Com. v. Jackson

• Decision Date: 21 December 2000
• Citation: 765 A.2d 389
• Parties: COMMONWEALTH of Pennsylvania v. Gary JACKSON, Appellant.
• Court: Pennsylvania Superior Court

765 A.2d 389

COMMONWEALTH of Pennsylvania v. Gary JACKSON, Appellant.

Superior Court of Pennsylvania.

Submitted August 21, 2000.

Filed December 21, 2000.

Victor M. Snyder, Philadelphia, for appellant.

Catherine L. Marshall, Asst. District Atty., for Com., appellee.

Before FORD ELLIOTT, JOYCE, JJ., and CIRILLO, President Judge Emeritus.¹

FORD ELLIOTT, J.:

¶ 1 This is an appeal following remand so that the trial court could hold a hearing to determine whether the Commonwealth acted with due diligence, as required by Pa.R.Crim.P. 1100(g). The trial court concluded that the Commonwealth did, in fact, act with due diligence and therefore denied appellant's motion to dismiss. We affirm, albeit based on an analysis different from that articulated by the trial court. See Commonwealth v. Harper, 416 Pa.Super. 608, 611 A.2d 1211, 1213 n. 1 (1992)

(this court "may affirm the decision of the trial court if there is any basis on the record to support the trial court's action. This is so even if we rely upon a different basis in our decision to affirm[ ]") (citations omitted). The relevant factual and procedural history of this case follows.

¶ 2 The Commonwealth filed a criminal complaint on January 29th and 30th, 1995, charging appellant with robbing two groups of teenagers at gunpoint. The Commonwealth moved to consolidate appellant's case with that of his alleged co-conspirator, Frederick Brooks, following Brooks' arrest on January 19, 1996. On December 12, 1996, appellant filed a motion to dismiss pursuant to Pa.R.Crim.P. 1100, claiming that more than 365 days had elapsed since the Commonwealth filed its complaint, and requesting that charges against him be dismissed pursuant to Pa. R.Crim.P. 1100(g) or that he be released on nominal bail pursuant to Pa.R.Crim.P. 1100(e).² The trial court denied the motion. Following a consolidated jury trial in March 1997, appellant was convicted of five counts of robbery, two counts of possessing an instrument of crime, and one count of carrying a firearm on a public street in the City of Philadelphia.³ He was sentenced to an aggregate sentence of 11 to 22 years in prison.

¶ 3 Appellant appealed his conviction, arguing that the charges against him should have been dismissed pursuant to Pa.R.Crim.P. 1100 because trial did not commence within 365 days of the Commonwealth's filing the criminal complaint. In response, the trial court filed an opinion, outlining the periods that tolled the mechanical run date of January 30, 1996 for purposes of the Rule.⁴ (See trial court opinion, 3/4/98 at 3-7.) This court concluded that the trial court erred when it denied appellant's Rule 1100 motion without holding a hearing to determine whether the Commonwealth acted with due diligence between December 3, 1996, when appellant's co-defendant requested new counsel, and March 10, 1997, the date for which trial was rescheduled. Commonwealth v. Jackson, No. 3837 Philadelphia 1997, unpublished memorandum at 3-4 (Pa.Super. filed June 15, 1999). As a result, we remanded for a hearing. Id. at 5.

¶ 4 The trial court held the "due diligence" hearing on October 14, 1999 and found that the Commonwealth acted with due diligence during the period in question. As a result, the court denied appellant's motion to dismiss, and this timely appeal followed. Appellant raises the following issues on appeal:

1. Whether appellant is entitled to Arrest of Judgment as a result of the trial court's failure to dismiss charges pursuant to Pa.R.Cr.P. # 1100(a)(3)?

2. Whether the trial court erred in ruling that the Commonwealth had exercised due diligence, by opposing severance of appellant's trial from the trial of the codefendant, when codefendant's delays were being attributable [sic] to appellant?

3. Whether the trial court erred in denying appellant's motion for severance of trials?

Appellant's brief at 4.

¶ 5 In evaluating Rule 1100 issues, we review a trial court's decision for an abuse of discretion. Commonwealth v. Hill, 558 Pa. 238, 244, 736 A.2d 578, 581 (1999), citing Commonwealth v. Matis, 551 Pa. 220, 227, 710 A.2d 12, 15 (1998) (other citation omitted). "The proper scope of review in determining the propriety of the trial court's ruling is limited to evidence on the record of the Rule 1100 evidentiary hearing and the findings of the lower court." Hill, supra at 244, 736 A.2d at 581 (citations omitted). "In reviewing the determination of the hearing court, an appellate court must view the facts in the light most favorable to the prevailing party." Id. (citations omitted).

