. 23, 1994.

      Mary Macneil Killinger, Executive Asst. Dist. Atty., Norris-town, for Com., appellant.
    Samuel C. Stretton, West Chester, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge.

In this appeal we have been asked to review a trial court order which dismissed charges of murder, robbery and criminal conspiracy against Thomas DeBlase on grounds that his constitutionally guaranteed rights to due process and a speedy trial had been violated.

The dead body of David Swinehart, a wealthy real estate developer, was found on January 15, 1982, in a vehicle which had been parked in an alley in Pottstown, Montgomery County. Death had been caused by bludgeoning. Charges were not filed until May 11, 1985, when DeBlase, the victim’s nephew, his brother Jeffrey, Terry Lee Maute and Arthur Hall were arrested for the crime. A preliminary hearing was held for DeBlase on May 31, 1985, after which the charges of murder, robbery and conspiracy were returned to court. DeBlase was arraigned on July 24, 1985.

A portion of the Commonwealth’s evidence consisted of intercepted conversations in which DeBlase had been a participant. Some conversations had been intercepted by an electronic wiretap and others by virtue of a body wire which had been worn eonsensually by DeBlase’s brother, Jeffrey. DeB-lase filed a petition to suppress this evidence and, after hearing before the Honorable Horace Davenport, was successful in suppressing evidence obtained through both the wiretap and the body wire. The Commonwealth appealed to the Superior Court which, on September 22, 1986, affirmed the suppression of the wiretap evidence but reversed the suppression of statements recorded as a result of the body wire. See: Commonwealth v. DeBlase, 357 Pa.Super. 71, 515 A.2d 564 (1986). A petition for allocatur was granted by the Supreme Court; but, on January 22, 1988, the appeal was dismissed as having been improvidently granted. See: Commonwealth v. DeBlase, 517 Pa. 323, 536 A.2d 339 (1988).

Upon remand, trial was set for June 27, 1988. DeBlase, however, retained present counsel, who filed a second motion to suppress the body wire evidence on grounds that the evidence had been obtained in violation of Article I, Section 8, of the Pennsylvania Constitution as interpreted by the Superi- or Court in Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (en banc). This petition was also heard by Judge Davenport who, in reliance on the decision in Commonwealth v. Schaeffer, supra, suppressed the body wire evidence on June 23, 1988. The Commonwealth appealed. The Superior Court, on April 5, 1989, reversed the suppression order and remanded for reconsideration in light of appellate court decisions in Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff'd in Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990); Commonwealth v. Rodriguez, 519 Pa. 415, 548 A.2d 1211 (1988), and Commonwealth v. Brion, 381 Pa.Super. 83, 552 A.2d 1105 (1989), allocatur granted, 534 Pa. 652, 627 A.2d 730 (1993). See: Commonwealth v. DeBlase, 390 Pa.Super. 651, 561 A.2d 817 (1989). On April 26, 1989, DeBlase filed a petition in the Supreme .Court for allowance of appeal.

After twenty-one (21) months had elapsed without a decision on his petition for allowance of an appeal to the Supreme Court, DeBlase filed in the Supreme Court, on January 24, 1991, an Emergency Petition for Dismissal on grounds that his rights to a. speedy trial and due process had been violated by delay in the appellate process. When the Supreme Court did not act on this petition, DeBlase filed in the United States District Court for the Eastern District of Pennsylvania, on April 23, 1991, a petition for writ of habeas corpus. This petition was assigned to a federal magistrate for review.

On August 26, 1991, DeBlase filed in the federal court a petition for bail and, following hearing, was released on restrictive bail in November, 1991, after six and one-half (6/é) years in prison. DeBlase continues on bail, but subject to a curfew and electronic monitoring.

On December 2, 1992, the federal magistrate filed a report containing his conclusion that DeBlase’s right to a speedy trial had been violated. He recommended that the charges against DeBlase be dismissed unless he be brought to trial within one hundred twenty (120) days. The prosecution then filed in the Supreme Court of Pennsylvania a petition for extraordinary relief in which it urged the Court to act on DeBlase’s petition for allocatur. On December 28, 1992, three years and eight months after the petition for allowance of an appeal had been filed, the Supreme Court entered an order denying the petition for allocatur without prejudice and denying the emergency petition as moot. Commonwealth v. DeBlase, 533 Pa. 617, 619 A.2d 699 (1992).

BeBlase then filed a petition in the federal court seeking to stay the criminal proceedings in the state court pending a determination of his petition for habeas corpus. This petition was denied. Also denied was the petition for habeas corpus. This order was appealed by BeBlase to the Court of Appeals for the Third Circuit.

When the case was returned to the trial court by the Pennsylvania Supreme Court, BeBlase filed an omnibus pretrial motion in which he requested the trial court, inter alia, to dismiss the charges on grounds that his rights to a speedy trial and to due process of law had been violated by the delay in commencing trial. After hearing, the trial court, on April 19, 1993, granted the motion and discharged the defendant. The Commonwealth appealed.

Both the Sixth Amendment to the Constitution of the United States and Article I, § 9, of the Pennsylvania Constitution provide that in all criminal prosecutions the accused shall have a right to a speedy trial. In Klopfer v. North Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, 7-8 (1967), the United States Supreme Court held that the right to a speedy trial, as guaranteed by the Sixth Amendment, is fundamental and is applicable to the states by virtue of the Fourteenth Amendment. See: Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 1568-1569, 26 L.Ed.2d 26, 31-32 (1970). See also: Redd v. Sowders, 809 F.2d 1266, 1268 (6th Cir.1987); Commonwealth v. Reinhart, 466 Pa. 591, 597, 353 A.2d 848, 852 (1976), cert. denied, 429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (1976); Commonwealth v. Ditzler, 443 Pa. 73, 79, 277 A.2d 336, 337 (1971). In Commonwealth v. Hailey, 470 Pa. 488, 493-494, 368 A.2d 1261, 1264 (1977), the Pennsylvania Supreme Court observed that the right to a speedy trial under Article I, § 9, of the Pennsylvania Constitution is co-extensive with the guarantee of the Sixth Amendment of the United States Constitution. Accord: Commonwealth v. Glass, 526 Pa. 329, 334-335, 586 A.2d 369, 371-372 (1991); Commonwealth v. Smith, 524 Pa. 72, 78-79, 569 A.2d 337, 340 (1990); Commonwealth v. Lee, 460 Pa. 374, 379, 333 A.2d 773, 776 (1975).

In the landmark decision of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court recognized that “the right to speedy trial is a more vague concept than other procedural rights [and that] [i]t is ... impossible to determine with precision when the right has been denied.” Id. at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 112. Because of the amorphous nature of the right to a speedy trial, the Court rejected the adoption of a rigid formula to determine its violation. Instead, the Supreme Court fashioned “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Id. at 530, 92 S.Ct. at 2191-2192, 33 L.Ed.2d at 116 (footnote omitted). This test was articulated as follows:

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.
Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
A fourth factor is prejudice to the defendant. 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.
We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial'is specifically affirmed in the Constitution.

Barker v. Wingo, supra 407 U.S. at 530-533, 92 S.Ct. at 2192-2193, 33 L.Ed.2d at 116-119 (citation and footnotes omitted).

