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2018 PA Super 13

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

JAMES DAVID WRIGHT : : : : : : : : : 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 Crim inal 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.J

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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 Hon orable 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 On November 19, 1990, Judge Surrick rescinded the bench warrant after [Wright] appeared before him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] receive d 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 under signed 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 fai lure 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 a rresting 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 therefor e 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 h earing 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 ofJ

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Pennsylvania Rule of Criminal Procedure 600. On October 21, 2016, the C ommonwealth filed a motion s eeki ng reconsideration of that order which was subsequently denied by the court on October 25, 2016.

__________ 1 The court inadvertently entered an Order suppressing the blood test results; however, a hearing was never held on this issue. Trial Court Op inion, 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 Novembe r 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 applic ation of discretion requ ires adherence to the law, and we exercise plenary review of legal questions. ” Id. (internal citation omitted). Moreover, w hen consider ing 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 d esigned “to protect a defendant’ s speedy t rial rights, as well as society’ s right to effective prosecution of criminal cases.” Commonwealth v. Thompson , 136 A.3d 178, 182 (Pa. Su per. 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.J

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be tried on criminal charges no later than 365 days after the criminal complaint is f iled. Pa.R.Crim.P. 600(A)(1, 3). This straightforward calculation is known as the mec hanical 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 C ommonwealth’ 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 circum stances 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 ensui ng 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 br inging 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
11 1 4

- 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, wh en counsel received proper notice, excused the Commonwealth from having to demonstrate due diligience. See
id . at 1115

- 1116. T he Pennsylvania Supreme Court agreed, explaining : [T] he general rule is that, where a period of d elay 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 atte mpting to locate him need not be assessed

. Id. at 1118 (emphasis s upplied 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 n otice 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 de fendant. The rule also recognized limited “exceptionalJ

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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, 2 the Bair d 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 , 75 1 A.2d 676 , 680 (Pa. Super. 2000) ( under predecessor to Rule 600, time between Aug ust 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 “th e 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 th e 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 o f the case[,]” and “ give written notice to the bail authority, the cle rk of courts, the district attorney, and the court bail agency or other designated court bail officer, of any change of address within 48 h ours of the date of the change[.]” Pa.R.Crim. P. 526(A)(1), (3).J

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id. at 14. Wright stated he “was under the impression it w as resolved.” 3 Id.
D espite 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 Opi nion, 4/26/2017, at 8. The court emphasized Wright was “never represented by counsel of record,” and would be “hindered in mounting a
defens e” 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 mispl aced. 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
defenda nt’s unavailability under Rule 600.” Baird , supra , 975 A.2d at 1119 (emphasis supplied). It appears t he Court did not “envision” these

“ exceptional circumstances ” applying to situations where, as here, a defendant willfully fails to appear at a proceedin g of which he has reasonable notice. Rather, as noted above, the law clearly states that once a defendant

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3 T he trial court questioned Wright’s credibility on this claim, stating, “I don’ t know how much weight I gi ve his testimony that he believed it was resolved[.]” N.T., 10/19/2016, at 15.J

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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 Wri ght 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 unava ilable 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 Wrigh t had been arrested
in three other cases duri ng 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 dilig ence. 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 differe nt jurisdiction. Rather, the implication of the statement is the R ule 600J

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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 protec tions 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 c onclude Wright’s subsequent arrest s 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 tha t 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 it s 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 th e case, as well.J

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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.