filed: March 8, 1985.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
JOHN H. TAYLOR, APPELLANT
NO. 00183 Pittsburgh, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. 8006979 of 1982
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Cavanaugh, Popovich and Hester, JJ.
[ 340 Pa. Super. Page 89]
This is an appeal from the judgment of sentence entered on February 9, 1982, in the Court of Common Pleas of Allegheny County by the Honorable Samuel Strauss. Appellant was sentenced to a term of imprisonment of not less than two years or more than four years for violating the Uniform Firearms Act, 18 Pa.C.S. § 6101 et seq. Appellant avers on appeal 1) that the trial court erred in denying appellant's pre-trial motion to dismiss pursuant to Pa.R.Crim.P. 1100, and 2) that the trial court erred in denying appellant's request to suppress alleged statements made by him to the police at the time of his arrest because the Commonwealth failed to provide him the mandatory discovery required under Pa.R.Crim.P. 305(B)(1)(b). We affirm.
Appellant first contends that the trial court erred in denying his pre-trial motion to dismiss and bases this contention on the Commonwealth's alleged failure to exercise due diligence in bringing him to trial within 180 days as required by Pa.R.Crim.P. 1100. The pertinent facts relating to this contention are not in dispute.
[ 340 Pa. Super. Page 90]
Appellant was arrested on August 29, 1980, and charged with violating the Uniform Firearms Act, 18 Pa.C.S. § 6101 et seq. Appellant was subsequently incarcerated in a federal penitentiary in Morgantown, West Virginia, on an unrelated charge.*fn1 Under Rule 1100(a)(2),*fn2 the trial was to commence within 180 days from August 29, 1980, the date on which the complaint against the appellant was filed, or February 25, 1981. Trial was listed to commence on January 29, 1981, well within the 180 day limit. However, the trial did not commence on that day because appellant had escaped from the federal correctional facility in Morgantown, West Virginia on December 25, 1980. At the time of his escape, appellant knew that trial was listed for January 29, 1981. He then fled to Canada where he was apprehended on January 15, 1981. It was not until February 13, 1981, however, that he was returned to federal custody at Buffalo, New York. He was not returned to Pennsylvania or to the federal institution in West Virginia where the Commonwealth previously knew it had access to him. On February 6, 1981, the Commonwealth filed a petition to extend the time to commence trial pursuant to Rule 1100(c). On February 11, 1981, defense counsel filed an answer opposing the grant of this petition. The order was granted by the Honorable Ronald E. Dauer on February 19, 1981. This order stated that appellant "shall be tried not later than 45 days after [his] return to Pennsylvania."
[ 340 Pa. Super. Page 91]
On June 23, 1981, the Commonwealth filed a Writ of Habeas Corpus ad prosequendum requesting the extradition of appellant from Buffalo, New York, to stand trial in Pennsylvania. Pre-trial proceedings commenced on July 29, 1981, and trial commenced the following day before the Honorable Samuel Strauss, clearly within the 45 days permitted by the order of February 19, 1981. Appellant was found guilty, and this appeal followed.
Appellant argues that the Commonwealth owed a duty to exercise due diligence to bring him to trial but that instead it waited several months from the time the extension order was granted to do so*fn3 even though it was within the Commonwealth's power to procure his return prior to that time. Appellant contends that the Commonwealth's duty to exercise due diligence should be implied or read into Judge Dauer's order of February 19, 1981. The Commonwealth, on the other hand, argues that it had no duty to exercise due diligence because the order did not explicitly require it.
Under Rule 1100, the Commonwealth has 180 days in which to bring the defendant to trial. However, Rule 1100 is tolled under the following circumstances:
Rule 1100. Prompt Trial
(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
(2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
[ 340 Pa. Super. Page 92]
(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court's inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
(4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court's business, and the record shall so indicate.
(d) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant's arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of the defendant or his attorney.
Rule 1100(c)(3) and (d)(1) expressly require that the Commonwealth exercise due diligence to bring the defendant to trial in order to toll the Rule.*fn4 Although Rule 1100(d)(3)(i)
[ 340 Pa. Super. Page 93]
(the unavailability of the defendant or his attorney) does not explicitly require due diligence,*fn5 it has been held that a showing of due diligence by the Commonwealth is necessary before a defendant will be labelled "unavailable."*fn6 We shall first examine whether the order in question was properly granted.