¶ 6 The gravamen of appellant's first two issues on appeal is that the Commonwealth did not act diligently because it opposed a severance of appellant's trial from that of his alleged co-conspirator, Frederick Brooks, when appellant's adjusted run date was approaching and Brooks requested new counsel. (Appellant's brief at 8.) According to appellant, the delays resulting from the consolidation are not excludable for purposes of Rule 1100. (Id. at 9.) In order to address appellant's argument, we must first discuss two cases that are relevant to its disposition.

¶ 7 In March of 1998, when the trial court filed its first opinion, this court had recently decided Commonwealth v. Zaslow, 448 Pa.Super. 289, 671 A.2d 707 (1996), appeal denied, 546 Pa. 680, 686 A.2d 1310 (1996). Zaslow sought to sever his trial from that of one of his co-conspirators, whose competency to stand trial was continually being re-evaluated, resulting in lengthy delays. Due to the complex nature of the case, the overlapping allegations against the four co-defendants, and the need for the same witnesses in each case, the Commonwealth opposed each of Zaslow's six motions to sever. When Zaslow moved to dismiss the charges against him based on Rule 1100, the trial court granted the motion. This court reversed, however, and held that the period of delay attributable to Zaslow's co-defendant was excludable from the Rule 1100 calculation because the Commonwealth exercised due diligence. Id. at 708-712.

¶ 8 In this case, the trial court relied on Zaslow, as well as the coordinate jurisdiction rule, when it excluded the period of time between December 3, 1996 and March 10, 1997 from its Rule 1100 calculation.⁵ (Trial court opinion, 3/4/98 at 7-10.) This court also relied in part on Zaslow when it remanded for an evidentiary hearing to determine whether the Commonwealth had been duly diligent during that time period, thereby justifying the trial court's decision to exclude those 95 days when making its Rule 1100 calculation. See Jackson (Pa.Super., No. 3837 Philadelphia 1997, memorandum filed June 15, 1999) at 2-3.

¶ 9 By the time the trial court held the evidentiary hearing in October of 1999, however, the supreme court had decided Hill, supra. Hill

involved two appeals from this court's orders affirming the denial of motions to dismiss; one involving Vernon Hill and one involving George Cornell. In Vernon Hill's appeal, the supreme court held that, for purposes of Rule 1100(c), a defendant is only unavailable for trial because he has filed pretrial motions if the Commonwealth demonstrates by a preponderance of the evidence that it exercised due diligence in opposing or responding to the pretrial motions. Hill, supra at 256, 736 A.2d at 587.

¶ 10 Cornell's appeal, in contrast, required the Hill court to determine whether periods of delay caused by a co-defendant were properly excluded for purposes of determining the adjusted Rule 1100 run date. In finding that such periods are not excludable, the Hill court sharply criticized Zaslow, on which the panel of this court deciding Cornell's appeal had relied, finding Zaslow in direct conflict with prior supreme court precedent. Hill, supra at 263, 736 A.2d at 590-591, citing Commonwealth v. Hagans, 482 Pa. 572, 394 A.2d 470 (1978). As the supreme court observed, "In Hagans, this Court clearly held that the delays caused by a co-defendant do not constitute excludable time under Rule 1100." Hill, supra at 260-261, 736 A.2d at 591, citing Hagans, supra at 576-577, 394 A.2d at 472. As a result, the Hill court reviewed the days the trial court had excluded for purposes of Rule 1100 in Cornell's case on the ground that his co-defendant's pretrial motions were pending. Hill, supra at 263, 736 A.2d at 591.

¶ 11 The Hill court found that the trial court had properly excluded 727 of the 876 days at issue because Cornell also had pretrial motions pending during that time and because the Commonwealth had exercised due diligence in opposing those motions. Hill, supra at n. 9, 736 A.2d at 591 n. 9, citing its analysis in Vernon Hill's case. The court found, however, that the remaining 149 days, during which only Cornell's co-defendant had pretrial motions pending, were not excludable under Hagans, supra.

As a result, the court found that a violation of Rule 1100 had occurred.⁶

Hill, supra at 263, 736 A.2d at 591.

¶ 12 Nevertheless, the Hill court did not conclude its analysis there, finding instead that it was still required to determine whether the Commonwealth acted with due diligence, thus excusing the delay. As the Hill court observed, "[E]ven where a violation of Rule 1100 has occurred, the motion to dismiss the charges should be denied if `the Commonwealth exercised due diligence and ... the circumstances occasioning the postponement were beyond the control of the Commonwealth.'" Id. at 263, 736 A.2d at 591, quoting Pa. R.Crim.P. 1100(g) (other citations omitted). The Hill court then reviewed the numerous pretrial proceedings held in connection with Cornell's prosecution, for which the Commonwealth was always prepared, and found that the Commonwealth acted with due diligence. Hill, supra at 263, 736 A.2d at 592.

¶ 13 Next, the court reviewed the delays caused by Cornell's co-defendant, including the filing of over 129 pretrial motions, and found that the delay in starting trial occasioned by the co-defendant was beyond the...