In the instant case, appellee was arrested on May 11, 1985, and the case was called to trial on April 19, 1993, almost eight years later. The Commonwealth concedes that such a delay is presumptively prejudicial under Barker v. Wingo, supra. The Commonwealth also concedes that appellee has asserted his right to a speedy trial diligently and consistently. These two factors of the Barker v. Wingo balancing test, therefore, will be weighed in appellee’s favor.

The delay in the instant case is almost entirely attributable to the litigation of pre-trial suppression motions and the appellate review of trial court rulings thereon. During the period between appellee’s arrest and April, 1989, appellee filed two suppression motions, both of which were granted by the trial court. The Commonwealth during the same period twice filed appeals in the Superior Court and was successful, on both occasions, in obtaining reversal of the trial court’s suppression orders. The Commonwealth asserts, therefore, that the delay prior to April, 1989 was reasonable and should not be weighed against the Commonwealth.

With respect to delays occasioned by pre-trial proceedings, the Pennsylvania Supreme Court has observed, “[w]e believe that a reasonable amount of time consumed by the disposition of motions and interlocutory appeals not made for purposes of delay, regardless of who is the moving party, is justifiable delay.” Commonwealth v. Ware, 459 Pa. 334, 347, 329 A.2d 258, 264-265 (1974). See also: Jones v. Commonwealth, 495 Pa. 490, 500-502, 434 A.2d 1197, 1202-1203 (1981); Commonwealth v. Myers, 472 Pa. 200, 208, 371 A.2d 1279, 1282-1283 (1977). In United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), the United States Supreme Court said that, “[g]iven the important public interests in appellate review, it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay.” Id. at 315, 106 S.Ct. at 656, 88 L.Ed.2d at 654 (citation omitted). See also: Ringstaff v. Howard, 885 F.2d 1542, 1544 (11th Cir.1989) (en banc), cert. denied, 496 U.S. 927, 110 S.Ct. 2622, 110 L.Ed.2d 643 (1990); United States v. Guerrero, 756 F.2d 1342, 1349-1350 (9th Cir.1984), cert. denied, 469 U.S. 934, 105 S.Ct. 334, 83 L.Ed.2d 270 (1984). Moreover, “reversals by the Court of Appeals are prima facie evidence of the reasonableness of the Government’s action.” United States v. Loud Hawk, supra, 474 U.S. at 316, 106 S.Ct. at 656, 88 L.Ed.2d at 655. See also: United States v. Layton, 855 F.2d 1388, 1412 (9th Cir.1988), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989).

Therefore, we agree with the Commonwealth that the delay between appellee’s arrest on May 11, 1985, and the Superior Court’s decision on the Commonwealth’s second interlocutory appeal on April 5, 1989, cannot be weighed against the Commonwealth for purposes of determining a speedy trial violation. It follows that the primary focus of our review, as both parties agree, must be the delay of three (8) years and eight (8) months between April 26, 1989, and December 28, 1992.

It was during this period that appellee’s Petition for Allowance of Appeal lay dormant in the Supreme Court, and it was this delay which the trial court found to have violated appellee’s due process and speedy trial rights. The court reasoned as follows:

[T]he delay in this case was due to the court system and it eannot.be blamed on DeBlase as the Commonwealth was prone to do. In fact, the delay was due to failure of the appellate court to set time constraints for timely resolution of an appellate matter, particularly this case which involved a viable and assertable pretrial issue. This is not to blame the Commonwealth for the incurable position it was placed in by the Pennsylvania Supreme Court which ignored any semblance of appellate docket control. This very fact, however, cannot turn back the tides of time which are unchallenged and whose bare facts irrevocably point to excessive delays amounting to speedy trial and due process violations.

Trial Court Opinion at p. 22.

The United States Supreme Court, in United States v. Loud Hawk, supra, addressed the effect of delay caused by a defendant’s interlocutory appeal and observed:

In that limited class of cases where a pretrial appeal by the defendant is appropriate, delays from such an appeal ordinarily will not weigh in favor of a defendant’s speedy trial claims. A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court. A defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy trial.

Id., 474 U.S. at 316, 106 S.Ct. at 656-657, 88 L.Ed.2d at 655 (citation omitted). The inference to be drawn from this is that an unjustifiable delay by an appellate court in resolving an interlocutory appeal may be sufficient to constitute unreasonable delay. Where it is the defendant who has put the appeal process in gear, however, he will not readily be rewarded by dismissal of the charges because of delay caused by the appellate process.

In the instant case, the reason for the delay in the Supreme Court’s disposition of the defendant’s petition for allocatur does not appear. The issue which the defendant asked the Supreme Court to review was whether the use of a body wire with only the consent of the wearer violated the right of privacy, under Article I, § 8, of the Pennsylvania Constitution, of a non-consenting person whose conversation was recorded. A similar issue was presented in Commonwealth v. Schaeffer, supra, where the Supreme Court had granted allocatur on December 2, 1988. A decision was not rendered until June 1, 1993 when an equally divided Court affirmed the order of the Superior Court. Shortly thereafter, on June 25, 1993, the Supreme Court granted a petition for reargument, and the case presently awaits such reargument. It may have been that the delay in deciding DeBlase’s petition for allocatur and the Court’s difficulty in deciding Schaeffer were related, but this does not appear from the record in the instant case. Because the delay of three years and eight months is substantial and because on the record in this case the delay is unexplained, we are hard pressed to find justification for it.

“The Commonwealth has an affirmative duty to move a case to trial.” Commonwealth v. Cooley, 484 Pa. 14, 20, 398 A.2d 637, 640 (1979). Where “the delay is not attributable to the affirmative action of the defendant, the ultimate responsibility for such delay, which is the product of either negligence or inefficiency, must rest with the government rather than with the [defendant].” Commonwealth v. Roundtree, 469 Pa. 241, 252, 364 A.2d 1359, 1364-1365 (1976). Here, while the case lay dormant before the Supreme Court, and appellee repeatedly asserted his right to a speedy trial, the Commonwealth was nevertheless powerless to bring the case to trial. Thus, while the delay must be weighed against the Commonwealth, it will not be weighed as heavily as if it had been caused deliberately by the Commonwealth. See: Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. See also: Commonwealth v. Hawk, 390 Pa.Super. 382, 390, 568 A.2d 953, 957 (1990) (en banc), aff'd on other grounds, 528 Pa. 329, 597 A.2d 1141 (1991).

The final prong of the Barker v. Wingo balancing test involves the prejudice, if any, caused by the delay. The United States Supreme Court has recently observed:

[Consideration of prejudice is not limited to the specifically demonstrable, and, ... affirmative proof of particularized prejudice is not essential to every speedy trial claim. See Moore, supra, 414 U.S. [25], at 26, 94 S.Ct., [188] at 189 [38 L.Ed.2d 183 (1973) ]; Barker, supra, 407 U.S., at 533, 92 S.Ct., at 2193. Barker explicitly recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony “can rarely be shown.” 407 U.S., at 532, 92 S.Ct., at 2193. And though time can tilt the case against either side, see id., at 521, 92 S.Ct., at 2187; Loud Hawk, supra, 474 U.S., at 315, 106 S.Ct., at 656, one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, see Loud Hawk, supra, at 315, 106 S.Ct., at 656, it is part of the mix of relevant facts, and its importance increases with the length of delay.

