Com. v. Fisher

• Decision Date: 12 October 1984
• Citation: 334 Pa.Super. 449,483 A.2d 537
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Raymond FISHER.
• Court: Pennsylvania Superior Court

Page 537

483 A.2d 537

334 Pa.Super. 449

COMMONWEALTH of Pennsylvania, Appellant, v. Raymond FISHER.

Superior Court of Pennsylvania.

Argued April 24, 1984.

Filed Oct. 12, 1984.

[334 Pa.Super. 451] Ronald Eisenberg, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellant.

William P. James, Philadelphia, for appellee.

Before McEWEN, CIRILLO and BECK, JJ.

OPINION

CIRILLO, Judge:

The Commonwealth appeals from an order discharging appellee Raymond Fisher under Pennsylvania Rule of Criminal Procedure 1100.

This case arose from the rape of a seventeen-year-old girl in Philadelphia on July 20, 1976. A criminal complaint charging Fisher with the crime was filed the next day; however, Fisher managed to elude apprehension until November 11, 1978. At least seven times over the course of the next four years, Fisher was adjudged incompetent, and consequently could not be brought to trial for most of that period. On August 26, 1982, the Court of Common Pleas of Philadelphia County found Fisher to be competent and ordered his case to proceed to trial on September 22, 1982. Before the date set for trial, Fisher's counsel, pursuant to Pa.R.Crim.P. 1100(f), moved to dismiss the charges on the ground that Fisher's right to a speedy trial had been denied. On the 22nd of September the court entertained arguments of counsel on the motion to dismiss. The court continued the trial to October 6, 1982, and reserved ruling on the motion until then. After reconvening on October 6th, the court granted the defense motion and discharged Fisher. We reverse.

Rule 1100, as applicable to this case, provides that the Commonwealth has 180 days from the filing of a criminal complaint to bring the defendant to trial. Pa.R.Crim.P. 1100(a)(2). Any delay beyond 180 days must be accounted for either by an extension granted to the Commonwealth under Rule 1100(c), or by an exclusion of time attributable to defense delay under Rule 1100(d). Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). A defendant may enforce his rights under the rule by filing a petition to dismiss under Rule 1100(f).

After analyzing the long and tortuous procedural history of this case, we have concluded that all periods of delay beyond 180 days were properly accounted for under the rule, and hence discharge was erroneous.

It is beyond dispute that Fisher was a fugitive from justice for the period from 7/21/76 to 11/11/78, when finally he was arrested. Fisher absented himself throughout this entire period despite duly diligent efforts by the police to locate him, and the entire period must therefore be chalked up to unavailability and excluded from the Rule 1100 computation. Commonwealth v. Winn, --- Pa.Super. ---, 475 A.2d 805 (1984); Commonwealth v. Lyles, 315 Pa.Super. 194, 461 A.2d 1237 (1983). Thus the 180 days the Commonwealth had to bring Fisher to trial did not begin to run until November 11, 1978.

The running of the period was tolled soon thereafter when, on December 21, 1978, the defendant requested and received a continuance of the preliminary hearing in order to undergo psychological evaluation of his competency. See Mental Health Procedures Act of July 9, 1976, P.L. 817, No. 143, § 402, effective in 60 days, as amended by Act of Nov. 26, 1978, P.L. 1362, No. 324, § 2, effective in 60 days, 50 P.S. § 7402. The testing resulted, on January 24, 1979, in a judicial declaration that Fisher was incompetent to stand trial. The law is clear that the Commonwealth is constitutionally barred from trying a defendant who is incompetent. Commonwealth v. McQuaid, 464 Pa. 499, 347 A.2d 465 (1975). Furthermore, our Court has held that a defendant is unavailable for purposes of Rule 1100 from the time he requests a continuance for evaluation of his competency until he is adjudged competent to stand trial. Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979); Commonwealth v. Quinlan, 259 Pa.Super. 536, 393 A.2d 955 (1978) (plurality opinion); Commonwealth v. Reese, 237 Pa.Super. 326, 352 A.2d 143 (1975) (allocatur refused); See also Commonwealth v. Bell, --- Pa.Super. ---, 476 A.2d 439 (1984); Pa.R.Crim.P. 1100 Comment. Therefore, all delay stemming from appellee's continuance of 12/21/78 must be excluded from the run time.

The period of exclusion attributable to the December 21 continuance lasted until May 7, 1979, when Fisher was declared competent. ¹ At that point, Rule 1100 commenced again to run until May 22, 1979, when the court ordered further psychiatric testing to determine Fisher's competency to stand trial. Fisher's psychological status remained undetermined until September 5, 1979, when again he was found incompetent. ² Over the next year and a half, Fisher's condition was repeatedly reevaluated; the incompetency finding of 9/5/79 was not reversed, however, until February 19, 1981, when the court declared him competent to stand trial.

