J-A25040-17

2018 PA Super 13

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JAMES DAVID WRIGHT

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3597 EDA 2016

Appeal from the Order October 19, 2016

In the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0005845-1990

BEFORE: OTT, J., STABILE, J., and STEVENS, P.J.E.

OPINION BY OTT, J.: FILED JANUARY 26, 2018

This is a Commonwealth appeal from the order entered October 19, 

2016, in the Delaware County Court of Common Pleas, which granted James 

David Wright’s motion to dismiss the charges filed against him in July of 1990, 

based on a violation of Pennsylvania Rule of Criminal Procedure 600. On 

appeal, the Commonwealth argues the trial court abused its discretion in 

granting Wright’s motion to dismiss. For the reasons below, we are compelled 

to reverse the order dismissing the charges, and remand for further 

proceedings.

The pertinent facts and procedural history are summarized by the trial 

court as follows:

On July 10, 1990, a Criminal Complaint was issued against 

[Wright] charging him with Driving Under the Influence, 75 

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 Former Justice specially assigned to the Superior Court.
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Pa.C.S. § 3731 and Reckless Driving, [formerly,] 75 Pa.C.S. §

3714. On September 18, 1990, a Preliminary Hearing was 

conducted and [Wright] was held for court on all charges. He was 

arraigned on October 18, 1990 at which time he signed a notice 

to appear for a return with counsel hearing before the Honorable 

R. Barclay Surrick on November 13, 1990 as well as a Pretrial 

Conference on November 19, 1990. [Wright] failed to appear on 

November 13, 1990 and a bench warrant was issued by Judge 

Surrick. On November 19, 1990, Judge Surrick rescinded the 

bench warrant after [Wright] appeared before him. [Wright] was 

advised to return to court on November 26, 1990 and signed a 

notice to appear for that date. On November 26, 1990, when 

[Wright] failed to appear, Judge Surrick issued another bench 

warrant for his arrest.

In the intervening 26 years, [Wright] was arrested and 

incarcerated multiple times in various jurisdictions and resided at 

the same address for at least the first nine (9) of those intervening 

years. Sometime in the fall of 2016, [Wright] received a mailing 

from the Sheriff’s office indicating that a bench warrant existed 

for his arrest and that he should turn himself in. He turned himself 

in on October 3, 2016, the bench warrant was lifted and a pretrial 

conference was scheduled before the undersigned for October 17,

2016. On October 11, 2016, [Wright] filed an Omnibus Pretrial 

Motion alleging that his rights under Rule 600 of the Pennsylvania 

Rules of Criminal Procedure were violated and that the charges 

should be dismissed, and that the breathalyzer test results should 

be suppressed as a result of failure to comply with the appropriate 

regulations pertaining to breath testing.

On October 19, 2016, a hearing was held before this Court 

on [Wright’s] motion. Initially, the Commonwealth requested a 

continuance due to the unavailability of the now retired arresting 

police officer. However, as a result of discussions between the 

court and both attorneys, it was stipulated that [Wright] signed a 

notice to appear on November 26, 1990. The Commonwealth was 

satisfied with that Stipulation. The hearing therefore continued 

with [Wright’s] testimony and argument. At no point in time did 

the Commonwealth present any testimony, evidence or argument 

as to the issue of the breath test results as was their burden at 

this suppression hearing.

At the conclusion of the hearing on [Wright’s] Omnibus 

Pretrial Motion,

1 which took place on October 19, 2016, the court 

granted [Wright’s] Motion to Dismiss based on a violation of 
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Pennsylvania Rule of Criminal Procedure 600. On October 21, 

2016, the Commonwealth filed a motion seeking reconsideration 

of that order which was subsequently denied by the court on 

October 25, 2016. 

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1 The court inadvertently entered an Order suppressing the 

blood test results; however, a hearing was never held on 

this issue.

Trial Court Opinion, 4/26/2017, at 1-3. This timely appeal followed.1

The sole issue raised by the Commonwealth on appeal is that the trial 

court abused its discretion in granting Wright’s motion to dismiss the charges 

when Wright admitted he had notice of the November 26, 1990, court 

proceeding, but willfully failed to appear. See Commonwealth’s Brief at 10.

Our standard of review of an order granting a Rule 600 motion is abuse 

of discretion. Commonwealth v. Baird, 975 A.2d 1113, 1118 (Pa. 2009). 

“The proper application of discretion requires adherence to the law, and we 

exercise plenary review of legal questions.” Id. (internal citation omitted). 

Moreover, when considering an order granting a motion to dismiss based upon 

Pennsylvania’s speedy trial rule, we must bear in mind the following:

Pennsylvania Rule of Criminal Procedure 600 was designed “to 

protect a defendant’s speedy trial rights, as well as society’s right 

to effective prosecution of criminal cases.” Commonwealth v. 