Doggett v. United States, — U.S. —, —, 112 S.Ct. 2686, 2692-2693, 120 L.Ed.2d 520, 530-531 (1992). See: Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (affirmative demonstration of prejudice not necessarily required to prove speedy trial violation). “[T]he longer the delay and the more vigorous the defendant’s demand to be tried speedily, the more reason the state must show for the delay and the less harm (of whatever type) to himself the defendant need show.” United States ex rel. Mitchell v. Fairman, 750 F.2d 806, 808 (7th Cir.1984). See also: United States v. Shell, 974 F.2d 1035, 1036 (9th Cir.1992); United States v. Koskotas, 888 F.2d 254, 258 (2nd Cir.1989); Commonwealth v. Hawk, supra, 390 Pa.Super. at 391, 568 A.2d at 957.

Here, DeBlase was incarcerated for a period of six and one-half (6)é) years from the date of his arrest until the time when he was released on bail by the federal court. That this incarceration was oppressive cannot be denied. “Likewise, it would be pure sophistry to argue that this delay did not cause the accused and his family severe anxiety.” Commonwealth v. Williams, 457 Pa. 502, 507, 327 A.2d 15, 17 (1974) (footnote omitted). Still, the evidence of guilt in this case is great, and the root cause of the delay in bringing the case to trial was appellee’s pre-trial attempt to suppress incriminating statements which he had made. Although he was clearly entitled to do this and the results have confirmed the existence of arguable merit in the claims which he advanced, his complaint that he was prejudiced by the resulting delay sounds somewhat hollow. Since November, 1991, moreover, he has been free on bail. During all this time there is no evidence that the Commonwealth intentionally sought to delay the trial.

Appellee argues, inter alia, that he has been prejudiced because Terry Lee Maute was tried and acquitted of participating in the robbery and murder of David Swinehart and has now agreed to testify as a witness for the prosecution. This is not the type of prejudice which the speedy trial rule was intended to prevent. The rule was not intended to benefit persons accused of crime by preventing a determination of issues of guilt and innocence after a full disclosure of the facts. If Maute testifies as a Commonwealth witness, he will undoubtedly be subjected to cross-examination by the defense, when he can be asked about prior inconsistent statements, if any, which he made. Thereafter, the credibility of his testimony will be for the trier of the facts.

The trial court found that a defense witness had died during the pre-trial delay and that appellee had been prejudiced thereby. Our careful review of the record fails to disclose evidence of such a witness and/or the substance of his or her testimony. Without such evidence, we are constrained to reject the trial court’s finding as unsupported by the record.

There is no evidence of any specific prejudice to appellee because of the delay in commencing trial. We say this fully cognizant of the fact that delay frequently causes prejudice which cannot be demonstrated by specific evidence and that excessive delay may well compromise the reliability of a trial in ways that neither party can identify or prove. The delay which occurred in this case following the filing by appellee of a petition for allocatur from a decision by the Superior Court was unfortunate. Still, except for this delay, the Commonwealth consistently has acted with due diligence. The delay was in the judicial process and arose because of circumstances which the Commonwealth was almost powerless to prevent. The several appeals involved non-frivolous issues of substantial magnitude and complexity. Therefore, before delay in the appellate process is weighed so heavily against the Commonwealth that its prosecution of appellee for murder is barred, the delay must cause specific prejudice. No specific prejudice can be found and identified in the instant case.

We hold, after application of the Barker v. Wingo balancing test, that appellee’s speedy trial rights were not violated. For similar reasons, appellee has not been denied due process of law.

Reversed and remanded for further proceedings. Jurisdiction is not retained meanwhile.

      . Jeffrey DeBlase was tried and convicted in September, 1985 in connection with the killing of his uncle and is currently serving a sentence of life imprisonment.

      . Terry Lee Maute was tried in October, 1985, and presented an alibi defense. He was acquitted of charges relating to the murder of David Swinehart.

      . Arthur Hall entered a plea of guilty, on May 5, 1993, to a charge of robbery.

      . Allocatur was granted in this case by the Supreme Court, which heard oral argument on October 26, 1989. The case was resubmitted on briefs on August 28, 1992, and a decision came down on June 1, 1993, when an equally divided Supreme Court affirmed the Superior Court's order. See: Commonwealth v. Schaeffer, (J. 183-1989; filed June 1, 1993). On June 25, 1993, however, the Supreme Court granted reargument, and the case is still pending.

      . While the appeal was pending, DeBlase filed a petition to be released on bail, but the trial court, after hearing, denied the petition. Similar petitions to the Superior and Supreme Courts were also unsuccessful.

      . Following the filing of a petition for allowance of an appeal, DeBlase filed in the trial court a petition to dismiss pursuant to Pa.R.Crim.P. 1100. The trial court refused to act on the petition, however, because of the pendency of the petition for allowance of an appeal in the Supreme Court.

      . A separate stay petition was also denied by the Court of Appeals for the Third Circuit.

      . This appeal was dismissed at DeBlase’s request after the trial court dismissed the charges pursuant to the order from which the present appeal has been taken.

      . Appellee’s petition was heard by the Honorable Samuel W. Salus, II.


author: PER CURIAM: OLSZEWSKI, Judge,

text:
    635 A.2d 1098
    Fitch B. JEFFERIES, Jr., Appellant, v. E.J. CALLAGHAN & CO.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1993.
    Filed Jan. 12, 1994.
    Fitch B. Jefferies, Jr., appellant, pro se.
    James C. Dalton, Doylestown, for appellee.
    Before ROWLEY, President Judge, and OLSZEWSKI and BECK, JJ.
   PER CURIAM:

Order affirmed.

OLSZEWSKI, J., filed a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I must respectfully dissent from my learned colleagues’ decision. I do not find the pleadings sufficient to determine that E.J. Callaghan &, Co. had probable cause to bring its original suit. Callaghan voluntarily discontinued its suit with prejudice sometime after the issuance of a rule to show cause why Callaghan should not be compelled to provide more specific answers to Jefferies’ interrogatories. This voluntary dismissal is prima facie evidence of a want of probable cause. See Emerson v. Cochran, 111 Pa. 619, 622, 4 A. 498, 499 (1886). Having such a presumption requires one who brings a suit and then discontinues it to affirmatively establish that he had probable cause to initiate the action. While this presumption can easily be rebutted, the pleadings in this case do not accomplish that. Callaghan’s reason for discontinuing the suit is a disputed issue and the pleadings do not establish probable cause on their own.

Jefferies’ admissions to the allegations in Callaghan’s complaint do not establish probable cause to bring the defamation suit because Jefferies averred that his statements were true. Furthermore, falsity is an element of defamation. The Pennsylvania Supreme Court wrote in Hepps v. Philadelphia Newspapers, Inc.: “[Although falsity is an element of the cause of action, we have concluded that the burden should be placed upon the alleged defamer to establish the truth of these accusations.... ” Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 312, 485 A.2d 374, 379 n. 2 (1984) (emphasis added), rev’d, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (burden of proof is on - plaintiff to prove falsity in defamation cases with media defendants); see also Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495, 499, 421 A.2d 831, 833 (1980) (“An action for defamation is based on a violation of the fundamental right of an individual to enjoy a reputation unimpaired by false and defamatory attacks.”) (emphasis added). Thus, falsity is an element of defamation.

