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COMMONWEALTH PENNSYLVANIA v. ANTONIO COLON (07/29/83)

filed: July 29, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTONIO COLON, APPELLANT



No. 2727 Philadelphia 1980, APPEAL FROM THE JUDGMENT OF SENTENCE OF OCTOBER 27, 1980 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIV. CRIMINAL SECT. NOS. 1622-1623 DECEMBER TERM, 1977

COUNSEL

Louis Sherman, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Rowley and Cirillo, JJ. Spaeth, J., files a dissenting opinion.

Author: Cirillo

[ 317 Pa. Super. Page 416]

At 10:14 p.m. on April 10, 1977, Philadelphia Police responded to a silent alarm going off in a bar on North Second Street in Philadelphia. They found Antonio Colon and a man named Martinez hiding on the first-story roof of the bar near a place where the second-story wall of the bar had been broken in. The police found marked bills on Martinez which the owner of the bar later identified as money kept in the bar for use in the juke box. After a trial by stipulation on December 12, 1979, Judge Thomas A. White found Colon guilty of burglary and conspiracy. Colon's post-verdict motions were denied and he was sentenced to concurrent terms of three years' probation. Colon appeals, claiming that his right to a speedy trial was violated. Pa.R.Crim.P. 1100, 42 Pa.C.S.

-1-

At the outset, the Commonwealth urges us to quash Colon's appeal for failure to comply with the Rules of Appellate Procedure. Indeed, the brief prepared by appellant's counsel fails utterly to conform with the most basic rules governing brief-writing. Rule 2111(a), 42 Pa.C.S., provides:

General rule. The brief of the appellant . . . shall consist of the following matters, separately and distinctly entitled and in the following order:

(1) Statement of jurisdiction.

(2) Order or other determination in question.

(3) Statement of the questions involved.

(4) Statement of the case.

(5) Summary of argument.

(6) Argument for appellant.

(7) A short conclusion stating the precise relief sought.

(8) The opinions and pleadings specified in Subdivisions (b) and (c) of this rule.

[ 317 Pa. Super. Page 417]

Rules 2114 through 2119 describe in detail the required content of each of the matters listed in Rule 2111(a). Appellant has violated each and every one of these rules. His brief consists of two sections, one labelled "Question," the other "Index/History of the Case." The "Question" is not a question at all, but a strange admixture of argument and fact. The "History of the Case" is hardly distinguishable in content from the "Question." Both sections contain misstatements and confusions of fact. Had we not availed ourselves of the Commonwealth's brief and the record of the post-verdict motions hearing in the trial court, we would be unable to determine what appellant's Rule 1100 argument is. The defects in appellant's brief are substantial; we have not hesitated to quash appeals on the basis of similarly defective briefs. E.g., Commonwealth v. Taylor, 306 Pa. Super. 1, 451 A.2d 1360 (1982); Commonwealth v. Sanford, 299 Pa. Super. 64, 445 A.2d 149 (1982); Commonwealth v. Wyant, 254 Pa. Super. 464, 386 A.2d 43 (1978). See Pa.R.A.P. 2101, 42 Pa.C.S. However, appellant's Rule 1100 argument was diligently presented and preserved at every stage of the trial proceedings. By referring to the transcript of the post-verdict motions hearing, we can formulate precisely the issues appellant attempts to pursue on appeal: he seeks to challenge the validity of two extensions granted to the Commonwealth under Pa.R.Crim.P. 1100(c). It would be unjust to quash his appeal on the grounds of appellate counsel's derelictions, and, in our discretion, we will decide the case on the merits. See Commonwealth v. Jones, 256 Pa. Super. 366, 389 A.2d 1167 (1978).

The procedural history of this case is long and tortuous. After arresting appellant, the police on April 11, 1977, filed a complaint charging him with burglary, theft, and conspiracy. Therefore, the Commonwealth had until October 10, 1977, to bring him to trial. Pa.R.Crim.P. 1100(a)(2); 1 Pa.C.S. ยง 1908.*fn1 Obviously, the trial date of December

[ 317 Pa. Super. Page 41812]

, 1979, was far beyond the original Rule 1100 run date. The rule mandates that a defendant be discharged unless all periods of delay beyond the run date are accounted for either by an extension granted to the Commonwealth pursuant to Rule 1100(c), or by an exclusion of time under Rule 1100(d).*fn2 Commonwealth v. Williams, 299 Pa. Super. 226, 445 A.2d 537 (1982). The Commonwealth applied for its first extension in this case on August 1, 1978. Although the record is scanty on this point, it appears that appellant had made himself unavailable for much of the intervening time. At the hearing on the Commonwealth's first extension petition on April 11, 1979, the court excluded 607 days under Rule 1100(d). The court calculated an amended run

