Com. v. Baird
| Citation | 919 A.2d 258 |
| Decision Date | 28 February 2007 |
| Docket Number | No. 721 WDA 2005,721 WDA 2005 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. Scott D. BAIRD, Appellee. |
| Court | Superior Court of Pennsylvania |
Peter G. Flanigan, Assistant District Attorney, for Commonwealth, appellant.
Michael J. DeRiso, Monroeville, for appellee.
BEFORE: FORD ELLIOTT, P.J, HUDOCK, JOYCE, STEVENS, MUSMANNO, KLEIN, BENDER, McCAFFERY, and PANELLA, JJ.
OPINION BY McCAFFERY, J.:
¶ 1 The Commonwealth of Pennsylvania appeals from the order that dismissed the criminal charges brought against Scott D. Baird, Appellee, on the basis that the Commonwealth had failed to bring Appellee to trial within the 365-day time period specified in Pa.R.Crim.P. 600. Specifically, the Commonwealth asks us to determine whether the trial court erred in including within the 365-day period the time between the date of Appellee's scheduled arraignment, at which he did not appear, and the date of the ultimate apprehension of Appellee some fourteen months later. Because we conclude that the trial court did err in determining that Appellee had insufficient notice of the date of the arraignment, we reverse and remand for further proceedings.
¶ 2 The pertinent factual and procedural background of this matter is as follows. On February 27, 2003, Appellee was charged with burglary, robbery and resisting arrest in connection with an incident at a beer distributor in Westmoreland County, and he was subsequently released on bail. On March 11, 2003, Appellee's counsel, Kevin Zinski, Esquire, waived Appellee's preliminary hearing and signed the notice of arraignment, scheduled for April 25, 2003. However, Mr. Zinski never advised Appellee, who had not been present at the waived preliminary hearing, of the date of the arraignment, and neither Mr. Zinski nor Appellee appeared at the arraignment. As a result of Appellee's failure to appear at the arraignment, the trial court issued a bench warrant for Appellee's arrest. On June 21, 2004, Appellee was stopped for a motor vehicle violation in Allegheny County and was arrested on the basis of the outstanding Westmoreland County warrant. The trial court vacated the warrant on the following day, and Appellee was once again released from custody on bail.
¶ 3 After several defense-requested continuances due to the unavailability of counsel, trial was scheduled for April 4, 2005. On February 15, 2005, Appellee filed a motion to dismiss based on the Commonwealth's failure to bring Appellee to trial within 365 days after his arrest, pursuant to Pa.R.Crim.P. 600. After conducting an evidentiary hearing on the Rule 600 motion, the trial court granted the motion and dismissed the charges. The Commonwealth filed this timely appeal, raising the following two issues for our review:
I. Whether [Appellee] had been afforded reasonable notice of his formal arraignment date (thereby rendering him unavailable for the purposes of Rule 600) when his attorney signed the official court arraignment form and subsequently neglected to advise [Appellee] of the date?
II. Whether the granting of a request for a bench warrant of arrest and the entry of the warrant into the statewide "CLEAN" system constitutes due diligence by the Commonwealth in its effort to bring [Appellee] to trial?
¶ 4 Our review of challenges to Rule 600 rulings is guided by the following principles:
Our standard of review relating to the application of Rule 600 is whether the trial court abused its discretion. Our scope of review is limited to the evidence on the record of the Rule 600 evidentiary hearing and the findings of the trial court. We must view the facts in the light most favorable to the prevailing party.
Commonwealth v. Malgieri, 889 A.2d 604, 606 (Pa.Super.2005).2
¶ 5 As a general rule, the Commonwealth is required to bring a defendant on bail to trial within 365 days of the date the complaint was filed. Pa.R.Crim.P. 600(A)(3); Commonwealth v. Hyland, 875 A.2d 1175, 1189 (Pa.Super.2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005). However, in determining the period within which trial must commence, any period of delay that results from the unavailability of the defendant or his attorney or from any continuance granted at the request of the defendant or his attorney is excludable. Pa.R.Crim.P. 600(C)(3); Hyland, supra at 1189-90. A defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is deemed unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978); Commonwealth v. Vesel, 751 A.2d 676, 680 (Pa.Super.2000).