In malicious prosecution cases, the legislature has defined probable cause for bringing the original suit:

A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:
(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
(3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

42 Pa.C.S.A. § 8352. If the statements were true and Callaghan knew the statements were true then it could not reasonably believe the claim was valid. Likewise, if the statements were true and Callaghan knew this, then Callaghan would have to have disclosed this fact to counsel in order to have the protection of reliance on counsel. Callaghan was, at least presumptively, in as good a position as Jefferies to know whether Jefferies’ statements were true. I cannot determine on the pleadings whether the statements were true and whether Callaghan knew the statements were true. Therefore, at this juncture I cannot determine whether Callaghan had probable cause to bring the defamation action, and judgment on the pleadings was improper. I also disagree with the trial court finding probable cause because “[i]n light of the numerous written and oral statements made by Jefferies to countless individuals, it would be reasonable to believe that at least one of the statements gave rise to a valid claim.” Trial court opinion at 6. It is not reasonable to believe one has a valid claim merely because of the number of comments made. One must also believe that the law will allow recovery based on all of the facts in one’s knowledge.

I also do not find that the pleadings establish probable cause for Callaghan’s interference with contract and prospective contract claims. While these torts are separate from defamation, they are closely related. See Evans v. Philadelphia Newspapers, Inc., 411 Pa.Super. 244, 601 A.2d 330 (1991). In order to establish intentional interference with contractual relations “ ‘the actor must act (1) for the purpose of causing this specific type of harm to the plaintiff, (2) such act must be unprivileged, and (3) the harm must actually result.’ ” Collincini v. Honeywell, Inc., 411 Pa.Super. 166, 601 A.2d 292 (1991) (quoting Birl v. Philadelphia Electric Company, 402 Pa. 297, 300, 167 A.2d 472, 474 (1960)) (emphasis added), alloc. denied, 530 Pa. 651, 608 A.2d 27, cert. denied, — U.S. —, 113 S.Ct. 199, 121 L.Ed.2d 141 (1992). While caselaw has not thoroughly developed what constitutes justification, I feel confident in saying that the judicial and legislative privileges of defamation would constitute privilege in this context as well.

All but one of the admitted paragraphs of Callaghan’s complaint which the trial court, and thus the majority, relies on concern communications to the attorney general’s office and statements at a township board meeting. If the statements made had some relation to the proceedings then Jefferies was absolutely privileged to make them. See Jennings v. Cronin, 256 Pa.Super. 398, 389 A.2d 1183 (1978). The pleadings do not assert the board meeting’s purpose. One who knows a speaker was privileged to speak cannot reasonably believe he has a valid claim. Thus, I would not allow these paragraphs to overcome the presumption of a lack of probable cause.

Paragraph 7 is the only remaining admitted paragraph. Jefferies admitted to making statements in public on or about May 25, 1988, regarding code violations in Callaghan houses and specific problems that he had with Callaghan, and that these statements were quoted in the Allentown Free Press. This paragraph does not give enough information to determine whether or not Jefferies was privileged to speak. I do not find that this admission alone overcomes the presumption and establishes probable cause to bring an intentional interference with contractual relations suit. Thus, judgment on the pleadings was also improper with regard to the interference with contractual relations claims. If, after hearing evidence at trial, the judge determines that Callaghan had probable cause, then he may direct a verdict in favor of Callaghan. On the other hand, the judge may determine that this case is one where the existence of probable cause is a mixed question of law and fact and will have to submit the issue to the jury with proper instructions. See Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 488 A.2d 1117 (1985).

For the foregoing reasons, I would reverse the judgment on the pleadings.

      . The United States Supreme Court in Hepps, in a 5-4 decision, held that a media defendant no longer has the burden of proving truth; plaintiff has the burden of proving falsity. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), rev’g, 506 Pa. 304, 485 A.2d 374 (1984). The Court limited its holding to media defendants, declining to decide what standards would apply in a case with a non-media defendant. Justice Brennan, however, filed a concurring opinion in which Justice Blackmun joined noting that the First Amendment does not allow a distinction between media and non-media defendants. Hepps, supra, 475 U.S. at 780, 106 S.Ct. at 1566, 89 L.Ed.2d at 795 (Brennan, J., concurring). Thus, it appears that non-media defendants still bear the burden of proving truth. See, e.g., Pelagatti v. Cohen, 370 Pa.Super. 422, 536 A.2d 1337 (1987) (truth is an absolute defense), alloc. denied, 519 Pa. 667, 548 A.2d 256 (1988). Regardless of who bears the burden of proof, the Pennsylvania Supreme Court has classified falsity as an element of the cause of action. Hepps, 506 Pa. at 312, 485 A.2d at 379 n. 2.


author: PER CURIAM: BECK, Judge,

text:
    635 A.2d 1100
    COMMONWEALTH of Pennsylvania, Appellant v. Wendell McMILLIAN.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1993.
    Filed Dec. 16, 1993.
    Dissenting Opinion Dec. 27, 1993.
    Dennis C. McAndrews, Asst. Dist. Atty., Media, for Com., appellant.
    Clinton L. Johnson, Chester, for appellee (submitted).
    Before ROWLEY, President Judge, and McEWEN, CIRILLO, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   PER CURIAM:

Appeal Quashed. Motion Granted.

BECK, J., filed a dissenting opinion which ROWLEY, President Judge joined.

DEL SOLE, J., concurred in the result.

BECK, Judge,

dissenting:

The Commonwealth appeals an order dismissing the criminal charges against appellee. The Commonwealth asserts that the trial judge acted improperly in the following ways: 1) engaging in an ex-parte communication with the complaining witness (who happened to be his former client), 2) insisting that the prosecution proceed to trial even though the matter was listed for pre-trial conference, and 3) declaring appellant “not guilty” without affording the Commonwealth an opportunity to try the case.

The Commonwealth charged appellee with two separate burglaries for allegedly breaking into his employer’s restaurant and stealing cases of food. In order to prove the charges, the Commonwealth planned to rely on the testimony of the employer who made the complaint.

The majority, in an unpublished memorandum Judgment Order, finds that the Commonwealth has waived the issues and therefore affirms the order which discharged appellee. I disagree and must dissent from my colleagues’ conclusion that the waiver doctrine prevents our review of this matter. In my opinion, the severity of the allegations, and the support therefor in the record, require that we engage in appellate review.

In this case, the Commonwealth was. put to “trial” without its primary witness. It is significant that the prosecutor specifically explained to the court that he had not subpoenaed the witness to appear because he did not expect to go to trial. This was understandable; the trial court record includes a Criminal Notice instructing appellee to return to court with counsel for a pre-trial conference on the day in question. In order to show the prosecutor’s attempts to challenge the actions of the trial court, as well as provide a factual background for the issues in this case, a primary portion of the transcript is reproduced below:

Deputy District Attorney: Your Honor, the next thing I would bring to the court's attention is Commonwealth v. Wendell McMillian. Mr. McMillian is here. I do not see Mr. Johnson [defense counsel].
The Court: Isn’t this the Nate Ellis matter?
Deputy District Attorney: Yes, sir.
The Court: Bring it up. It’s a nolle pros, isn’t it?
Deputy District Attorney: No, sir. No, sir, it is not.
The Court: It is not?
Deputy District Attorney: No, sir. The District Attorney has determined this defendant guilty of AED [sic], and we are not agreeable to nolle pros it, sir.
The Court: The witness, whom you know, is personally known to me, having been a former officer of this Court. If I’m interrupting, I want to apologize to you respectfully. It’s not my intention to interfere with whatever you all want to talk about, [pause] Let me finish. And Mr. Ellis called me personally to tell me that this man used to work for him. He had a bad day, broke in, and did some damage, repaid him back in full, and he doesn’t want to prosecute. So it’s not a case for ARD, either. So if he refuses it, we call it to trial. We call it for trial and we don’t have a prosecuting witness.
Deputy District Attorney: Your Honor, we do not.
‡ ‡ $
Deputy District Attorney: I can tell the Court, Your Honor, that the prosecuting witness in this case, Mr. Nate Ellis, who is known to these Courts ...
The Court: Personally known to me.
Deputy District Attorney: ... has indicated to me that he does not desire to prosecute this matter. However, I have to say to this Court that initially he did initiate these charges against this man for burglary and theft, sir. I have not, at this juncture, asked him to be here for trial because I thought there was going to be another type of disposition. However, I will say to the Court that he has indicated to me a lack of desire to pursue the matter.
The Court: Well let the record show if the Superior Court is listening, Nate Ellis, who was a former client of mine, called me a half hour ago and told me that he was not going to prosecute this young man. Now, Commonwealth, are you ready to proceed to trial?
Deputy District Attorney: Your Honor, I had indicated to the Court I could call Mr. Ellis. I think the Court ...
The Court: Mr. Johnson, do you have a motion to make?
Defense Counsel: Your Honor, we would ask that the Court call this matter for trial. And we’ve executed the appropriate waiver of a jury trial. And we ask that the court approve it. The defendant does understand all of the rights that he gives up. And we would direct that the Commonwealth- call — we would direct you to ask that the Court direct the Commonwealth to call its first witness in the case.
The Court: We’ve done that.
Defense Counsel: Then the Commonwealth having no witnesses to call, we would — Defense rests. And we would ask that the Court give a verdict of not guilty as to all of the criminal informations filed in this matter against the defendant.
Deputy District Attorney: Your Honor, I can only repeat what I said before.
The Court: All right. So ordered.

Transcript (emphasis supplied).

It is clear that the trial judge made it difficult for the deputy district attorney to speak at all, let alone place a formal objection on the record. The dynamics of the courtroom cannot be ignored under this highly irregular set of facts. Indeed, our Supreme Court has recognized that the courtroom setting may present particular circumstances under which a party should be relieved of its duty to object formally to intemperate conduct by a trial judge. In Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985), the defense attorney failed to object to the trial judge’s actions in cross-examining witnesses. In addressing whether the issue was waived for failure to preserve it, the Court stated:

In the courtroom, the judge is the foremost authority, second to none and no governor of the judge’s conduct resides in the courtroom save the judge ... The duty therefore lies with the judge to insure that his conduct is “above reproach,” or, minimally, is not prejudicial. We therefore question the continued validity of the waiver doctrine as applied to improprieties of the trial judge for when the position of power and authority enjoyed by the judge is considered, the strict enforcement of the waiver doctrine becomes inadvisable.

Id. at 95, 494 A.2d at 1058 (citations omitted). See also Commonwealth v. Celijewski, 324 Pa.Super. 185, 471 A.2d 525 (1984) (counsel’s failure to object to trial judge’s alleged role as advocate during trial constituted waiver, yet merits of claim were considered and resolved). In light of Hammer, and after reviewing the record, I am confident that the circumstances of this case require that we consider its merits.

The issue then becomes whether jeopardy attached in the proceeding below. If it did, the trial court’s order of not guilty precludes retrial. I would find that under these unique circumstances, jeopardy did not attach. I begin by noting, as the majority does, that jeopardy attaches when a defendant is put to trial before the trier of facts. Commonwealth v. Rosario, 418 Pa.Super. 196, 613 A.2d 1244, 1247 (1992). However, that definition sheds no more light on this issue than does the definition provided by the United States Supreme Court i.e., that jeopardy attaches when the court begins to hear evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). Unfortunately, this is not a case that fits neatly into any technical definition created by the courts. What occurred here was not typical; research reveals no similar case.

The purpose underlying the double jeopardy clause is to prevent the state from getting more than one chance at convicting a defendant:

The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense ... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 566 A.2d 246, 249 (1989) (citing Serfass v. United States, 420 U.S. 377, 387-88, 95 S.Ct. 1055, 1061-62, 43 L.Ed.2d 265 (1975)).

In this ease the trial judge did not give the Commonwealth its one opportunity to try the case against appellee. The trial judge himself concedes that the verdict of not guilty was erroneous. I am not persuaded that simply because the words “not guilty” are uttered by a trial judge, an acquittal occurs.

Although the form of the judge’s action appeared to result in an adjudication of the matter, the substance of his action did not result in acquittal. Indeed, in Commonwealth v. Smalis, 331 Pa.Super. 307, 316, 480 A.2d 1046, 1050 (1984), rev’d on other grounds sub nom., Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), the Superior Court stated that “in determining whether action taken by the trial court has constituted an “acquittal” for double jeopardy purposes, the form of the judge’s action is not controlling.”

Commonwealth v. McDonough, 533 Pa. 283, 289, 621 A.2d 569, 573 (1993).

As an appellate court, we cannot lose sight of what actually occurred below. See McDonough, supra (judge’s ruling of “not guilty” was not the result of a prosecution but instead was the product of an administrative procedure designed to clear the docket); Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986) (mid-trial discharge of appellant did not constitute an acquittal notwithstanding empaneling of jury; trial court dismissed case when prosecution witness failed to appear).

Here the trial court prevented the Commonwealth from trying its case by attempting to force a “trial” to commence when none was scheduled and the Commonwealth was not prepared nor on notice to begin its case. Circumventing trial procedures, whether engineered by the parties, counsel or the judge, cannot be sustained. It can only be that there was no trial in this matter and, therefore, that jeopardy did not attach.

Finally, I express my concern over the judge’s potential conflict in proceeding with this case once he was contacted ex parte by his former client. The courts must firmly discourage such disregard for criminal trial procedures and the mandates of the Judicial Code. The transcript presents an unsettling scenario that should not be repeated in any courtroom in this Commonwealth.

I would vacate the order of the trial court, hold that double jeopardy principles are not implicated on these facts and remand for trial on the charges originally filed or other appropriate proceedings.

ROWLEY, President Judge joins this dissent.


author: HOFFMAN, Judge:

text:
    635 A.2d 1103
    COMMONWEALTH of Pennsylvania, Appellant, v. Dwayne SWANN.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1993.
    Filed Jan. 14, 1994.

      Robin Godfrey, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Jonathan Krinick, Philadelphia, for appellee.
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the December 15, 1992 order, setting aside appellee’s conviction for homicide by vehicle. The Commonwealth raises one issue for our review:

Did the trial court err in arresting judgment based on its conclusion that the jury’s acquittal of defendant for involuntary manslaughter was inconsistent with its guilty verdict for homicide by vehicle.

Commonwealth’s Brief at 4. For the reasons set forth below, we reverse.

On April 7, 1991, appellee, Dwayne Swann, was involved in an automobile accident. The record shows that appellee was speeding, tailgating and swerving as he drove on the inner drive of Roosevelt Boulevard in Northeast Philadelphia. As appellee attempted to change lanes, he lost control of his car and the car flew across a ten-foot-wide median, striking a 1978 Mustang. The impact caused the driver of the Mustang, Karen Simmons, to be thrown from her vehicle. She was pronounced dead at the scene.

