Com. v. Clark

Decision Date29 June 1977
Citation248 Pa.Super. 184,374 A.2d 1380
PartiesCOMMONWEALTH of Pennsylvania v. Gerald CLARK, Appellant.
CourtPennsylvania Superior Court

Ernest T. Kardas, Asst. Public Defender, Media, for appellant.

Ralph B. D'Iorio, Asst. Dist. Atty., Media, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

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. 1 The prosecutor and appellant's counsel appeared in court that day but appellant did not. Appellant's absence was unexplained, and when the prosecutor suggested that appellant was a fugitive, the court agreed and declared him a fugitive. In fact, however, appellant was in jail in the same county, under charges unrelated to the car wash and gas station incident. Appellant had received notice of his November 12 trial date but had made no effort to inform his counsel, the prosecutor, or the warden regarding his required appearance in court for trial. Although there was some evidence that someone in the District Attorney's office knew that appellant had been rearrested and was in jail, 2 evidently the prosecutor in charge of the present case did not.

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). 3 But was appellant a fugitive? Some law enforcement official knew that appellant was in jail; probably someone in the District Attorney's office also knew it. However, those who knew that did not also know that appellant was due for trial on the instant charges on November 12; those who knew about the trial did not know of appellant's subsequent arrest and imprisonment. We are thus unable to find, on the record before us, that the Commonwealth had discharged its duty to exercise due diligence to ascertain appellant's whereabouts. 4 However, if the Commonwealth "lost" appellant, appellant took full advantage of being lost. He alone among the principals of this case knew both where he was and that he was due in court on November 12, and yet he made no effort either to get to court or to tell anyone concerned with his case where he was. Although it is axiomatic that "it is not the defendant's duty to bring himself to trial," Commonwealth v. Adams, 237 Pa.Super. 452, 457, 352 A.2d 97, 99 (1975), it does not follow from this axiom that a defendant may hide himself away in some crevice of the criminal justice system. To declare appellant a "fugitive" was unwarranted, given the fact that he was in custody. He may nevertheless have been "unavailable." A determination of whether he was must await further evidence, particularly on the extent of the District Attorney's knowledge. 5

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 is the period within which the defendant must be brought to trial. See Commonwealth v. Bean, --- Pa.Super. ---, 368 A.2d 765 (Filed Dec. 15, 1976) (Dissenting Opinion of HOFFMAN, J.). In this case, assuming that appellant was unavailable on November 12, 1974, how long was he unavailable? Sooner or later, we know, the prosecutor became aware of his whereabouts. But when? Again, on the record before us, we cannot answer this question; yet it is only after it is answered that the proper period for commencement of appellant's trial can be determined. Given the record before us, we have no choice but to vacate the judgments of sentence and remand to the lower court to determine how long the period for commencement of appellant's trial should have been extended due to appellant's unavailability. If the court finds that appellant was tried within that period (exclusive of the delays occasioned by appellant's counsel's absence and unpreparedness), the judgments of sentence should be re-instated. Otherwise appellant must be discharged.

We therefore vacate the judgments of sentence and remand for proceedings consistent with this opinion.

HOFFMAN, J., files a dissenting opinion.

PRICE, J., files a dissenting opinion.

HOFFMAN, Judge, 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. 1 I agree and would, therefore, order appellant discharged.

On April 1, 1974, Delaware County officials arrested appellant and filed a complaint charging him with robbery, 2 theft by unlawful taking, 3 theft by receiving stolen goods, 4 simple assault, 5 and conspiracy. 6 Appellant filed a $500 bail bond and was released. On June 14, 1974, a Delaware County grand jury indicted appellant on the above charges. The Commonwealth originally scheduled appellant's trial for November 12, 1974, but appellant failed to appear on that day. The court concluded that appellant was a fugitive and issued a bench warrant for his arrest. In fact, appellant had been in a Delaware County jail since November 3, 1974, under charges unrelated to those involved in the instant case. The District Attorney's office forwarded notice to appellant of his impending trial, but appellant did not inform the prison warden that he was to be tried on November 12. The record does not reveal precisely when the District Attorney's office discovered appellant's presence in the Delaware County Jail or when appellant received notice of the trial.

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 motions, the lower court sentenced appellant to concurrent one-and-one-half-to-three year terms of imprisonment. This appeal followed.

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. 7

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...

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3 cases
  • Com. v. Taylor
    • United States
    • Pennsylvania Superior Court
    • 8 Marzo 1985
    ...having been incarcerated in this Commonwealth. Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977); Commonwealth v. Clark, 248 Pa.Super. 184, 374 A.2d 1380 (1977). Once again, the taint of a volitional act in dereliction of a duty is missing and, as in the previous situation, Rule......
  • Com. v. Herbert
    • United States
    • Pennsylvania Superior Court
    • 27 Diciembre 1985
    ...way prevented his being ruled unavailable under Rule 1100. As Judge Spaeth (now President Judge) stated in Commonwealth v. Clark, 248 Pa.Super. 184, 188, 374 A.2d 1380, 1382 (1977): Although it is axiomatic that "it is not the defendant's duty to bring himself to trial," (citation omitted),......
  • Com. v. Yancey
    • United States
    • Pennsylvania Superior Court
    • 2 Diciembre 1977
    ...bears the burden of showing due diligence. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Clark, 248 Pa.Super. 184, 374 A.2d 1380 (1976); Commonwealth v. McCafferty, 242 Pa.Super. 218, 363 A.2d 1239 (1976); Commonwealth v. Adams, 237 Pa.Super. 452, 352 A.2d 97 I......

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