Commonwealth v. Clark
Commonwealth v. Clark
Opinion of the Court
This is an appeal from judgments of sentence imposed on convictions of robbery, theft by unlawful taking, and conspiracy. Appellant has raised a substantial issue regarding deprivation of his right to a speedy trial, as delineated in Pa.R.Cr.P. 1100. Since on the record before us we are unable to resolve the issue, we remand for further proceedings.
The charges against appellant were based on an incident at a car wash and gas station on April 1, 1974. A criminal complaint was filed against appellant on the same day, and he was immediately arrested, later being released on bail. On May 27, 1975, 421 days after the complaint was filed, appellant was tried. Before trial he filed a petition requesting that the charges be dismissed because the Commonwealth had failed to bring him to trial within 270 days as required by Rule 1100(a)(1). After a hearing, the lower court denied the petition on the ground that “any delay in going to trial has been caused by the defendant Clark or his attorney, and, therefore, the Court found that he had not been denied his right to a speedy trial.” Opinion of the lower court at 4.
Appellant’s trial was originally set for November 12, 1974, well within the 270 day period.
The case was again listed for trial on March 31, 1975, but was not reached. It was listed again for April 1, but was not reached. On April 4 the court granted a continuance because appellant’s counsel was not present. On May 15 another continuance was granted because appellant’s counsel was not prepared. Appellant’s petition under Rule 1100(f) was heard and denied on May 27, and trial commenced the next day. At no time did the prosecution file a motion to extend the time for commencement of trial. Rule 1100(c).
It is true that even in the absence of an extension of time under Rule 1100(c), the period within which trial must be commenced will be extended by such period as may result from (1) the unavailability of the defendant or his attorney, or (2) any continuance in excess of thirty days granted at the request of the defendant or his attorney. Rule 1100(d). However, in this case, facts crucial to a determination of the proper period were ignored by the court below.
As has been mentioned, on November 12, 1974, the lower court declared appellant a “fugitive.” Clearly, a fugitive is “unavailable” as that word is used in Rule 1100(d)(1).
Assume, however, that further evidence warrants a finding that on November 12, 1974, appellant was “unavailable.” That will not be dispositive of appellant’s Rule 1100 claim, as the lower court apparently believed. It will rather be only the beginning of a proper inquiry.
Rule 1100(d)(1) only serves to extend the period during which trial must be commenced under section (a) of the rule. Commonwealth v. Wade, 240 Pa.Super. 454, 360 A.2d 752 (1976); Commonwealth v. Eller, 232 Pa.Super. 99, 332 A.2d 507 (1975). The total number of days for which a defendant is unavailable must be computed; that number is then added to the applicable period under 1100(a); the total
We therefore vacate the judgments of sentence and remand for proceedings consistent with this opinion.
. The 270th day after the complaint was filed was Dec. 27, 1974.
. Notes of Testimony of the May 27, 1975, hearing on appellant’s petition under Rule 1100 at 6.
. The Official Comment to Rule 1100(d)(1) states that “the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence.”
. See footnote 3, supra.
. In his dissenting opinion, Judge PRICE reasons that since the “Commonwealth” is a unitary concept encompassing all prosecuting officers, all knowledge of any one of those officers must be imputed to all. Such a presumption of omniscience on the part of the government is unreasonable; it would impute to an Assistant District Attorney at one end of a county immediate knowledge of an arrest occurring at the other end. To be sure, sooner or later, one would expect him to find out about it. When he should is the question the lower court should have addressed.
Dissenting Opinion
dissenting:
Appellant contends that he must be discharged because the Commonwealth failed to bring him to trial within 270 days from the date on which the Commonwealth filed a criminal complaint against him. See Pa.R.Crim.P. 1100(a)(1); 19 P.S. Appendix.
The Commonwealth rescheduled appellant’s trial for March 31, 1975, but the court did not reach his case on that day or the following day. On April 14, the court continued the case because appellant’s counsel was not present. On May 15, the lower court granted another continuance because appellant’s counsel was not prepared. On May 27, appellant filed a Rule 1100(f) petition seeking dismissal of the charges against him. The court held a hearing and denied appellant’s petition. On May 28, trial commenced before the lower court sitting without a jury; the court found appellant guilty of robbery, theft by unlawful taking and conspiracy. After denying appellant’s post-verdict mo
Appellant contends that the Commonwealth failed to bring him to trial on or before December 27, 1974, the 270th day after the filing of the complaint in the instant case. The Commonwealth responds that appellant’s unavailability on November 12, 1974, and for an unspecified period of time thereafter, automatically extended the period for commencement of trial. See Pa.R.Crim.P. 1100(d)(1). Specifically, the Commonwealth asserts that appellant’s unavailability resulted from his failure to inform prison authorities of the November 12 trial date.