The 180-day period ran again until May 5, 1981, on which date defense counsel was unavailable for trial and the defendant waived the running of the rule until September 28, 1981. Meanwhile, on September 1, 1981, the court again ordered Fisher to undergo psychiatric examination, thus tolling the rule. On October 1, 1981, the court found Fisher incompetent and ordered him committed for treatment pursuant to the Mental Health Procedures Act. Fisher was not again adjudged competent until November 6, 1981. The entire period between 5/5/81 and 11/6/81 must be excluded from the Rule 1100 computation as attributable to appellee's waiver of the rule, see Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983); cf. Pa.R.Crim.P. 1100(d)(2) (effective January 1, 1982), or to his uncertain competency status, see supra.

The running of the rule was tolled again on November 20, 1981, when the case was continued due to Fisher's apparent relapse to incompetency. On November 24, he was recommitted for lack of competency. He was next found competent on December 30, 1981. As of the 30th of December, 1981, according to our calculation, only 140 days of the Rule 1100 period had elapsed. These 140 days not excludable under Rule 1100(d) were:

                11/11/78-12/20/78  39 days
                 5/7/79- 5/21/79   14
                 2/19/81- 5/4/81   74
                11/6/81-11/19/81   13
                ---------------------------
                Total              140 days
                

In arriving at our figure, we have applied 1 Pa.C.S. § 1908, which mandates that in computation of statutory time periods, the first day of the period be excluded and the last day included in the computation. See Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982) (1 Pa.C.S. § 1908 applicable to Rule 1100 calculations). The dates on which appellee or his counsel became unavailable for trial--12/21/78, 5/22/78, 5/5/81, and 11/20/81--must be excluded from the computation, since obviously the Rule 1100 period cannot continue to run on days on which the Commonwealth is prevented from proceeding in the case. See Commonwealth v. Lyles, supra.

Returning our attention to the adjudication of competency entered 12/30/81, the court that same day, by agreement of counsel, extended the Rule 1100 run date to March 30, 1982, and continued the case to February 18, 1982. On February 18, the defendant received a continuance so that the public defender could withdraw from the case and new counsel be appointed. Shortly thereafter, the court again ordered psychiatric testing for the defendant, who was again declared incompetent on February 25, 1982. He remained under incompetency commitment until August 26, 1982, when he was found competent again. There is no question that the entire period commencing February 18 and ending August 26 was excludable from the Rule 1100 period, as time consumed either by a defense-requested continuance, see Rule 1100(d)(3)(ii) & Note, or the unavailability of the defendant, Rule 1100(d)(3)(i).

The real crux of this case is the treatment to be accorded the period 12/30/81-2/18/82. We find that this period was excludable under the holding of Commonwealth v. Guldin, 502 Pa. 66, 463 A.2d 1011 (1983). See Commonwealth v. Byrd, 493 Pa. 178, 183 n. 7, 425 A.2d 722, 724 n. 7 (1981) (it is for the appellate court to decide the legal consequences of periods of delay under Rule 1100(d)). In Guldin our Supreme Court held that where the Commonwealth is prepared to go to trial within the Rule 1100 period, and for reasons of trial strategy defense counsel acquiesces in a purported 1100(c) extension beyond the regular run date, the period of extension may be treated as excludable continuance time under 1100(d). Postponement of trial was found to be in the defendant's best interests in Guldin for a number of strategic reasons. In the present case as well, it is clear that postponement of trial on 12/30/81 could only inure to the benefit of the defendant. Fisher's incompetency was a major factor working in his favor as far as the criminal charges against him were concerned. Indeed, the defendant, through his various counsel twice moved to discharge the prosecution against him on the basis that he was likely to remain incompetent indefinitely. See 50 P.S. § 7403(d), (e). The second such motion, filed by appellee's present counsel on April 28, 1982, was made possible only by the public defender's decision to acquiesce in and take advantage of the extension of the Rule 1100 run date to March 30, 1982. It will be remembered that when the public defender agreed to the extension on December 30, 1981, appellee had just been adjudged competent. However, only by countenancing further delay at that point could the public defender hope, on the contingency of a relapse by appellee into incompetency (as had happened so many times before), to renew at a later point the request for discharge on the ground of continuing incompetency. As it turned out, appellee later was in fact adjudged incompetent again, after the court on 2/22/82 continued his case for psychiatric examination. This point would never have been reached if not for the extension...