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Commonwealth v. Matis2/24/1998
George E. Matis (Matis) appeals from an Order of the Superior Court that reversed the Order of the Court of Common Pleas of McKean County (trial court) dismissing criminal charges against him pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure. We affirm the Order of the Superior Court.
FACTS
The criminal complaint alleges that on January 26, 1992, Matis operated his automobile while he was intoxicated in Wetmore Township, McKean County, Pennsylvania. Additionally, the complaint states that Matis drove his car into oncoming traffic and struck an approaching vehicle, killing his passenger and a passenger in the other automobile. Blood tests later revealed that Matis' blood alcohol content was .23%.
On February 12, 1992, the Commonwealth filed a complaint against Matis charging him with two counts of homicide by vehicle while under the influence of alcohol, homicide by vehicle, driving while under the influence of alcohol, reckless driving, and meeting a vehicle travelling in the opposite direction. The court continued the trial four times at the request of the Commonwealth so they could secure "relation back" evidence to establish Matis' blood alcohol level at the time of the accident pursuant to Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modafare, 529 Pa. 101, 601 A.2d 1233 (1992).
The certified record does not fully explain all of the reasons why the trial court granted these continuances because the trial court did not prepare a report of the postponements as mandated by Rule 1100(G), but it appears that the Commonwealth repeatedly postponed Matis' trial because its expert forensic toxicologist was unavailable. On December 22, 1992, the trial court issued an Order that set the trial date for January 27, 1993. Voir dire commenced on January 4, 1993. On that date, the jury was selected, but not sworn, because the trial was scheduled to commence three and one-half weeks later.
When the Commonwealth filed another motion to continue the trial on January 21, 1993, the defense objected, and the trial court scheduled a hearing on the Commonwealth's motion. At that hearing on January 25, 1993, the Commonwealth informed the trial court that it had been unable to subpoena Kelly Anderson (Anderson), a manager and bartender at a tavern that Matis allegedly visited on the night of the accident. The assistant district attorney informed the court that Anderson was unavailable because she was on a camping vacation and somewhere en route from Arizona to McKean County. The Commonwealth attempted to subpoena Anderson sixteen days before the trial. When it was unable to serve her, a detective from the district attorney's office contacted her father, sister, and an employee at the bar. The employee, Barry McGill, testified that Anderson telephoned the bar two or three times while she was vacationing and that he told her to contact the district attorney's office. McGill also said that Anderson told him that she would call the district attorney, but she never did.
The assistant district attorney did not know when Anderson would return, but nevertheless requested a continuance because Anderson's testimony was essential as it would lay a factual foundation for the subsequent testimony of the expert who would relate back the Appellant's blood alcohol level and testify that Matis was intoxicated at the time of the accident.
Although Anderson lived in McKean County continuously since the accident, the district attorney's office was unable to contact her. It concluded that her testimony was necessary based on interview notes of a private investigator whom lawyers had hired concerning a relat
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