The Commonwealth is under no duty "to file a petition for an extension of time when the delay is caused by the unavailability of the defendant", but rather, the extension is "automatic". Commonwealth v. Wright, 260 Pa. Super. 341, 394 A.2d 582 (1978); see also Commonwealth v. Richbourgh, 246 Pa. Super. 300, 369 A.2d 1331 (1977); Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Williams, 284 Pa. Super. 125, 425 A.2d 451 (1981). But c.f. Commonwealth v. Minoske, 295 Pa. Super. 192, 441 A.2d 414 (1982) (a petition to extend time was not deemed improper though appellant was said to be "unavailable").
In the instant case, it may be said that appellant was unavailable when the Commonwealth petitioned for the extension. He had been missing from the correctional facility in West Virginia for over a month, and had not as yet been turned over to federal custody. There were also charges pending against him in Canada and West Virginia which would militate against his availability to stand trial here at the Commonwealth's convenience. The Commonwealth's petition averred appellant's unavailability and Judge Dauer apparently accepted the veracity of this averment when he granted the order.
We do not fault the Commonwealth or Judge Dauer for erring on the side of caution, however, in respectively seeking and granting the extension order in question. At
[ 340 Pa. Super. Page 94]
the time the Commonwealth petitioned for the extension, appellant had already been apprehended in Canada and there may well have been a question as to whether he would be "available" in the near future. A defendant's right to a speedy trial should never be dispensed with lightly, and so, rather than dismiss the order as "improperly granted", we believe that the Commonwealth exhibited laudable caution in petitioning for the extension in this instance.
Having thus concluded that the order was not improperly granted, we further conclude that the duty to exercise due diligence should not be implied or read into it. We do not, however, base this decision solely on an explicit reading of the words of the order itself. While it was permissible for the Commonwealth to rely on an explicit reading of the order and to thus conclude that it owed no duty to exercise due diligence, our holding would be the same even if the order had never been granted. The underlying reason that the Commonwealth owed no duty to exercise due diligence was that the appellant in this case committed a willful act in dereliction of a serious societal duty after having been subjected to process of court. A sound reading of the cases decided under Rule 1100 compels this conclusion and our explanation follows.
In analyzing whether an appellant's speedy trial rights have been violated for failure to bring him to trial within 180 days, we must seek guidance in authority beyond the nearest desk calendar. One case of recent vintage is Commonwealth v. Crowley, 502 Pa. 393, 402, 466 A.2d 1009, 1014 (1983), where Justice Hutchinson, writing for the majority, stated: "The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice."*fn7
[ 340 Pa. Super. Page 95]
Turning to the instant case, the appellant was incarcerated in a federal correctional facility, knew that society ordained that he stay there, knew the date of his trial listing, but escaped nonetheless. His failure to appear for trial on the date set is strongly analogous to the situation where a defendant is released on bail and is duly notified of the date of his arraignment, but fails to appear for the arraignment. In both cases the defendants have committed willful acts in dereliction of a serious societal duty after having been subjected to the process of the courts of this Commonwealth. There exists a consistent and thoughtful line of cases dealing with the bail situation, just described. We believe that the rationale applied in those cases should apply with at least equal force to the instant case.
A distinguished member of this line of cases is Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). We find its rationale extremely helpful in deciding the case before us and believe that the words of its author, Justice (now Chief Justice) Nix, are relevant to the issue confronting us.
[ 340 Pa. Super. Page 96]
Where a defendant undertakes to accept the status of bail during the pendency of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action, upon receipt of reasonable notice. To focus solely upon the conduct of the Commonwealth not only ignores the defendant's dereliction of an obligation, but also places him in the position of possibly benefitting from his own wrongdoing. Where the delay results from the defendant's willful failure to appear at the appointed Page 96} time it is obviously not the type of harm envisioned in the protections sought to be afforded by the speedy trial guarantee. To the contrary, the delay is directly attributable to the fact that he was in a bail status, and not in custody, and that he deliberately abused that prerogative . . . In applying the due diligence requirement as to service of a warrant of arrest we recognized that it was the obligation of the police to notify the accused of the issuance of the warrant. Commonwealth v. Mitchell, [472 Pa. 553, 372 A.2d 826] supra. An accused, unaware that process has been issued against him, has no obligation to make himself available. Employing a due diligence criteria in such a situation provides the basis for attributing to the accused any delay that results in his apprehension. Where, however, the accused is aware of his obligation to appear and fails to do so, he may legitimately be held accountable for any resultant delay. Restated, where a warrant of arrest is involved the requirement of due diligence in the service of process is required before blame can be assigned to the suspect. Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive 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 did not measure up to a court's standard of due diligence. Such a result is obviously absurd.
