Com. v. Patrick
| Decision Date | 24 October 1979 |
| Citation | 487 Pa. 16,407 A.2d 382 |
| Parties | COMMONWEALTH of Pennsylvania, v. Anthony PATRICK, Appellant. |
| Court | Pennsylvania Supreme Court |
John J. Burfete, Jr., John T. Salvucci, Ronald T. Williamson, Asst. Dist. Attys., Norristown, for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.
Mr. Justice Nix, joined by Mr. Chief Justice Eagen and Mr. Justice O'Brien, filed an Opinion in Support of Remand and would remand the case for an evidentiary hearing to ascertain whether the Commonwealth had met the due diligence requirement of Criminal Procedure Rule 1100(c).
Mr. Justice Roberts, joined by Mr. Justice Manderino, filed an Opinion in Support of Discharge and would discharge the appellant, being satisfied that a Rule 1100 violation has been established on the record presently before the Court.
Mr. Justice Larsen filed a dissent wherein he would affirm the judgment of sentence.
Five of the six members of the Court hearing the matter are in agreement that the appellant is entitled to some type of relief. Since remand is a lesser remedy than is discharge, and the mandate of remand received the support of a plurality of the members of the Court, the case is remanded for an evidentiary hearing to determine whether the Commonwealth had met the due diligence requirement of Rule 1100(c). See, Aiken Industries, Inc. v. Wilson, 482 Pa. 626, 394 A.2d 497 (1978).
It is so ordered.
LARSEN, J., did not participate in this Order.
ROBERTS, J., files a statement in opposition to the per curiam order.
I agree that appellant's original counsel were ineffective for failing to move for discharge under Pa.R.Crim.P. 1100. But I cannot agree that the Commonwealth is now entitled to a second chance to prove that an extension of the trial date would have been proper. Having failed to comply with the basic requirements of Rule 1100, the Commonwealth has forfeited its opportunity to claim the benefits of the rule and is precluded from any belated attempt to correct its error.
The Commonwealth was granted an extension of the date for commencement of appellant's trial under Pa.R.Crim.P. 1100(c). 1 This rule requires that the Commonwealth notify the defendant or his counsel that an extension is being sought, and provides for a hearing. Nevertheless, although appellant was represented by counsel, neither appellant nor his counsel of record was notified and no hearing was held.
Moreover, Rule 1100(c) is clear that the only basis for an extension is an affirmative showing by the Commonwealth that the Even at this late stage, no additional evidence is offered to suggest that an extension of the trial date was necessary, and the Commonwealth does not allege that it could prove such a claim. Accordingly, I would reverse the judgment of sentence and direct that the appellant be discharged. 2
trial cannot be commenced within the original time [487 Pa. 19] period "despite due diligence by the Commonwealth." The basis for the extension granted here was the untrue averment in the Commonwealth's boilerplate petition that appellant was not in custody. The Commonwealth now concedes that, at the time the extension was sought, appellant had been in custody for two weeks. The record plainly establishes that the Commonwealth's conduct was totally lacking in due diligence.
MANDERINO, J., joins in this opinion.
STATEMENT OF MR. JUSTICE ROBERTS IN OPPOSITION TO THE "PER
CURIAM ORDER"
I am in total disagreement with what is labeled the "per curiam order." Three justices of a six-member court now purport both to express the views of this Court and to authorize the mandate of remand. These three justices now submit what they characterize as an "order." Any valid "order," it must be obvious, would require the votes of at least four justices of the six justices who participated in this case.
Today's "order" is based on the unusual notion of "interpreting" two votes for discharge as being, instead, votes in support of remand. This interpretation is utterly inappropriate. Mr. Justice Manderino and this writer specifically state their view that appellant should be discharged. These two votes support discharge and not any disposition granting lesser relief.
It must be obvious that the labeled "per curiam order" is only an appendage to the opinion of the three justices who vote for remand and represents only the views of those three justices. It is in no sense the view of a majority of this six-member Court and must not be regarded as such.
MANDERINO, J., also dissents from the issuance of the "per curiam order."
