Com. v. Frye

Decision Date12 October 2006
Citation909 A.2d 853
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Derrick FRYE, Appellant.
CourtPennsylvania Superior Court

Roy Zipris, Public Defender, Philadelphia, for appellant.

Jason Fetterman, Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: STEVENS, GANTMAN, and POPOVICH, JJ.

OPINION BY STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after a jury convicted Appellant of first-degree felony robbery, for which he received a nine and one-half to twenty year prison sentence. Appellant contends that the trial court erred in denying his challenge for cause to a juror and by denying his motion to discharge pursuant to Pa.R.Crim.P. 600. We affirm.

¶ 2 On September 24, 2003 a criminal complaint was filed against Appellant charging him with robbery, aggravated and simple assault, theft, possession of an instrument of crime, terroristic threats, and recklessly endangering another person. A preliminary hearing listed for September 30, 2003 was continued to October 7, 2003 because the victim, who was chief witness for the Commonwealth, was still being hospitalized for the stab wounds he received from Appellant. On October 7, 2003, the preliminary hearing was again continued, this time to November 19, 2003, because the victim had not yet been discharged from the hospital. On November 19, 2003, the charges were held for court.

¶ 3 The quarterly sessions report of Appellant's December 10, 2003 arraignment notes that no discovery took place at that time and that a pretrial date of January 12, 2004 was set. The report for January 12, 2004 notes a continuance to January 26, 2004 on "defense request," with an additional notation that the "judge [was] not sitting." On January 26, 2004, the court ordered a scheduling conference for February 9, 2004, and that reciprocal discovery was due within 30 days. On February 9, 2004, the report lists that the defense required additional discovery, which the Commonwealth agreed to provide, and that the Commonwealth requested the earliest possible date—June 14, 2004—for what it anticipated would be a three-day jury trial. The court also granted the Commonwealth's motion for DNA testing.

¶ 4 The March 3, 2004 report indicates DNA testing occurred on that date, and that the June 14, 2004 trial date was retained. On June 14, 2004, the Commonwealth requested a continuance as it still awaited DNA test results. The court set a new earliest possible trial date of September 16, 2004. After the court granted Appellant's July 16, 2004 Rule 600(e) motion for nominal bail, the September 9, 2004 report shows a defense request for a continuance because a defense witness would be on vacation on the scheduled trial date. The court rescheduled trial from September 16, 2004 to the earliest possible date, November 1, 2004, and the time was ruled excludable. In a subsequent September 24, 2004 quarter session entry where the court granted a Commonwealth motion to revoke Appellant's bail, there is a notation that the court ordered the quarter sessions file to reflect that the Commonwealth was in fact ready to try the case on September 16, 2004.

¶ 5 On the scheduled trial date of November 1, 2004, the defense required another continuance for an unavailable witness, a new trial date of November 8, 2004 was set, and time was ruled excludable. On November 8, 2004, defense counsel was ill, a new trial date of November 22, 2004 was set, and time was ruled excludable. On November 22, 2004, the prosecutor was granted a continuance because, just ten hours before trial was set to commence, he learned that the Philadelphia Department of Health ordered his son's daycare center closed for the 22nd due to a suspected case of meningitis in one of the children enrolled there, and he could not possibly arrange substitute daycare on such short notice. To accommodate both another criminal case slated for that courtroom and the three-day holiday week, the court set a new trial date of November 29, 2004, which was one day before the adjusted run date applicable to Appellant's case. On November 29, 2004, however, the other criminal trial had not yet concluded, so on the prosecutor's suggestion Appellant's case was reassigned to a new judge to expedite trial, and a new trial date of December 6, 2004 was set. Time was ruled excludable.

¶ 6 On December 6, 2004, Appellant filed a pretrial motion to discharge under Rule 600(g) on the argument that the most recent continuance was not excludable time and, therefore, pushed the case six days beyond Appellant's adjusted run date. Though it agreed that the case was, in fact, six days past the run date, the court denied Appellant's motion, ruling that the six day delay was de minimis and that "the record is entirely [devoid of] any lack of due diligence on the part of the Commonwealth in this case." N.T. 12/06/04 at 16.

