Com. v. Johnson
| Decision Date | 10 June 1991 |
| Citation | 405 Pa.Super. 363,592 A.2d 706 |
| Parties | COMMONWEALTH of Pennsylvania v. Robert JOHNSON, Appellant. |
| Court | Pennsylvania Superior Court |
Paul George, Philadelphia, for appellant.
John K. McDonald, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. The issue in this case is whether the lower court erred in denying appellant's motion to dismiss under criminal procedure rules 1100 and 6013. Pa.R.Crim.P., Rules 1100 and 6013, 42 Pa.C.S.A. We find that the lower court abused its discretion in denying the motion.
The relevant facts are as follows: On October 30, 1989, appellant was convicted in the Philadelphia Municipal Court of resisting arrest and simple assault. Under Rule 6006(a) of the Pennsylvania Rules of Criminal Procedure, 42 Pa.C.S.A., appellant appealed to the Common Pleas Court of Philadelphia on November 13, 1989. According to Rule 6013(g) of the criminal rules, a trial de novo in the court of common pleas on appeal from Municipal court shall commence within ninety (90) days after the notice of appeal is filed from Municipal Court. Pa.R.Crim.P., Rule 6013(g), 42 Pa.C.S.A. Thus, the run date for commencement of trial in this case was February 13, 1990.
On February 8, 1990, at appellant's first trial listing, the Commonwealth requested a continuance because the complainant police officer had not been subpoenaed. The Commonwealth also had not located the trial file for the case. The case was therefore continued until March 15, 1990. On March 12, 1990, appellant filed a written motion to dismiss citing Pa.R.Crim.P., Rules 1100 and 6013, 42 Pa.C.S.A. At the second trial listing on March 15, 1990, the Commonwealth was again unprepared to proceed to trial because the subpoena for the police officer witness had been sent to the wrong police district. The Commonwealth requested a continuance and appellant moved for dismissal.
On April 30, 1990, the trial court denied appellant's motion to dismiss, and after a bench trial, appellant was convicted of resisting arrest. Appellant's post-verdict motions were denied and he filed this timely appeal. On appeal, appellant raises one issue: whether the Commonwealth failed to exercise due diligence in bringing him to trial within the time period set forth in Rule 6013(g).
Rule 6013(g) of the Pennsylvania Rules of Criminal Procedure provides:
(g) A trial de novo in the Court of Common Pleas shall commence within a period of ninety (90) days after the notice of appeal from the Municipal Court is filed. In all other respects the provisions of Rule 1100 shall apply to such trials in the Court of Common Pleas.
Pa.R.Crim.P., Rule 6013(g), 42 Pa.C.S.A. Rule 1100 of the Rules of Criminal Procedure is implicated by Rule 6013(g). The rule sets forth time periods within which trial is to commence in the ordinary court case, i.e., one which is not appealed to the court of common pleas from the Municipal Court as in the case sub judice. See Pa.R.Crim.P., Rule 1100(a)(2) and (a)(3), 42 Pa.C.S.A. (180 days to commence trial where defendant is incarcerated and 365 days to commence trial where defendant is at liberty on bail).
Rule 1100 provides for certain periods of time to be excluded in determining the period for commencement of trial:
(1) the period of time between the filing of the written complaint and the defendant's arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of the defendant or his attorney.
Pa.R.Crim.P., Rule 1100(c). The rule also provides that any defendant who is held in pre-trial incarceration for a period exceeding 180 days minus the excludable time specified in Rule 1100(c), is entitled upon petition to immediate release on bail. Id., Rule 1100(e). If a defendant continues on bail after the expiration of 365 days and trial has not commenced, the defendant may apply to the court for an order dismissing the charges. Id., Rule 1100(g). The rule then provides in regard to a motion to dismiss for violation of the rule that:
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 a date certain. If, on any successive listing of the case, the Commonwealth is not prepared to proceed to trial on the date fixed, the court shall determine whether the Commonwealth exercised due diligence in attempting to be prepared to proceed to trial. If, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.