Thompson, 136 A.3d 178, 182 (Pa. Super. 2016) (quotation 

omitted). The Rule mandates, inter alia, that a defendant must 

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1 On November 11, 2016, the trial court ordered the Commonwealth to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). After requesting and receiving an extension of time, the 

Commonwealth filed a concise statement on December 16, 2016.
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be tried on criminal charges no later than 365 days after the 

criminal complaint is filed. Pa.R.Crim.P. 600(A)(1, 3).

This straightforward calculation is known as the mechanical 

run date. See, e.g., [Commonwealth v.] Ramos, 936 

A.2d [1097] 1102 [ (Pa.Super.2007) ]. However, those 

periods of delay caused by a defendant are excluded from 

the computation of the length of time of any pretrial 

incarceration. Pa.R.Crim.P. 600(C). Following these 

exclusions, if any, we arrive at an adjusted run date by 

extending the mechanical run date to account for these 

exclusions. See, e.g., Ramos, 936 A.2d at 1102. Any 

other delay that occurs, despite the Commonwealth’s due 

diligence, is deemed excusable and results in further 

adjustments to the effective run date. Pa.R.Crim.P. 

600(G); see also Ramos, 936 A.2d at 1102 (explaining 

that “[e]xcusable delay is a legal construct that takes into 

account delays which occur as a result of circumstances 

beyond the Commonwealth’s control and despite its due 

diligence”) (internal punctuation and citation omitted).

Thompson, supra, 136 A.3d 178, 182 (emphasis in original).

Commonwealth v. Dixon, 140 A.3d 718, 722 (Pa. Super. 2016), appeal 

denied, 159 A.3d 938 (Pa. 2016). 

In the present case, there is no dispute the mechanical run date for 

Wright’s trial expired in 1991. Rather, the question presented on appeal is 

whether the ensuing 25 years, between the time Wright failed to appear in 

November of 1990 and when he surrendered with counsel in October of 2016, 

is excludable time attributed solely to Wright or whether the Commonwealth 

had the burden to demonstrate it exercised due diligence in bringing him to 

trial. Relying on Baird, supra, the Commonwealth insists it “had no 

requirement to seek out [Wright during that 25-year period] where all the 

excludable time resulted from [Wright’s] failure to appear.” Commonwealth’s 

Brief at 14. We agree.
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In Baird, supra, defense counsel signed a notice of the arraignment 

date, but neither the defendant, nor counsel, appeared on that day, and a 

bench warrant was issued. It was not until more than a year later, when the 

defendant was stopped for a motor vehicle violation in another county, that 

he was arrested on the outstanding warrant. See Baird, supra, 975 A.2d at 

1114-1115. Moreover, during part of that time, the defendant was

incarcerated in another county, and cooperating with a joint county task force. 

See id. The trial court subsequently granted the defendant’s motion to 

dismiss the charges based on a violation of Rule 600.

On appeal, a divided en banc Superior Court reversed, concluding that 

the defendant’s failure to appear, when counsel received proper notice, 

excused the Commonwealth from having to demonstrate due diligience. See 

id. at 1115-1116. The Pennsylvania Supreme Court agreed, explaining:

[T]he general rule is that, where a period of delay is caused by 

the defendant’s willful failure to appear at a court proceeding of 

which he has notice, exclusion is warranted. Further, if a 

defendant is deemed to have had reasonable notice of court 

proceedings, but fails to appear, the Commonwealth’s due 

diligence in attempting to locate him need not be assessed.

Id. at 1118 (emphasis supplied and citations omitted). 

Nevertheless, the Baird Court noted the “more discrete question” on 

appeal was whether notice to counsel of a court date could be “fairly 

attributed” as notice to the defendant. Id. It then adopted the general rule, 

set forth in federal speedy trial cases, which attributed notice to counsel as 

notice to a defendant. The rule also recognized limited “exceptional 
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circumstances,” such as a “breakdown in [a] public defender system[.]” Id.

at 1119. Because the defendant in Baird did not provide notice of his 

whereabouts to the bail authority, clerk of courts, or the district attorney, as 

required by Pa.R.Crim.P. 526,2the Baird Court found the defendant willfully 

failed to appear, and “the burden did not shift to the Commonwealth to 

establish its own due diligence.” Id. at 1119. See also Commonwealth v. 

Vesel, 751 A.2d 676, 680 (Pa. Super. 2000) (under predecessor to Rule 600, 

time between August 1991 hearing, at which defendant failed to appear 

despite reasonable notice, and his subsequent arrest on unrelated charges in 

1999, was excludable time; although defendant claimed Commonwealth knew 

his address the whole time, appellate court found “the Commonwealth owes 

no duty of due diligence when an appellant fails to appear at a scheduled court 

proceeding.”), appeal denied, 760 A.2d 854 (Pa. 2000).

