Com. v. Browne

• Decision Date: 27 December 1990
• Citation: 584 A.2d 902,526 Pa. 83
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Edward Francis BROWNE, Jr., Appellant.
• Court: Pennsylvania Supreme Court

Page 902

584 A.2d 902

526 Pa. 83

COMMONWEALTH of Pennsylvania, Appellee, v. Edward Francis BROWNE, Jr., Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 25, 1990.

Decided Dec. 27, 1990.

[526 Pa. 84] J. Richard Gray, Lancaster, for appellant.

Henry S. Kenderdine, Dist. Atty., James J. Karl, Lancaster, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

This case involves the right to a prompt criminal trial under what is referred to as "Rule 1100," Pa.Rule of Criminal Procedure 1100. Under the provisions of former Pa.R.Crim.P. 1100(a)(2), which was in effect until December 31, 1987, when amended by this Court, and in effect at all times relevant hereto:

Trial in a court case in which a written criminal complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

Subsection (c)(1) of Rule 1100 provided that:

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.

Further, subsection (c)(3) of that Rule mandated that:

Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial can not 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.

The facts in the instant case are as follows: Appellant was charged by criminal complaint dated April 5, 1987, with Driving Under the Influence of Alcohol and two companion summary offenses under the Vehicle Code, Title 75 Pa.C.S.A. The complaint was actually filed with a district justice on April 6, 1987. For reasons not appearing of record, the complaint and summons were not mailed to Appellant-defendant until April 21, 1987. The initial date set by the district justice for the preliminary hearing under Pa.R.Crim. P. 141 was June 17, 1987. Appellant then requested a continuance, and a new preliminary hearing date was set for July 1, 1987. The delay between the time of filing the complaint and the June 17, 1987, original hearing date was primarily due to the police schedule as to hours they were working and vacation days according to the findings of the Court of Common Pleas of Lancaster County (Memorandum Opinion of trial court, p. 1). Hence, seventy-two days of delay were attributable to the Commonwealth. The defense was responsible for the fourteen day delay between June 17 and July 1, 1987. The preliminary hearing was held as scheduled on July 1, 1987. No attorney for the Commonwealth entered an appearance in the proceedings at the district justice level, and no attorney for the Commonwealth was present at this preliminary hearing.

The district justice found a prima facie case and ordered the matter held over for the Court of Common Pleas. See Pa.R.Crim.P. 143. At the conclusion of the preliminary hearing, the district justice prepared and served on Appellant a document entitled "Notice of Arraignment," as is the practice in the judicial district comprised of Lancaster County. The Notice of Arraignment is signed by the district justice and indicates that Appellant "will be arraigned on Wednesday, the 30th day of September, 1987." (R., 4a). Appellant's signature also appears on the Notice of Arraignment, dated July 1, 1987, as as acknowledgement of his receipt thereof.

A transcript was forwarded by the district justice to the court, and the clerk of courts for Lancaster County received the same on July 8, 1987. Amongst the papers is the Notice of Arraignment to Appellant. Although the exact date of receipt is uncertain, the memorandum opinion of the trial court (at p. 2) indicates that the District Attorney's office is shown as receiving the yellow copy of the Notice of Arraignment at about the same time.

The judicial district comprised of Lancaster County employs a term system of criminal trials consisting of six (6) annual terms of court, each being two weeks in duration. (Memorandum opinion of trial court, p. 2). The judicial district comprised of Lancaster County also employs a system of six (6) corresponding dates of "arraignment court," the term utilized on the calendar published by the court. (Id.). There was a two-week term of court commencing on September 8, 1987. (Id.) The next two-week term of court commenced on November 9, 1987. (Id.). The "arraignment court" date corresponding to the September, 1987, term of court was July 29, 1987. (Id.). The "arraignment court" date corresponding the the November, 1987, term of court was September 30, 1987. ¹

By virtue of the system summarized above, trial of a defendant whose arraignment was scheduled for July 29, 1987, could have occurred no earlier than September 8, 1987. Likewise, trial of a defendant (like Appellant), whose arraignment was scheduled for September 30, 1987, could have occurred no earlier than November 9, 1987.