¶ 6 Notice of an upcoming court date to someone other than the defendant may constitute proper notification of the date to the defendant. See Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111, 1116 (1983) (); Commonwealth v. Cornish, 311 Pa.Super. 72, 457 A.2d 118, 121 (1983) (). Further, where a defendant fails to appear, upon the advice of counsel, at a scheduled hearing of which he has been properly notified, counsel's subsequent claimed inadvertent failure to file a waiver of arraignment form is imputed to the defendant. Commonwealth v. Snyder, 373 Pa.Super. 582, 542 A.2d 95, 98-99 (1988).
¶ 7 On the basis of the foregoing, we hold that it is the responsibility of defense counsel to advise a defendant of court proceedings requiring the defendant's presence. Where defense counsel has actual notice of a proceeding and fails to so inform his or her client, the onus and consequences of such failure fall upon the defendant. The defendant's failure to appear at the court proceeding, therefore, renders the defendant unavailable during the entire period between the date of the proceeding and the defendant's subsequent apprehension by police.
¶ 8 In the case sub judice, we determine that notice to Appellee's counsel constituted proper notification to Appellee of the date of his arraignment. As such, Appellee's failure to appear at the arraignment on April 25, 2003, rendered him unavailable for trial. Therefore, the period between April 25, 2003, and June 21, 2004, constitutes excludable time for purposes of determining the time within which the Commonwealth was required to commence Appellee's trial under Rule 600. Thus, we conclude that the trial court erred in holding that the Commonwealth's failure to try Appellee during this period was not attributable to Appellee's unavailability. When the period of Appellee's unavailability, coupled with the continuances occasioned by the requests of Appellee's counsel subsequent to Appellee's apprehension, is excluded from the calculation of the 365-day period within which the Commonwealth had to bring Appellee to trial, it is clear that the scheduling of Appellee's trial for April 4, 2005, fell within the 365-day period.
¶ 9 Accordingly, based on the above, we reverse the order granting Appellee's motion to dismiss and remand for further proceedings consistent with this opinion.
¶ 10 Order reversed. Case remanded. Jurisdiction relinquished.
¶ 1 I agree with the Majority's decision to reverse the order of the Court of Common Pleas dismissing Appellee's case on Pa.R.Crim.P. 600 grounds. I write separately to respond to the dissenting opinion, and note several other factors contributing to this jurist's determination.
¶ 2 As noted by both the Majority and the Dissent, Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978) is instrumental in resolving this appeal. There, our Supreme Court stated,
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.
Cohen, 392 A.2d at 1330. A defendant will be deemed unavailable if he is on bail and fails to appear at a scheduled court proceeding "of which he has been properly notified." Id. at 1331. Hence the question becomes "what is reasonable and/or proper notice?"
¶ 3 The dissenting opinion answers this question by referring to the local rule of Westmoreland County.3 Specifically, WC 542 states that it is the district justice's duty to set the arraignment date, notify the defendant and defense counsel of that date, and require the defendant to sign an arraignment form verifying his awareness of the arraignment and the obligation to appear. Of course, this is an iron clad method of resolving issues as the one sub judice, as actual notice is rarely debatable. Clearly, this local rule was not complied with, and actual notice was not...
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... ... 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 benefiting from his own wrongdoing ... Commonwealth v. Baird, 919 A.2d 258, 261 (Pa.Super.2007), appeal granted in part, 593 Pa. 517, 932 A.2d 874 (2007) (quotation omitted). Similarly, "To hold that the appellant ... is entitled to the same standard of due diligence that we would afford an appellant who accepts his confinement without flight or one who ... ...
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