[ 317 Pa. Super. Page 419]

    date of June 6, 1979, and also granted an extension to that date. Eventually, appellant's case was scheduled to be tried on June 5, 1979. When the case was called that morning, however, neither appellant nor the complaining witness, each of whom had been duly notified of the trial date, was present in court. The court issued bench warrants. Appellant appeared late, and the warrant on him was withdrawn; the warrant on the complainant was executed, and he was brought in. However, by that time, appellant's case had been passed, and the court was unable to try him that day. On June 6, the Commonwealth again petitioned for an extension. At a hearing held on July 10, 1979, the court, pursuant to Rule 1100(c), granted the Commonwealth an extension to Monday, July 16, 1979. Up to this point, appellant challenges neither the propriety of the extensions granted to the Commonwealth nor the excludability of the 607 days for which the court found him unavailable.*fn3

Trial was rescheduled for July 12, 1979. This time appellant did not appear for trial. He was in prison and was not brought down to court. The next day, the Commonwealth petitioned for a third extension, alleging that it could not bring appellant to trial before the run date despite its due diligence. On August 2, 1979, the court found that the Commonwealth had exercised due diligence, and granted the Commonwealth a third extension to September 13, 1979. Appellant's first contention on appeal is that the Commonwealth was not entitled to the August 2 extension, and that consequently he should have been discharged.

A court may grant the Commonwealth an extension of time in which to commence trial if the Commonwealth

[ 317 Pa. Super. Page 420]

    cannot bring a defendant to trial within the prescribed period despite due diligence. Commonwealth v. Sharp, 287 Pa. Super. 314, 430 A.2d 302 (1981). The burden is on the Commonwealth to prove by a preponderance of the evidence that it has met the requirements of Rule 1100(c). Id. Where the Commonwealth, despite due diligence, cannot timely bring a defendant to trial because of judicial delay, the court properly may grant an extension. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). At the extension hearing of August 2, the court took judicial notice of the docket entry of July 12 indicating that appellant had not been brought down from prison. The Commonwealth's attorney argued that he had requested a forthwith bringdown that day upon learning of appellant's incarceration. The court noted that there was nothing about the Commonwealth's request in the docket, but treated the fact that appellant had not been brought down as "court delay." The court then found due diligence on the part of the Commonwealth and extended the run date to September 13. Appellant contends to the contrary, that the fact he was not brought down to court for his trial demonstrates a lack of due diligence by the Commonwealth, entitling him to discharge. We disagree with appellant's conclusion.

Implicit in the trial court's ruling that "judicial delay" accounted for appellant's absence on July 12 is a finding that officers of the court, not the Commonwealth, bore the responsibility for securing appellant's presence at trial. This point was hotly contested at the post-verdict motions hearing, but the trial court never explicitly resolved the question. However, on the basis of additional facts which came to light at the hearing, we conclude that appellant himself was responsible for his absence on July 12, and that the Commonwealth would have been entitled to exclude time under Rule 1100(d), regardless who is charged with bringing defendants down from prison in Philadelphia.

As of March 21, 1979, appellant had been free on bail. When he appeared, late, for trial on June 5 (and the bench warrant on him was withdrawn), his "probation officer"

[ 317 Pa. Super. Page 421]

    was in the courtroom. After failing to reach appellant's case, the court continued it to July 12. Appellant then was taken into custody on a "V.O.P. detainer." Neither the Commonwealth's nor the court's files on appellant reflected the fact that he had been arrested, and there is no indication anywhere in the record why a probation detainer was outstanding on him as of June 5. Obviously, though, appellant's arrest on the detainer had nothing to do with this case, for probation is a post-conviction, not a pre-trial, status. In any event, appellant remained in custody through July 12, his trial date.

As a condition of being admitted to bail, a person obligates himself to "appear before the issuing authority or court at all times required until full and final disposition of the case." Pa.R.Crim.P. 4013(a). When a defendant who is on bail and who has notice of a scheduled court proceeding in his case fails to appear in court at the appointed time, he has violated the conditions of bail, and the Commonwealth is entitled to count any resulting period of delay as excludable time under Rule 1100(d)(1). Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978); Commonwealth v. Bedsaul, 298 Pa. Super. 174, 444 A.2d 717 (1982). Furthermore, the delay is excludable even without a showing by the Commonwealth that it has exercised due diligence to locate a defendant. As the Court said in Cohen,

Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence is misplaced in a speedy trial analysis. To rule otherwise would permit a defendant who intentionally absented himself from a scheduled court hearing to have the charges against him dismissed if the Commonwealth's efforts to locate him ...


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