On July 22, 1992, appellee was found guilty of homicide by vehicle, but not guilty of involuntary manslaughter. On December 15, 1992, post-verdict motions were heard and appellee’s Motion for Arrest of Judgment was granted. The trial court reasoned that an acquittal on the charge of involuntary manslaughter precluded a guilty verdict on the offense of homicide by vehicle. This timely appeal followed.

The Commonwealth argues that the trial court erroneously concluded that as a result of the inconsistent verdicts rendered by the jury, the court was required to arrest judgment on the charge of homicide by vehicle. We agree.

Consistency in verdicts in criminal cases is not necessary. Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975). This Court has stated, “When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, the court looks upon [the] acquittal as no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” Commonwealth v. Lloyd, 376 Pa.Super. 188, 191, 545 A.2d 890, 892 (1988), appeal denied, 522 Pa. 602, 562 A.2d 825 (1989) (quoting Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980) (citations omitted)) (jury’s acquittal of appellant of theft charge and conviction of robbery charge did not entitle appellant to any relief). Thus, this Court will not disturb guilty verdicts on the basis of apparent inconsistencies as long as there is evidence to support the verdict. Commonwealth v. Boyles, 407 Pa.Super. 343, 595 A.2d 1180 (1991), appeal denied, 531 Pa. 651, 613 A.2d 556 (1992).

In evaluating the sufficiency of the evidence the Court must determine:

whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond reasonable doubt.

Commonwealth v. Lloyd, 376 Pa.Super. at 192, 545 A.2d at 892 (1988) (quoting Commonwealth v. Jackson, 506 Pa. 469, 472473, 485 A.2d 1102, 1103 (1984)). The Motor Vehicle Code provides:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic ... is guilty of homicide by vehicle, a misdemeanor or the first degree, when the violation is the cause of death.

75 Pa.C.S. § 3732. Our Supreme Court, however, has interpreted this statute to require a finding of recklessness or

criminal negligence. See Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987).

Notwithstanding our Supreme Court’s interpretation of the statute, we find that in the present case the elements of homicide by vehicle have been sufficiently established. The evidence demonstrated that on April 7, 1993, appellee drove his car on Roosevelt Boulevard in a reckless fashion and violated several sections of the Motor Vehicle Code including: 75 Pa.C.S. § 3301 (driving on right side of roadway); § 3309(1) (driving within a single lane; driver shall not move from a lane of traffic until he has first ascertained that the movement can be made with safety); § 3310 (following another vehicle too closely); § 3361 (driving vehicle at safe speed); and § 3714 (careless driving). These violations led to the death of Karen Simmons.

Accordingly, we reverse the trial court’s order arresting judgment and remand for sentencing. Jurisdiction is relinquished.

Reversed and remanded. Jurisdiction is relinquished.

      . 75 Pa.C.S. 3732.

      . 18 Pa.C.S. 2504.


author: KELLY, Judge:

text:
    636 A.2d 164
    COMMONWEALTH of Pennsylvania, v. Donald JURY. Appeal of Richard M. HEBERLING, Appellant. (Two Cases) COMMONWEALTH of Pennsylvania, v. Donald CUTLER.
    Superior Court of Pennsylvania.
    Argued March 24, 1993.
    Filed Nov. 9, 1993.

      Richard M. Heberling, pro se.
    Fredric J. Ammerman, Dist. Atty., Clearfield, for Com., appellee.
    Before BECK, KELLY, and HOFFMAN, JJ.
   KELLY, Judge:

This appeal asks us to determine whether the district attorney applied the proper standard in assessing and disapproving appellant’s, Richard M. Heberling’s, private criminal complaints and whether the trial court properly found that the district attorney’s handling of this matter was free from any impermissible conflict of interest. Appellant’s private criminal complaints alleged a host of criminal offenses against two police officers in connection with their testimony for the Commonwealth against appellant’s wife, Mrs. Heberling, before a jury that convicted her on charges of resisting arrest. After a careful review of the pertinent law as applied to the facts herein, we affirm the disapproval of appellant’s private criminal complaints and agree that the district attorney’s disposition of the matter was free from any impermissible conflict of interest.

We preface our reasoning with this summary of the relevant facts and procedural history. On December 7, 1990, Mrs. Heberling went to trial before a jury on the charge of resisting arrest. Trooper Jury filed the charge against Mrs. Heberling and testified at trial. Police Chief Cutler also testified for the Commonwealth at the trial, concerning Mrs. Heberling’s conduct on February 22, 1990 which gave rise to the criminal charge of resisting arrest. The jury found Mrs. Heberling guilty as charged.

The relevant facts from Mrs. Heberling’s arrest, trial and conviction, relative to the instant proceedings, are as follows. Trooper Jury pulled Mrs. Heberling’s vehicle over to the side of the road on July 19, 1988. Trooper Jury proceeded to give Mrs. Heberling a citation for failing to have a valid registration for the 1985 Dodge van she was driving. Mrs. Heberling subsequently failed to pay the fines and costs associated with the July 19, 1988 citation. Due to this omission, the Office of the District Justice William Daisher issued a warrant for Mrs. Heberling’s arrest. Trooper Jury stopped Mrs. Heberling on February 22, 1990 for the purpose of serving the warrant. Chief Cutler assisted Trooper Jury at the scene. On February 26, 1990, Trooper Jury filed a charge of resisting arrest against Mrs. Heberling for her flight on February 22, 1990, alleging that Mrs. Heberling left the scene in a manner creating a substantial risk of bodily injury to Trooper Jury.

On March 29, 1990, the district justice heard testimony by Trooper Jury and defense witnesses at a summary hearing. After reviewing the evidence, the district justice found probable cause to require Mrs. Heberling to stand trial on the charge of resisting arrest. On December 7,1990, Mrs. Heberling was tried before a jury, which, after hearing all the evidence presented by the Commonwealth and the defense, returned a guilty verdict.

Subsequent to Mrs. Heberling’s trial and conviction, appellant, Mrs. Heberling’s spouse, filed private criminal complaints against Trooper Jury and Chief Cutler, alleging misconduct on the part of the officers as related to Mrs. Heberling’s trial and conviction. The allegations of misconduct included “Perjury, False Swearing, Unsworn Falsification to Authorities, False Reports to Law Enforcement, Obstructing Administration of Law, Official Oppression, Tampering with Public Records and Criminal Conspiracy.” Appellant’s Brief at vi. Specifically, the alleged misconduct centered around disputed testimony concerning the orientation of the two police cruisers and Mrs. Heberling’s vehicle relative to the roadway when Officer Jury attempted to serve the arrest warrant on February 22, 1990. At trial, these two police officers testified that Mrs. Heberling’s vehicle was perpendicular to and facing away from the roadway, so that she had to make a sharp u-turn in order to reenter the street. Mrs. Heberling’s testimony, echoed by one eyewitness for the defense, asserted that her vehicle was parallel to the roadway. Based on this discrepancy in the testimony of the parties’ witnesses, appellant attempted to file his private criminal complaint against the officers.

By letter dated March 4, 1992, the district attorney disapproved appellant’s private complaints. The district attorney’s disapproval was supported by the credibility and fact determinations made at the jury trial, coupled with the assessment that the Commonwealth could not, with the evidence asserted by appellant, prove its case beyond a reasonable doubt.