In ruling on the motion to dismiss, the lower court found that the Commonwealth had exercised due diligence in attempting to bring appellant to trial and had justifiable reasons for seeking extensions. The court also held that the delay in this case was not of such a magnitude as to be "presumptively prejudicial." See Commonwealth v. Africa, 524 Pa. 118, 569 A.2d 920 (1990). Continuing with this line of reasoning, the lower court found nothing in the record that would demonstrate any prejudicial effect on the defendant because of the delay.
The determination of whether to grant an extension of time for commencement of trial is within the realm of discretion of the trial court. Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983). Absent an abuse of that discretion, the grant of extension will not be overturned on appeal. Id. In evaluating a petition for extension, the test for determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. Commonwealth v. Brawner, 381 Pa.Super. 265, 553 A.2d 458 (1989), allocatur denied 522 Pa. 617, 563 A.2d 886 (1989). It is the Commonwealth's burden to prove its due diligence in the prosecution of a defendant. COMMONWEALTH v. Jones, 314 Pa.Super. 515, 461 A.2d 276 (1983). When reviewing a trial court's decision as to whether the Commonwealth has met its burden of proving due diligence, we consider only the evidence presented by the Commonwealth and so much of the evidence of the defendant as remains uncontradicted. Commonwealth v. Brawner, 381 Pa.Super. at 271, 553 A.2d at 460-61.
Recently, the Pennsylvania Supreme Court addressed the subject of the due diligence of the Commonwealth in bringing a defendant to trial in Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990). In that case, the supreme court held that the Commonwealth had failed to act with due diligence despite the Commonwealth's contention that because of the "term" system of criminal court in Lancaster County, it would be unduly harsh to require the district attorney's office to monitor cases and arraignment dates to assure that no speedy trial problem arose. Under the "term" system, the district justices notified defendants as to the arraignment dates on which they were to report. Then, the defendant's case would be assigned to the next criminal trial "term" following his arraignment date. The supreme court found the Commonwealth's contention that it would be unfair to require them to monitor the Rule 1100 status of cases under this system "sheer nonsense," and held that due diligence imposes on the government the duty to employ simple recordkeeping systems in these circumstances. Id. at ----, 584 A.2d at 905-06. The court found the delay in the Browne case had to be "fully attributed" to the Commonwealth because of the failure of the district attorney's office to properly track the case. Id. at ----, 584 A.2d at 906.
In Browne, the supreme court also admonished this court for what the supreme court termed an inclination on the part of Superior Court "to accept any and every excuse for failure to bring a criminal case to trial within the period prescribed by Rule 1100." Commonwealth v. Browne, supra, 526 Pa. at ----, 584 A.2d at 905. Further, the court noted that "this case [Browne ] presented the opportunity to prevent further emasculation of Rule 1100." Id.
The Commonwealth has been held to have failed to have acted with due diligence in circumstances similar to Browne. In Commonwealth v. McCutcheon, 339 Pa.Super. 8, 488 A.2d 281 (1985), a panel of this court held that the Commonwealth's failure to maintain a proper recordkeeping system precluded a finding of due diligence in regard to the Commonwealth's petition to extend. In McCutcheon, after the criminal complaint had been filed against appellant in March, 1982, and after a preliminary hearing in his case had been held, a member of the district justice's staff misfiled the papers in his case in a "closed file." When appellant's counsel, in November, 1982, saw the police officer who had filed the complaint, he inquired as to the status of the case. The police officer contacted the District Attorney's office and learned that the papers in the case had never been received from the district justice. A member of the district attorney's office then obtained the papers from the district justice and filed the complaint and transcript. Then, on November 15, 1982, the Commonwealth filed a petition for an extension of time under Rule 1100. Id. at 11, 488 A.2d at 282-83. 1
The court in McCutcheon found that although the Commonwealth had clearly exercised due diligence upon learning that the papers in appellant's case had been misfiled by the district justice, there was no evidence of record that due diligence had...
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