We therefore hold that a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case the Commonwealth is entitled to an exclusion of this period under section (d)(1) without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence.
[ 340 Pa. Super. Page 97]
unaware that process has been issued against him, has no obligation to make himself available. Employing a due diligence criteria in such a situation provides the basis for attributing to the accused any delay that results in his apprehension." Commonwealth v. Cohen, 481 Pa. at 355, 392 A.2d at 1330.
Due diligence is not needed pursuant to a warrantless arrest but is needed where an arrest is sought pursuant to a warrant. In the latter situation, "disruption of employment, curtailment of associations, subjection to public obloquy, and creation of anxieties" are important concerns favoring the exercise of due diligence. Commonwealth v. Mitchell, 472 Pa. 553, 561, 372 A.2d 826, 830 (1977). These are concerns which should matter little in the instant case where the appellant voluntarily absented himself from prison after having been subjected to process of court.
Once the accused is subject to process of court, a willful act in dereliction of duty is a forfeiture and serves to negate any duty the Commonwealth has to exercise due diligence in bringing him to trial. "While Rule 1100 is a shield to protect defendants from undue procrastination in the commencement of proceedings against them, we refuse to overextend the protections afforded by that Rule in a manner that would enable it to be used as a sword to allow the accused to benefit from his own misconduct." Commonwealth v. Brightwell, 486 Pa. 401, 408, 406 A.2d 503, 506 (1979). See also Commonwealth v. Guldin, 502 Pa. 58, 463 A.2d 1011 (1983).
That the willfulness of a defendant's actions should matter in an analysis of a defendant's speedy trial rights is given articulation within Rule 1100 itself. Under Rule 1100, 1) where a defendant waives the Rule (see Rule 1100(d)(2)) and, 2) where continuances are granted at the request of the defense (see Rule 1100(d)(3)(ii)), the Commonwealth
[ 340 Pa. Super. Page 99]
is not required to exercise due diligence in order to toll the Rule.*fn8
Numerous cases concern a circumstance which bears a facial similarity to the instant case: the situation where the accused is incarcerated in a different jurisdiction and the Commonwealth is inactive in seeking his return for trial. Mere incarceration in another jurisdiction does not excuse the Commonwealth from exercising due diligence in bringing a defendant to trial. Rule 1100 will be tolled when the defendant is "unavailable" according to 1100(d)(3)(i), but a defendant will not be classified as "unavailable" absent a showing of due diligence by the Commonwealth. See Commonwealth v. Boerner, 281 Pa. Super. 505, 422 A.2d 583 (1980). Commonwealth v. Alexander, 318 Pa. Super. 344, 464 A.2d 1376 (1983); Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Davis, 261 Pa. Super. 204,
[ 340 Pa. Super. Page 100395]
A.2d 1388 (1978); Commonwealth v. McCafferty, 242 Pa. Super. 218, 363 A.2d 1239 (1976). In these cases, the defendants committed no willful act in dereliction of a serious societal duty after having been subjected to the process of court. The Commonwealth simply allowed the defendants to remain in the custody of another jurisdiction while it stood idly by. The 180 day "clock" ticked away nevertheless.
Similarly, there are opinions which deal with the situation of a defendant being placed in another jurisdiction's custody after first having been incarcerated in this Commonwealth. Commonwealth v. Kovacs, 250 Pa. Super. 66, 378 A.2d 455 (1977); Commonwealth v. Clark, 248 Pa. Super. 184, 374 A.2d 1380 (1977). Once again, the taint of a volitional act in dereliction of a duty is missing and, as in the previous situation, Rule 1100 will not be tolled.
