A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Nasir FAR, Appellee, et al, 2012 WL 2218742, 29 EAP 2011 (June 18, 2012). This was an appeal from the Judgment of the Superior Court entered on 4/28/10 at 1029 EDA 2008,  4 A.3d 180 (Pa.Super.2010), affirming an Order of the Court of Common Pleas, Philadelphia County, Criminal Division at CP–51–CR–0014461–2007. Justice McCAFFERY wrote the Opinion for a unanimous court.

Appellee was charged with possession with intent to deliver PCP which is a felony, and hence the case was commenced in the Court of Common Pleas. The Commonwealth later withdrew the PWID–PCP charge. Because all of the remaining charges were misdemeanors, the case was remanded to the Philadelphia Municipal Court. Trial was set for October 2, 2007, in Municipal Court; however, on October 1, 2007, the Commonwealth indicated that it would exercise its right, pursuant to Article I, Section 6 of the Pennsylvania Constitution, to a trial by jury. Because Municipal Court does not conduct jury trials, the Commonwealth petitioned to transfer the cases back to the Court of Common Pleas. A preliminary hearing was conducted and the Appellee was held for trial in the Court of Common Pleas.

Pursuant to Article I, Section 6 of the Pennsylvania Constitution, “in criminal cases, the Commonwealth shall have the same right to trial by jury as does the accused.” In 2007, in response to this 1998 constitutional amendment, the Supreme Court adopted the following rule, Pa.R.Crim.P. 1001(D), which sets forth the procedures to be followed when the Commonwealth seeks to transfer a case from Municipal Court to the Court of Common Pleas for a jury trial:

The attorney for the Commonwealth may file with the Municipal Court Clerk of Courts a written certification to exercise the Commonwealth’s right to a jury trial in a Municipal Court case. The attorney for the Commonwealth shall serve a copy of the certification on counsel for the defendant, or the defendant if unrepresented, and on the President Judge of Municipal Court. Upon receipt of the certification, the President Judge shall promptly schedule a preliminary hearing, and the case shall be conducted as provided in Rules 541, 542, and 543. When a case is held for court, the case shall remain in the Common Pleas Court through final disposition.

On February 21, 2008, the Appellee’s lawyer Guy Sciolla moved for dismissal of the charges based onPa.R.Crim.P. 1013(A)(4), which is the prompt trial rule governing cases that commence in the Court of Common Pleas but are subsequently transferred to Philadelphia Municipal Court. On March 6, 2008, the late Judge Tom Dempsey of the Court of Common Pleas conducted a hearing, wherein the Commonwealth countered that Pa.R.Crim.P. 600, the general prompt trial rule applicable to the Court of Common Pleas, and not Rule 1013(A)(4), applied to these cases. The court did not agree with the Commonwealth, but rather accepted the Appellee’s contention that Rule 1013(A)(4) controlled the time frame under which the Commonwealth was required to bring the Appellee to trial in the Court of Common Pleas. In addition, the court concluded that Rule 1013(A)(4)‘s time limits had been exceeded, and therefore the court dismissed all charges and discharged Appellees.

The Commonwealth appealed to the Superior Court, which affirmed in an unpublished opinion adopting the analysis of the Court of Common Pleas concerning this issue. The Commonwealth then filed a petition for allowance of appeal to the Supreme Court, which was granted. The sole issue on appeal was when a case that was transferred from the Philadelphia Court of Common Pleas to Philadelphia Municipal Court is later transferred back to the Court of Common Pleas, is the case governed by Pa.R.Crim .P. 600, the prompt trial rule applicable to the Court of Common Pleas, orPa.R.Crim.P. 1013, the prompt trial rule applicable to the Philadelphia Municipal Court?

This case was initiated in the Court of Common Pleas, transferred to Municipal Court when the sole felony charge was dismissed, and then transferred back to the Court of Common Pleas because the Commonwealth sought a trial by jury. Therefore, Rule 1013, which is applicable only to Municipal Court, does not apply here; rather, the relevant statewide rule, Rule 600, applies. Once the Appellee’s case was transferred back to the Court of Common Pleas, the case was no longer a proceeding in the Philadelphia Municipal Court. Because the case had again become a proceeding in the Court of Common Pleas, it was not encompassed by the scope of the MC rules. Accordingly, the Court reversed the Superior Court’s order, and remanded to the trial court for further proceedings.

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