Following disapproval by the district attorney, appellant filed his complaints with the trial court seeking a review of the district attorney’s disapproval of the complaints pursuant to Pa.R.Crim.P. 133(b)(2). Appellant also sought a court determination of whether the district attorney’s involvement in the approval process represented an impermissible conflict of interest. After the judges of the Court of Common Pleas of Clearfield County disqualified themselves from the review process, the Honorable Keith B. Quigley of Perry County specially presided over the review process and concluded that there was no gross abuse of discretion or conflict of interest present in the district attorney’s disapproval. Accordingly, the disapproval of appellant’s private criminal complaints was affirmed. This timely appeal followed.

The proper procedure for seeking approval of private criminal complaints is set forth in Pa.R.Crim.P. 133 as follows:

(a) When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove without unreasonable delay.
(b) If the attorney for the Commonwealth
(1) Approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
(2) Disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval;
(3) Does not approve or disapprove within a reasonable period of time, the affiant may file the complaint on a separate form with the issuing authority, noting thereon that a complaint is pending before an attorney for the Commonwealth. The issuing authority shall determine whether a reasonable period has elapsed, and when appropriate, shall defer action to allow the attorney for the Commonwealth an additional period of time to respond.

In determining whether to approve or disapprove a private criminal complaint, the district attorney may rely on either a legal assessment of the complaint, or wholly discretionary matters of policy. Commonwealth v. Benz 523 Pa. 203, 565 A.2d 764 (1989). When the district attorney rests the disapproval of a private criminal complaint on wholly discretionary matters of policy, this Court will not disturb that determination, absent a gross abuse of discretion. Commonwealth v. Pritchard, 408 Pa.Super. 221, 596 A.2d 827 (1991). See also In re Wood, 333 Pa.Super. 597, 602, 482 A.2d 1033, 1036 (1984) (quoting Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980)) (prosecutorial discretion may depend on policy matters wholly apart from the existence or non-existence of probable cause; courts are wary of supervising exercise of such discretion). When the district attorney bases a dismissal solely on a lack of evidence, however, this Court will apply a de novo standard of review because such a decision is not entitled to the same deference afforded a policy decision not to prosecute, even where a prima facie case exists. Commonwealth v. Benz, supra, 523 Pa. at 208 n. 4, 565 A.2d at 767 n. 4. The special deference extended to a policy decision not to prosecute arises from the deference accorded the discretionary use of executive powers conferred in the district attorney. Id. The power to approve or disapprove private criminal complaints granted under Pa.R.Crim.P. 133 to the district attorney is consistent with the authority which that office regularly exercises in deciding to initiate or discontinue prosecutions. In re Petition of Piscanio, 235 Pa.Super. 490, 494, 344 A.2d 658, 660 (1975). The requirements for the issuance of process pursuant to a criminal complaint are provided in Pa.R.Crim.P. 134.

(1) The complaint has been properly completed and executed;
(2) There is probable cause for the issuance of process, in the form of an affidavit; and
(3) When prior submission to an attorney for the Commonwealth is required, that an attorney has approved the complaint.

Appellant’s first assertion, that the district attorney applied the wrong standard when reviewing appellant’s private criminal complaints, warrants consideration. The district attorney stated that the appellant’s complaints fell short of establishing sufficient evidence to prove his allegations beyond a reasonable doubt. Appellant maintains, however, that the district attorney must view the evidence provided according to a “probable cause” standard.

If the Commonwealth intends to proceed with prosecution, it must produce evidence enough to establish at least a prima facie case that a crime has been committed and that the accused is probably the perpetrator. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983); Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975); Commonwealth v. Harvin, 346 Pa.Super. 575, 500 A.2d 98 (1985). However, the ultimate determination of the sufficiency of that evidence is a trial court judgment at which time the trier of fact reviews the record facts to ascertain whether and to what extent the prosecution has satisfied its “beyond a reasonable doubt” burden of persuasion. Commonwealth v. Shaver, 501 Pa. 167, 460 A.2d 742 (1983). The pretrial process, on the contrary, requires the application of what is known in criminal law as the probable cause standard or a prima facie standard. See Pa.R.Crim.P. 134; Commonwealth v. Harvin, supra (Commonwealth has burden to establish a prima facie case at the preliminary hearing but need not prove accused’s guilt beyond a reasonable doubt in order to bind accused over for prosecution).

Instantly, the district attorney of Clearfield County stated in his Disapproval Statement pursuant to Pa.R.Crim.P. 133: “Accordingly, the allegations by the affiant cannot be proven beyond a reasonable doubt and are hereby disapproved pursuant to Rule 133.” In so stating, the district attorney applied an inappropriate legal standard to this aspect of the pretrial process. This standard as applied would require private complainants to prove their cases to the district attorney, where, in fact, the complaint need only aver evidence sufficient to mount a prima, facie case. Accordingly, we conclude that the proper standard to be applied when reviewing private criminal complaints is whether the complaint establishes a prima facie case on all the elements of the charge contained in the complaint. Moreover, because the district attorney exercised a legal judgment, we are required to review the appropriateness of his decision. See Commonwealth v. Benz, supra, 523 Pa. at 208-09, 565 A.2d at 767-68 (where the Commonwealth decides not to prosecute for lack of evidence sufficient to establish a prima facie case, the court is required to review the appropriateness of that decision, and such a review of that legal judgment is not an intrusion upon prosecutorial discretion).

Appellant asserts that the proposed testimony of a second eyewitness would corroborate the trial testimony for the defense that Mrs. Heberling’s vehicle was indeed parallel to the roadway during the February 20, 1990 incident. The thrust of appellant’s complaint is that the police officer’s testimony at Mrs. Heberling’s trial was inconsistent with the defense witnesses’ testimony. The proposed testimony of a second eyewitness, concludes appellant, establishes a prima facie case against the police officers on each of the eight offenses charged in his private criminal complaint. We disagree for the following reasons.

First, the trier of fact is to resolve any existing inconsistencies and can believe all, part, or none of the testimony presented. Commonwealth v. Curry, 318 Pa.Super. 490, 465 A.2d 660 (1983). The jury already heard the substance of appellant’s proposed witness’ testimony. Having already weighed the evidence appellant asserts in support of his private complaint, the jury reached the conclusion that Mrs. Heberling resisted an arrest. Because the weight accorded the evidence by a jury is not a matter of mathematical precision, the fact that one more person can say that Mrs. Heberling’s van was parallel to the roadway does not necessarily invalidate the jury’s findings of credibility.

Second, a collateral attack on a fact finder’s credibility determination is not warranted unless the additional evidence asserted (1) was not discoverable at the time of the credibility determination, (2) is not merely for cumulative or impeachment purposes, and (3) the new evidence compels a different outcome. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991), certiorari denied, - U.S. -, 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992). Analogously, the proposed testimony herein was available to the defense at Mrs. Heberling’s trial but was not utilized. Moreover, the proposed testimony asserts nothing that the jury did not already hear. Finally, the proposed testimony does not necessarily compel a different result, nor does the evidence in the appellant’s complaint raise even an inference that the jury’s verdict was pure speculation. Therefore, we conclude that, based on the proposed testimony which is merely cumulative of that testimony heard at trial, appellant has not established even a prima facie case on the charges alleged against the police officers. See Commonwealth v. Muroski, 352 Pa.Super. 15, 506 A.2d 1312 (1986) (en banc) (a private complainant’s duty is to provide the district attorney with enough facts to enable an informed decision on whether to commence criminal action). Appellant’s allegations of collusion, conspiracy and false swearing require more factual support than what he has offered by way of legal conclusions. Accordingly, we agree with the district attorney’s final decision to disapprove appellant’s private criminal complaints and hold that the Court of Common Pleas correctly affirmed that disapproval.