In the present case, Wright admitted during the Rule 600 hearing that

he had reasonable notice of the November 26, 1990, trial date. See N.T., 

10/1/2016, at 13. He further claimed he had hired an attorney, who told him 

he did not need to appear, and that the attorney would appear for him. See 

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2 Rule 526 provides, in relevant part, that a defendant who is released on bail, 

must, inter alia, “appear at all times required until full and final disposition of 

the case[,]” and “ give written notice to the bail authority, the clerk of courts, 

the district attorney, and the court bail agency or other designated court bail 

officer, of any change of address within 48 hours of the date of the change[.]” 

Pa.R.Crim. P. 526(A)(1), (3).
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id. at 14. Wright stated he “was under the impression it was resolved.”3 Id.

Despite Wright’s blatant acknowledgement that he willfully failed to 

appear for the court proceeding, the trial court found the facts of this case 

presented the “exceptional circumstances envisioned” by the Baird Court. 

Trial Court Opinion, 4/26/2017, at 8. The court emphasized Wright was “never 

represented by counsel of record,” and would be “hindered in mounting a 

defense” to a 25-year-old DUI charge. Id. Indeed, the trial court focused on 

the fact the Commonwealth took no action to locate Wright for 25 years, when 

“[a] minimum investigation would have disclosed his whereabouts.” Id. at 

12. 

However, we find the trial court’s reliance on the “exceptional 

circumstances” language in Baird is misplaced. The quotation comes from 

the Court’s discussion of notice to counsel, where the Court stated: “We hold 

that absent exceptional circumstances not present here, notice to defense 

counsel constitutes reasonable notice for the purpose of determining a 

defendant’s unavailability under Rule 600.” Baird, supra, 975 A.2d at 1119 

(emphasis supplied). It appears the Court did not “envision” these 

“exceptional circumstances” applying to situations where, as here, a 

defendant willfully fails to appear at a proceeding of which he has reasonable 

notice. Rather, as noted above, the law clearly states that once a defendant 

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3 The trial court questioned Wright’s credibility on this claim, stating, “I don’t 

know how much weight I give his testimony that he believed it was 

resolved[.]” N.T., 10/19/2016, at 15.
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is provided with notice of a court hearing, and he willfully fails to appear, the 

Commonwealth has no burden to demonstrate due diligence. See Baird, 

supra. Accordingly, because the record clearly demonstrates Wright had 

reasonable notice of the trial date and willfully failed to appear, we conclude 

the trial court erred in requiring the Commonwealth to demonstrate its due 

diligence in bringing Wright to trial.

The trial court also emphasized the language in Commonwealth v. 

Cohen, 392 A.2d 1327 (Pa. 1978), in which the Supreme Court held 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 such proceeding until 

he is subsequently apprehended or until he voluntarily surrenders[.]” Trial 

Court Opinion, 4/26/2017, at 9 (emphasis in original), quoting Cohen, supra, 

392 A.2d at 1331. The court reasoned that because Wright had been arrested 

in three other cases during the 25-year-period, he was “subsequently

apprehended” under Cohen. The trial court further noted “[t]he 

Commonwealth was, again, thereby on notice of [Wright’s] whereabouts, but 

did not lodge a detainer or proceed with [his] case sub judice.” Trial Court 

Opinion, 4/26/2017, at 9. 

Again, we conclude the trial court erred in shifting the burden to the 

Commonwealth to demonstrate due diligence. Neither the Cohen decision, 

nor any cases we have uncovered, interpret the language “subsequently 

apprehended” to mean when a defendant is arrested for a different crime in a 

different jurisdiction. Rather, the implication of the statement is the Rule 600 
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clock begins to run again when the defendant is “subsequently apprehended” 

for the charges at issue. Indeed, the Cohen Court explained: 

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 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.

Id. at 1330. Consequently, we conclude Wright’s subsequent arrests in other 

jurisdictions during the time the present charges were pending, did not restart

the Rule 600 clock. Although we appreciate the trial court’s concern that 

Wright’s “ability to mount a defense to a DUI charge that is 25 years old has 

been seriously thwarted[,]”4 we must emphasize that the delay was caused 

solely by his own deliberate actions.5

Accordingly, because we find the trial court erred in shifting the burden 

of proof to the Commonwealth to demonstrate its due diligence in bringing 

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4 Trial Court Opinion, 4/26/2017, at 13.

5 We note, too, the delay may prejudice the Commonwealth in prosecuting 

the case, as well.
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Wright to trial, we are compelled to reverse the order granting Wright’s motion 

to dismiss, and remand the case for further proceedings.6

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/26/18

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6 We note that the trial court candidly admitted it mistakenly granted Wright’s 

motion to suppress the breath test. See Trial Court Opinion, 4/26/2017, at 

14. Accordingly, the motion to suppress remains unresolved upon remand.