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Commonwealth v. Boczkowski3/23/2004
County Jail to release appellant to North Carolina authorities for trial there on the charges arising from the killing of Elaine Boczkowski. The Commonwealth's action in this regard was unilateral; it never sought court modification of the stayed extradition order to authorize an immediate transfer of appellant. In accordance with DDA Conrad's directive, appellant was delivered to North Carolina authorities on October 27, 1995. On November 1, 1996, following a capital trial, appellant was convicted of the murder of Elaine Boczkowski in North Carolina and sentenced to life imprisonment. Six days later, on November 7, 1996, DDA Conrad filed a notice pursuant to Pa.R.Crim.P. 352 (since renumbered Rule 801) of the Commonwealth's intention to seek the death penalty in the case sub judice, listing as the single aggravating circumstance that appellant had been convicted of another murder committed before the offense at issue. 42 Pa.C.S. § 9711(d)(11).
On March 26, 1999, following his unsuccessful attempt to avoid extradition from North Carolina, appellant filed a "Motion to Quash Aggravating Circumstance and Decertify Capital Case" in the court below. A hearing was held on April 4, 1999, following which Judge Cercone denied relief.
Appellant argues that Judge Durkin's order staying extradition was a valid one that was never lifted, vacated or modified by any court. Therefore, the District Attorney's Office had no authority to act in contravention of that order and transfer appellant to North Carolina before the Pennsylvania charges were disposed. Had appellant not been unlawfully transferred to North Carolina, the factual basis for the single aggravating circumstance would not have existed and appellant would not have been eligible for the death penalty. Appellant argues that the Commonwealth should not be permitted to benefit from its blatant violation of the stayed extradition order, and he should be afforded some remedy. Appellant concludes that quashal of the single aggravating circumstance and a concomitant vacatur of the sentence of death is the appropriate remedy because it would restore the status quo ante, i.e., it would place the parties back in the positions which existed before the Commonwealth's violation of the court order.
The Commonwealth does not dispute that its action in transferring appellant to North Carolina led to the creation of the aggravating circumstance it later relied upon to certify that this had now become a capital prosecution. The Commonwealth nevertheless argues that it did not engage in a "willful or intentional" violation of the stayed extradition order. This is so because there was a change in circumstances -- appellant's having successfully moved to exclude certain Commonwealth evidence and the pendency of the Commonwealth's pre-trial appeal from the trial court's order excluding that evidence --which precipitated the Commonwealth's decision to transfer appellant to North Carolina. Because the Pennsylvania trial proceeding had "halted for a valid reason," the Commonwealth argues, its returning appellant to North Carolina was reasonable.
Furthermore, that action ensured that appellant's right to a speedy trial in North Carolina was not impeded by the appellate delay here.
The Commonwealth further argues that absent "purposeful abuse" by prosecution authorities, the aggravating circumstance and ensuing death penalty here should not be set aside. As proof that it was not deliberately seeking to arrange for the creation of the aggravating circumstance, the Commonwealth notes that it was the party that originally requested the stay of extradition, a fact indicating that it was fully prepared to try the matter as a non-capital case.
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