Despite appellant's escape, he would have us hold that the Commonwealth violated its duty of due diligence. The adoption of this position would be tantamount to tossing the authority we have cited onto a scrapheap of judicial indifference. To hold that the appellant in the instant case is entitled to the same standard of due diligence that we would afford an appellant who accepts his confinement without flight or one who diligently appears for his arraignment is contrary to reason and authority.
Even if the trial record illuminated the facts as to whether or not the Commonwealth exercised due diligence, we would not consider the record as to this issue because no such duty was owed. Commonwealth v. Minoske, 295 Pa. Super. 192, 441 A.2d 414 (1982).
We can only assume that because trial was listed for January 29th, it would have commenced on that date had appellant not escaped. Appellant was ultimately apprehended, it is true. But the apprehension was not accomplished by instrumentalities of the Commonwealth. Appellant's apprehension and subsequent imprisonment in New York were surely not volitional acts on his part, but they
[ 340 Pa. Super. Page 101]
It is evident from the record of the Rule 1100 hearing that the constitutional standard for a speedy trial has been met in this case, and we now decline to exercise a stopwatch approach to the definition of "due diligence". Therefore, we hold the court en banc acted incorrectly in separately metering each step in the pre-trial process against the due diligence standard. Rule 1100 provides an overall standard of 180 days, not separate standards for each step. Its due diligence exception should be measured against the whole not its separate parts.
Terfinko, 504 Pa. at 392, 474 A.2d at 279.*fn9
These opinions are representative of our Supreme Court's developing philosophy with respect to the interpretation of Rule 1100.
In one respect, Goodman is distinguishable from the instant case. In the instant case, the Commonwealth was granted an order extending the time to commence trial. This order allowed the Commonwealth to await the appellant's return to the Commonwealth before it was required to try him. No such order was present in Goodman. Notwithstanding this distinction, and in light of the other authority we cite here, we do not believe that Goodman dictates a result different from the one we now reach.*fn10
[ 340 Pa. Super. Page 103]
While we would hope that our law enforcement officials would engage every escaped convict in assiduous pursuit, we hardly think that society's interests would be well served by ordering the appellant's discharge in this case. In determining whether to confine or discharge an appellant under Rule 1100, we must refrain from using an atomic-precision clock lest we sacrifice justice in the process.
Mr. Taylor has had his day in court, and for the reasons stated above, we hold that his trial was commenced in a timely fashion and that his rights under Rule 1100 have not been violated.
Appellant also alleges that a new trial should be granted because the Commonwealth introduced an allegedly inculpatory statement against him without providing him mandatory discovery pursuant to Rule 305(B)(1)(b).*fn11
The allegedly inculpatory statement was made at the time of appellant's arrest. Appellant was leaning against a building. Near him was a parked car*fn12 with its engine idling. One of the arresting officers testified that upon his arrest, appellant indicated a desire to have the officer turn off the car's engine. The officer testified that the appellant said either "shut my car" (sic) or "I want to shut my car
[ 340 Pa. Super. Page 104]
off." This testimony conflicted with that of the appellant who claimed that he had said "shut the car off." The appellant now asserts that the Commonwealth's failure to provide the contents of the officer's testimony as part of mandatory discovery warrants the granting of a new trial.
It is appellant's contention that the car's impoundment and the issuance of a search warrant were apparently accomplished in the belief that the car belonged to the appellant. The search resulted in the finding of illegal firearms within the car.
We fail to see how a discrepancy between the words "my" and "the" could warrant the granting of a new trial in this case. Appellant was leaning against a building, perhaps ten feet from the vehicle in question. The engine was idling at the time. Upon being arrested, appellant expressed a desire to have the engine turned off. Under the circumstances, it matters not if appellant believed he had said "the" car even though the officer testified that the appellant had said "my" car. The inference that the car was his or was in his control was so overwhelming that we need delve no further into the murky recesses of this contention.
Under Rule 305E, it was within the trial court's discretion to admit the officer's statement even if the discovery Rule was violated.*fn13 Whatever inculpatory content may have been associated with the officer's statement, it was at most only minimally more harmful to appellant than the statement appellant testifies to having made.
For these reasons, we affirm the judgment of sentence.