Pa.R.Crim.P. 1100(d)(1) provides: “In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: . . . the unavailability of the defendant or his attorney.” The Comment to Rule 1100 elaborates upon the meaning of this subparagraph:
“For purposes of subparagraph (d)(1), in addition to any other circumstances precluding the availability of the defendant or his attorney, the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; or during which he contested extradition, or a responding jurisdiction delayed or refused to grant extradition; or during which the defendant was physically or mentally incompetent to proceed; or during which the defendant was absent under compulsory process requiring his appearance elsewhere in connection with other judicial proceedings.” I agree with the Majority that Pa.R.Crim.P. 1100(d)(1) requires that the
The Majority admits that it is unable to find, on the record before us, that the Commonwealth discharged its duty to exercise due diligence in ascertaining appellant’s whereabouts. (At p. 187) I submit that this concession is dispositive in this case. Because appellant was in a Delaware County prison, the Commonwealth bears the burden of explaining what efforts it made to locate appellant and to secure his presence at trial. Commonwealth v. McCafferty,
. Rule 1100(a)(1) provides: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.”
. The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S. § 3701.
. The Crimes Code, supra; 18 Pa.C.S. § 3921.
. The Crimes Code, supra; 18 Pa.C.S. § 3925.
. The Crimes Code, supra; 18 Pa.C.S. § 2701.
. The Crimes Code, supra; 18 Pa.C.S. § 903.
. The Commonwealth does not contend that appellant received any continuances in excess of thirty days, thus extending the period for commencement of trial beyond December 27, 1974. See Rule 1100(d)(2). Moreover, at no time did the Commonwealth seek to extend the time for commencement of trial by filing a petition pursuant to Rule 1100(c). Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).
. Normally, the Commonwealth must only demonstrate its due diligence when it seeks to secure an extension of time for the commencement of trial pursuant to Rule 1100(c). However, in some circumstances, the Commonwealth must show that it acted with due diligence in order to justify an exclusion of time from the applicable period for commencement of trial pursuant to Rule 1100(d). For example, the Comment to Rule 1100 makes it clear that a defendant who has not yet been arrested will not be deemed “unavailable” unless the Commonwealth shows that it was unable to determine his whereabouts despite due diligence. See also Commonwealth v. Flores, 247 Pa.Super. 140, 371 A.2d 1366 (1977). By analogy, a District Attorney for a particular county must exercise due diligence in finding a defendant and bringing him to trial when that defendant is incarcerated in the same county.
Dissenting Opinion
dissenting:
The majority holds that it is “unable to find, on the record before us, that the Commonwealth had discharged its duty to exercise due diligence to ascertain appellant’s whereabouts.” (p. 187) The majority therefore directs that the instant case be remanded to the court below for further evidentiary hearings. I believe that the majority opinion reflects a blatant disregard for logic and legal precedent.
A criminal complaint, charging various offenses, was lodged against the appellant on April 1, 1974. Under the mandate of Pa.R.Crim.P. 1100(a)(1),
Appellant’s trial was originally scheduled to begin on November 12, 1974. The appellant failed to appear in court on that date and was promptly declared a fugitive by the
The majority’s reasoning is spoiled by the Official Comment to Rule 1100, which notes, in part, that “the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence . .” Here, the evidence clearly shows that the appellant had not only been apprehended and imprisoned in Delaware County, but that he had also received notice that he was scheduled to be tried on November 12, 1974. The conclusion is inescapable that the prosecutorial forces of Delaware County knew the whereabouts of the appellant and could easily have secured his presence at trial. Since the record is clear that the Commonwealth did not exercise due diligence in securing the appellant’s presence at trial and that the mandatory period had expired when the appellant filed his motion to dismiss, I would reverse the judgment of sentence and discharge the appellant.
I must also note my disagreement with the majority on two other points. First, I believe the majority incorrectly equates the term “Commonwealth” solely with the prosecuting district attorney. In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), the Pennsylvania Supreme Court held that the “ ‘Commonwealth’ in the context of the Rule clearly refers to prosecutorial officers.” (emphasis added) Id. 469 Pa. at 16, 364 A.2d at 698. Thus, we have held that a
Further, I do not agree that the appellant may be blamed for the delay in this case because he failed to inform his counsel, the warden, or the prosecuting district attorney that he was in prison. An accused is not required to bring himself to trial. E. g., Commonwealth v. Adams, 237 Pa.Super. 452, 352 A.2d 97 (1975). The prosecutorial forces of Delaware County knew that the appellant was incarcerated in their prison. The majority, nevertheless, suggests that the appellant had culpably concealed himself in “some crevice of the criminal justice system.” (p. 188) There is nothing in the record, however, to indicate that the appellant attempted to conceal his true identity or that the authorities were unaware of his identity. Unlike the majority, I refuse to characterize the appellant as “hiding-out” during his period of incarceration. Although the appellant may not have desired to be tried on the instant charges, his whereabouts were known by prosecutorial officers who could easily have arranged the appellant’s presence at trial.
I would reverse the judgment of sentence and discharge the appellant.
. Pa.R.Crim.P. 1100(a)(1) provides that: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.”
. Pa.R.Crim.P. 1100(d)(1) provides that: “In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant or his attorney.”
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Gerald CLARK, Appellant
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- 14 cases
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- Published