Appellant, who was convicted of two counts of violating the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-101 Et seq. (1977), sought allocatur from this Court after the Superior Court affirmed his conviction Per curiam. On April 22, 1976, we granted allocatur. In an appeal to this Court, appellant was represented by the same counsel who had represented him in the Superior Court, and counsel was also a member of the same defender's office which had represented appellant at trial. Because appellant raised issues of trial and appellate counsel's effectiveness, the grant of the petition for review was limited to the question whether a public defender may challenge the effectiveness of a colleague from the same office. We answered in the negative, Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978), and remanded for appointment of new counsel. The trial court complied with that mandate, and new counsel represents appellant in the instant appeal.
Appellant's basic contention is that trial and former appellate counsel were ineffective for failing, respectively, to preserve properly and to raise certain claims that appellant was entitled to a discharge under Pennsylvania Rule of Criminal Procedure 1100. The trial court held that the claim was waived for failure to present it in writing pre-trial, relying upon rules 304, 305 (now 306) and 1100(f). Due to the date of the criminal episode, the two hundred and seventy (270) day limit applies to this appeal. Pa.R.Crim.P. 1100(a)(1). The relevant docket entries are as follows:
Nov. 14, 1973 - complaint filed (Rule 1100 starts to run)
Dec. 5, 1973 - arrest
Dec. 13, 1973 - released on bail ($500)
Feb. 13, 1974 - indicted and trial date set for July 18
1974
Jul. 18, 1974 - appellant fails to appear for trial
Aug. 9, 1974 - bench warrant issued
Aug. 11, 1974 - 270 day period expires (without consideration
of any possible exclusions)
Aug. 14, 1974 - appellant arrested on bench warrant
fails to make $10,000 bail, and is
incarcerated
Aug. 28, 1974 - Rule 1100(c) petition is filed and
granted for 90 day extension
Oct. 22, 1974 - Trial begins
Two of appellant's substantive contentions under rule 1100 have no merit. First, the contention that the Commonwealth did not file its rule 1100(c) petition for extension prior to the expiration of the rule's mandatory period ignores the fact that appellant failed to appear for the July 18th trial date. Appellant was at large and therefore unavailable for twenty eight (28) days (July 18 to August 14). Thus, although the petition for extension was filed on the two hundred and eighty-seventh (287th) Chronological day, when the twenty-eight (28) days are excluded in accordance with rule 1100(d)(1), it is clear that the Commonwealth's petition was filed on the two hundred and fifty-ninth (259th) Constructive day, well within the period set by the rule. See Commonwealth v. Nickol, 476 Pa. 75, 381 A.2d 873 (1977); Commonwealth v. Shelton, 469 Pa. 8, 15, 364 A.2d 694 (1976); Commonwealth v. Brown, 251 Pa.Super. 179, 380 A.2d 436 (1977), Allocatur denied; Commonwealth v. Kidd, 251 Pa.Super. 140, 380 A.2d 416 (1977).
Second, the assertion that letter notice to appellant informing him of the original trial date was insufficient due his alleged change of address is similarly unpersuasive. Notice was sent to appellant's address as listed on his bail certificate, and the burden is upon defendant on bail to keep the Commonwealth apprised of changes of address. Failure to do so is itself a breach of a condition of bail. Pa.R.Crim.P. 4013; See Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). Appellant's assertion that he notified his probation officer of his address change, even if true, would not satisfy the requirement of rule 4013(c), which mandates such notice to be given to the "issuing authority, the clerk of courts, the district attorney, and court bail agency . . . ." Pa.R.Crim.P. 4013(c). Because neither of the above contentions was meritorious, counsel cannot be deemed ineffective for failing to raise them. See Commonwealth v. Sullivan, 472 Pa. 129, 163, 371 A.2d 468 (1977); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974).
Appellant's final claim is that trial counsel was ineffective for failing to challenge the procedural propriety of the rule 1100(c) hearing and the court's grant of the requested extension. Appellant contends and appellee concedes that neither appellant nor his attorney was given notice of the Commonwealth's petition to extend time for trial; it is also undisputed that there was no hearing on the petition. Both notice and a hearing are clearly required by rule 1100(c). A further problem is that the Commonwealth's petition was of the boiler-plate variety, alleging due diligence and averring that defendant "has not yet been apprehended." See Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976). However, the docket shows that two weeks Before the filing and grant of extension, appellant was arrested on the...
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