The 180 day period for commencing trial under Rule 1100, excluding the fourteen day delay indisputedly attributed to Appellant, would have expired on October 18, 1987, a date between the two terms of court as summarized above. Hence, because Appellant was scheduled to be arraigned on September 30, 1987, his trial could not have commenced until November 9, 1987, at the earliest--well beyond the October 18, 1987 "run date" under Rule 1100.

On August 5, 1987, the Commonwealth filed an information against Appellant. See, Pa.R.Crim.P. 225. On August 31, 1987, the Commonwealth filed a timely Petition for Extension of Time for Commencing Trial, to which Appellant filed an Answer on October 1, 1987. A hearing on the petition was eventually held on November 2, 1987, at the conclusion of which the trial court denied the same. On November 23, 1987, Appellant filed a Motion to Dismiss pursuant to Pa.R.Crim.P. 1100. The court entered an order on November 23, 1987, granting said motion and dismissing the charges.

It is from the order of November 23, 1987, that the Commonwealth filed an appeal to the Superior Court. The Superior Court, in a memorandum opinion, reversed the trial court on the grounds that the Commonwealth was not guilty of performing with a lack of due diligence, and was not responsible for the delay caused by the district justice's scheduling of the arraignment since the Commonwealth is not generally responsible for or charged with derelictions on the part of other "agencies" within the criminal justice system. The Superior Court relied on Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346 (1986), in reaching their conclusion. Judge Montemuro dissented.

We granted allocatur based on a continuing review of our appellate docket, because, blatantly put, we have become concerned that the Superior Court is more and more inclined to accept any and every excuse for failure to bring a criminal case to trial within the period prescribed by Rule 1100, and that this case presented the opportunity to prevent further emasculation of Rule 1100. For the reasons set forth below, we reverse.

Under Rule 1100, the Commonwealth must act with "due diligence" to bring a criminal defendant to trial. "When a case has possible Rule 1100 problems, prosecutors must do everything reasonable within their power to see that the case is tried on time." Commonwealth v. Smith, 477 Pa. 424, 428, 383 A.2d 1280, 1282 (1978). See also, Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981). The test to be met is whether the Commonwealth's efforts to bring the defendant to trial were reasonable and pursued with diligence. Commonwealth v. Koonce, 511 Pa. 452, 515 A.2d 543 (1986). Here the test of due diligence was not met. The Commonwealth argues:

In conjunction with the term system of criminal court as herein described and in conjunction with the system whereby the district justices notify defendants as to which arraignment they are to report, it would be unduly harsh to require the office of the district attorney to monitor cases being returned to the court by the district justices in order to unearth "problem cases" under Rule 1100 occasioned by the arraignment date given to defendants by the district justices....

(Appellee's brief, p. 6).

The argument is sheer nonsense. Particularly in light of the Lancaster County District Attorney's heavy responsibility under Local Rule 303 (with respect to conducting arraignments) (see footnote 1 above), it is not unreasonable or erroneous to expect the District Attorney's Office to track arraignment dates on a routine basis to determine whether prosecution under Rule 1100 is thereby jeopardized. That office and those like it must, to be diligent, have simple systems in place to carry out the routine duties of the office. Sound reason requires no less. It would be easy to maintain a diary book where the relevant dates in a given prosecution could be promptly entered and checked against the Rule 1100 run date as a matter of course. Practicing lawyers must maintain docket books to make sure that they appear in court on the right date, file pleadings on time, complete discovery in a timely fashion, and do not run afoul of statutes of limitation. No less is required of a properly administered district attorney's office. Here, the District Attorney's Office "blew it" and they did so because a routine diary or docket system was apparently not in place. That constitutes a failure to exercise due diligence. It has been held that "due diligence" imposes the obligation on the government to "read its mail and respond intelligently." United States v. Salzmann, 417 F.Supp. 1139, 1155 (D.C.E.D.N.Y., 1976). We hold that due diligence likewise...