¶ 7 During jury selection which followed, prospective Juror Number 9 declared that serving as a juror would be hardship because he was scheduled to testify as the Commonwealth's sole eyewitness in a different criminal case listed for trial to begin the next day. The trial court opined that the chances that trial in the other case would actually begin tomorrow were "nonexistent," and then verified with the prospective juror that there was no other problem that would prevent him from serving as a fair and impartial juror in this case. N.T. 12/06/04 at 73.

¶ 8 In objecting primarily that the scheduling conflict presented a genuine hardship, counsel for Appellant stressed the imprudence of delaying the other case just so its chief witness could sit as a juror in the present case. Counsel also voiced a secondary objection that there may be a "legal issue" because the juror was "working with the Commonwealth on [the other case]." "I know you can be fair and impartial, no doubt about that[]" counsel said to the prospective juror, "... but the thing is during the time you are working with [the prosecutor's] colleagues, ... [you are working] as a team." N.T. 12/06/04 at 76. To this point, the trial court confirmed with the prospective juror that he had not dealt with the prosecutor in this case and could be fair and impartial here. N.T. 12/06/07 at 77. Counsel for Appellant devoted the remainder of his lengthy hardship objection to the scheduling conflict at hand, which the court rejected. Juror Number 9, therefore, served on Appellant's jury, which convicted Appellant as noted supra.

¶ 9 Taking Appellant's issues out of turn, we first address whether the trial court erred in denying his Rule 600(g) motion to discharge. The crux of Appellant's Rule 600 challenge is that the Commonwealth could not show due diligence where it failed to establish that it had a case tracking system in place that would have enabled it to avoid a rule violation and ensure that the case was heard several days earlier:

on November 29, 2004, when the case was continued and reassigned, there is no evidence in the record to show that the prosecution had a system in place to monitor potential rule problems; that, with such a system in place, the prosecution was duly diligent in trying to avoid a rule violation in this case; or that the additional delay was beyond its control—that is, that the case could not have been heard several days earlier, within the amended run date.

Brief for Appellant at 14-15.

¶ 10 In evaluating Rule 600 issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.Super.2004) (en banc). Furthermore:

The proper scope of review ... is limited to the evidence on the record of the Rule 600 evidentiary hearing, and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party. Additionally, when considering the trial court's ruling, this Court is not permitted to ignore the dual purpose behind Rule 600. Rule 600 serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society. In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. However, the administrative mandate of Rule 600 was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

Id. at 1238-39 (internal citations and quotation marks omitted).

¶ 11 Rule 600 sets forth the speedy trial requirements and provides in pertinent part:

Rule 600. Prompt Trial

* * *

(A)(3) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.

* * *

(C) In determining the period for commencement of trial, there shall be excluded therefrom:

* * *

(3) such period of delay at any stage of the proceedings as results from: . . . (b) any continuance granted at the request of the defendant or the defendant's attorney

* * *

(G) For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant's attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.

If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on...

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  • Commonwealth Of Pa. v. Bradford
    • United States
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    • 4 Agosto 2010
    ...to try the defendant timely and that the circumstances occasioning the delay were beyond the Commonwealth's control. Commonwealth v. Frye, 909 A.2d 853, 858 (Pa.Super.2006); Pa.R.Crim.P. 600(G). Thus, if the Commonwealth establishes it acted with due diligence and shows the delay in questio......
  • Com. v. Martz
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    ...600 issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. Commonwealth v. Frye, 909 A.2d 853, 857 (Pa.Super.2006). The proper scope of review [ ... ] is limited to the evidence of record of the Rule 600 evidentiary hearing, and the find......
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    ...the defendant timely and that the circumstances occasioning the delay were beyond the Commonwealth's control. See Commonwealth v. Frye , 909 A.2d 853, 858 (Pa. Super. 2006) ; see also Pa.R.Crim.P. 600(G). Due diligence is a fact-specific concept to be determined on a case-by-case basis. See......
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