Com. v. Clark

CourtSuperior Court of Pennsylvania
Writing for the CourtBefore WATKINS; SPAETH; HOFFMAN; PRICE; HOFFMAN; PRICE
Citation248 Pa.Super. 184,374 A.2d 1380
Decision Date29 June 1977
PartiesCOMMONWEALTH of Pennsylvania v. Gerald CLARK, Appellant.

Page 1380

374 A.2d 1380
248 Pa.Super. 184
COMMONWEALTH of Pennsylvania
v.
Gerald CLARK, Appellant.
Superior Court of Pennsylvania.
Submitted Feb. 23, 1976.
Decided June 29, 1977.

Page 1381

[248 Pa.Super. 185] 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.

[248 Pa.Super. 186] 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 [248 Pa.Super. 187] 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?

Page 1382

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 [248 Pa.Super. 188] 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 [248 Pa.Super. 189] 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

Page 1383

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.

[248 Pa.Super. 190] 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...

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10 practice notes
  • Com. v. Colon
    • United States
    • Pennsylvania Superior Court
    • July 29, 1983
    ...pending). 5 [317 Pa.Super. 423] We were presented with facts remarkably similar to those of the instant case in Commonwealth v. Clark, 248 Pa.Super. 184, 186-87, 374 A.2d 1380, 1381 (1977), in which Judge Spaeth Appellant's trial was originally set for November 12, 1974, well within the 270......
  • Com. v. Taylor
    • United States
    • Superior Court of Pennsylvania
    • March 8, 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......
  • Instapak Corp. v. S. Weisbrod Lamp & Shade Co., Inc.
    • United States
    • Superior Court of Pennsylvania
    • June 29, 1977
    ...pre-judges the ultimate conclusion and eliminates the necessity and purpose of the remand for further proceedings. I do agree [248 Pa.Super. 184] that the order complained of was premature and that in further proceedings the mandate of Pa.R.C.P. 209 must be It may well be that upon remand a......
  • Com. v. Snyder
    • United States
    • Superior Court of Pennsylvania
    • July 25, 1980
    ...Commonwealth v. Bundridge, --- Pa.Super. ---, 407 A.2d 406, 408 (1979) allocatur granted February 4, 1980; Commonwealth v. Clark, 248 Pa.Super. 184, 374 A.2d 1380 In Cohen, the Supreme Court held that "a defendant on bail who fails to appear at a court proceeding, of which he has been prope......
  • Request a trial to view additional results
10 cases
  • Com. v. Colon
    • United States
    • Pennsylvania Superior Court
    • July 29, 1983
    ...pending). 5 [317 Pa.Super. 423] We were presented with facts remarkably similar to those of the instant case in Commonwealth v. Clark, 248 Pa.Super. 184, 186-87, 374 A.2d 1380, 1381 (1977), in which Judge Spaeth Appellant's trial was originally set for November 12, 1974, well within the 270......
  • Com. v. Taylor
    • United States
    • Superior Court of Pennsylvania
    • March 8, 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......
  • Instapak Corp. v. S. Weisbrod Lamp & Shade Co., Inc.
    • United States
    • Superior Court of Pennsylvania
    • June 29, 1977
    ...pre-judges the ultimate conclusion and eliminates the necessity and purpose of the remand for further proceedings. I do agree [248 Pa.Super. 184] that the order complained of was premature and that in further proceedings the mandate of Pa.R.C.P. 209 must be It may well be that upon remand a......
  • Com. v. Snyder
    • United States
    • Superior Court of Pennsylvania
    • July 25, 1980
    ...Commonwealth v. Bundridge, --- Pa.Super. ---, 407 A.2d 406, 408 (1979) allocatur granted February 4, 1980; Commonwealth v. Clark, 248 Pa.Super. 184, 374 A.2d 1380 In Cohen, the Supreme Court held that "a defendant on bail who fails to appear at a court proceeding, of which he has been prope......
  • Request a trial to view additional results

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