Appellant’s final contention rests in the assertion that the handling of this matter by the district attorney of Clear-field County constituted an impermissible conflict of interest. His complaints, avers appellant, should not have been reviewed by the district attorney or any member of his staff for two reasons. First, the district attorney’s involvement in the criminal prosecution giving rise to the filing of appellant’s private criminal complaints should bar involvement in the review process of those complaints. Second, another member of the district attorney’s office appeared for the Commonwealth at an evidentiary hearing associated with the appeal of the original criminal case against Mrs. Heberling. Appellant concludes that the district attorney’s office is, therefore, involved in the representation of parties adverse to appellant and is not in a proper position to approve or disapprove charges arising from the original criminal case.

The Commonwealth is the party plaintiff in a criminal prosecution. Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982). The district attorney’s function is to represent the Commonwealth in these proceedings. Id. at 302-03, 450 A.2d at 692. It is in the capacity as the Commonwealth’s attorney that the district attorney fulfills the obligation to investigate and prosecute crime. In re Petition of Piscanio, supra, 235 Pa.Super. at 494, 344 A.2d at 660. The district attorney executes his duty of evaluating complaints to determine whether and when to prosecute, continue or discontinue a case, in the name of the Commonwealth, not the victim. Id.; Commonwealth v. Malloy, supra, 304 Pa.Super. at 301, 450 A.2d at 693.

Instantly, appellant relies on Rules 1.7 and 1.9 of the ABA Model Rules of Professional Conduct which in pertinent part forbid the representation of adverse client interests. The impermissible conflict of interest which appellant asserts arises from appellant’s misperception that the district attorney represented the police officers in the original criminal case against Mrs. Heberling involving the charge of resisting arrest. The police officers, however, were witnesses for the prosecution of Mrs. Heberling, not clients of the district attorney. As such, the district attorney cannot be said to have engaged in the representation of adverse client interests under either Rule 1.7 or 1.9. Had appellant presented sufficient facts to demonstrate that the police officers’ testimony was false on a material matter and that the officers knew or believed that their statements were false when made under oath, the Commonwealth’s attorney could reasonably proceed with an action against the officers without giving rise to an impermissible conflict of interest. So too, may the Commonwealth’s attorney refuse to proceed against these officers where the appellant proffered only cumulative evidence which shed no light on the matter alleged.

The district attorney and the trial court have a responsibility to prevent the misuse of prosecutorial and judicial resources. In re Wood, supra, 333 Pa.Super. at 603, 482 A.2d at 1037 (quoting Commonwealth v. Eisemann, supra, 276 Pa.Super. at 546-47, 419 A.2d at 593). Where, as here, a trial determination on the credibility of the witnesses has already occurred, appellant cannot be permitted to rely on proffered testimony, which was available at that trial, to engage in a futile attempt to disturb those credibility findings.

In this Commonwealth, the district attorney enjoys wide latitude when deciding whether to disapprove a private criminal complaint, and may do so for policy reasons wholly apart from a preliminary assessment of the evidence. Even though a prima facie case may exist on the face of the complaint, the district attorney is not bound to prosecute, and may, in a proper exercise of discretion, still disapprove the complaint wholly for policy reasons. Such a policy decision is subject only to an abuse of discretion standard by the reviewing court. See Commonwealth v. Benz, supra; Commonwealth v. Pritchard, supra. Where, as here, the district attorney’s disapproval is based on a legal assessment of the evidence contained in the complaint, the appropriate legal standard for assessing that evidence is whether enough facts are alleged in the complaint to establish a prima facie case on the charges contained therein and not whether the facts set forth can be proven beyond a reasonable, doubt. We conclude that the disapproval of appellant’s complaints by the district attorney and the Court of Common Pleas was correct to the extent that the facts alleged in the complaint did not establish a prima facie case. Finally, as the district attorney represents the Commonwealth in criminal prosecutions, no impermissible conflict of interest arose as a result of the district attorney’s exercise of his duty to review the criminal complaints in this case. Accordingly, we affirm the disapproval of appellant’s private criminal complaints.

Orders affirmed.

      . 18 Pa.C.S.A. § 5104
      Resisting arrest or other law enforcement
      A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

      . See In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984) (holding that a private person has standing to appeal where the district attorney disapproves the private criminal complaint and that decision is reviewed by a Court of Common Pleas, pursuant to Pa.R.Crim.P. 133(B)(3)(h), adversely to the private complainant); accord Commonwealth v. Muroski, 352 Pa.Super. 15, 506 A.2d 1312 (1986) (en banc). Compare Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982) (holding that the victim of an alleged crime lacks the authority and power to appeal, without the consent of the district attorney, a judicial determination dismissing a complaint for failure of the prosecution to establish at trial a prima facie case).

      . Probable cause is defined as:
      Reasonable cause; having more evidence for than against. A reasonable ground for belief in the existence of facts warranting the proceedings complained of. An apparent state of facts found to exist upon reasonable inquiry (that is, such inquiry as the given case renders convenient and proper), which would induce a reasonable intelligent and prudent man to believe, in a criminal case, that the accused person had committed the crime charged, or in a civil case, that a cause of action existed.

      Black's Law Dictionary, 5th Ed. (1979).

      . "A prima facie case consists of sufficient evidence in the type of case to get plaintiff past a motion for directed verdict in a jury case or motion to dismiss in a nonjuiy case.” Black’s Law Dictionary, 4th Ed. (1979).

      . The term “burden of proof” encompasses two separate burdens; the burden of producing satisfactory evidence of a particular fact in issue; and (2) the burden of persuading the trier of fact that the fact alleged is indeed true. McCormick on Evidence § 336 at 425-26 (4th Ed. 1992). In a criminal trial, the prosecution has the burden of persuading the fact finder of the criminal defendant’s guilt beyond a reasonable doubt. Id. § 341 at 445.

      . The affiant requested that a warrant of arrest be issued for the police officers on the following charges:
      18 Pa.C.S.A. § 4902 (Perjury)
      (a) Offense defined. — A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true....
      18 Pa.C.S.A. § 4903 (False swearing)
      (a) False swearing in official matters. — A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true is.guilty of a misdemeanor of the second degree if:
      (1) the falsification occurs in an official proceeding____
      18 Pa.C.S.A. § 4904 (Unsworn falsification to authorities)
      (a) In general. — A person commits a misdemeanor of the second degree if, with intent to mislead a public servant in performing his official function, he:
      (1) makes any written false statement which he does not believe to be true; ____
      18 Pa.C.S.A. § 4906 (False reports to law enforcement authorities)
      (a) Falsely incriminating another. — A person who knowingly gives false information to any law enforcement officer with intent to implicate another commits a misdemeanor of the second degree.
      (b) Fictitious reports. — A person commits a misdemeanor of the third degree if he:
      (1) reports to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or----18 Pa.C.S.A. § 5101 (Obstructing administration of law ...)
      A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.
      18 Pa.C.S.A. § 5301 (Official oppression)
      A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he:
      (1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; ....
      18 Pa.C.S.A. § 903 (Criminal conspiracy)
      (a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
      (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
      (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime....
      (6 Counts.)