Com. v. Taylor

• Decision Date: 08 March 1985
• Citation: 489 A.2d 853,340 Pa.Super. 87
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. John H. TAYLOR, Appellant.
• Court: Pennsylvania Superior Court

Page 853

489 A.2d 853

340 Pa.Super. 87

COMMONWEALTH of Pennsylvania, Appellee, v. John H. TAYLOR, Appellant.

Superior Court of Pennsylvania.

Submitted May 17, 1984.

Filed March 8, 1985.

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before CAVANAUGH, POPOVICH and HESTER, JJ.

CAVANAUGH, Judge:

This is an appeal from the judgment of sentence entered on February 9, 1982, in the Court of Common Pleas of Allegheny County by the Honorable Samuel Strauss. Appellant was sentenced to a term of imprisonment of not less than two years or more than four years for violating the Uniform Firearms Act, 18 Pa.C.S. § 6101 et seq. Appellant avers on appeal 1) that the trial court erred in denying appellant's pre-trial motion to dismiss pursuant to Pa.R.Crim.P. 1100, and 2) that the trial court erred in denying appellant's request to suppress alleged statements made by him to the police at the time of his arrest because the Commonwealth failed to provide him the mandatory discovery required under Pa.R.Crim.P. 305(B)(1)(b). We affirm.

Appellant first contends that the trial court erred in denying his pre-trial motion to dismiss and bases this contention on the Commonwealth's alleged failure to exercise due diligence in bringing him to trial within 180 days as required by Pa.R.Crim.P. 1100. The pertinent facts relating to this contention are not in dispute.

Appellant was arrested on August 29, 1980, and charged with violating the Uniform Firearms Act, 18 Pa.C.S. § 6101 et seq. Appellant was subsequently incarcerated in a federal penitentiary in Morgantown, West Virginia, on an unrelated charge. ¹ Under Rule 1100(a)(2), ² the trial was to commence within 180 days from August 29, 1980, the date on which the complaint against the appellant was filed, or February 25, 1981. Trial was listed to commence on January 29, 1981, well within the 180 day limit. However, the trial did not commence on that day because appellant had escaped from the federal correctional facility in Morgantown, West Virginia on December 25, 1980. At the time of his escape, appellant knew that trial was listed for January 29, 1981. He then fled to Canada where he was apprehended on January 15, 1981. It was not until February 13, 1981, however, that he was returned to federal custody at Buffalo, New York. He was not returned to Pennsylvania or to the federal institution in West Virginia where the Commonwealth previously knew it had access to him. On February 6, 1981, the Commonwealth filed a petition to extend the time to commence trial pursuant to Rule 1100(c). On February 11, 1981, defense counsel filed an answer opposing the grant of this petition. The order was granted by the Honorable Ronald E. Dauer on February 19, 1981. This order stated that appellant "shall be tried not later than 45 days after [his] return to Pennsylvania."

On June 23, 1981, the Commonwealth filed a Writ of Habeas Corpus ad prosequendum requesting the extradition of appellant from Buffalo, New York, to stand trial in Pennsylvania. Pre-trial proceedings commenced on July 29, 1981, and trial commenced the following day before the Honorable Samuel Strauss, clearly within the 45 days permitted by the order of February 19, 1981. Appellant was found guilty, and this appeal followed.

Appellant argues that the Commonwealth owed a duty to exercise due diligence to bring him to trial but that instead it waited several months from the time the extension order was granted to do so ³ even though it was within the Commonwealth's power to procure his return prior to that time. Appellant contends that the Commonwealth's duty to exercise due diligence should be implied or read into Judge Dauer's order of February 19, 1981. The Commonwealth, on the other hand, argues that it had no duty to exercise due diligence because the order did not explicitly require it.

Under Rule 1100, the Commonwealth has 180 days in which to bring the defendant to trial. However, Rule 1100 is tolled under the following circumstances:

Rule 1100

. Prompt Trial

(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.

(2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.

(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court's inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.

(4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court's business, and the record shall so indicate.

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

(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.

Rule 1100(c)(3) and (d)(1) expressly require that the Commonwealth exercise due diligence to bring the defendant to trial in order to toll the Rule. ⁴ Although Rule 1100(d)(3)(i) (the unavailability of the defendant or his attorney) does not explicitly require due diligence, ⁵ it has been held that a showing of due diligence by the Commonwealth is necessary before a defendant will be labelled "unavailable." ⁶ We shall first examine whether the order in question was properly granted.

The Commonwealth is under no duty "to file a petition for an extension of time when the delay is caused by the unavailability of the defendant", but rather, the extension is "automatic". Commonwealth v. Wright, 260 Pa.Super. 341, 394 A.2d 582 (1978); see also Commonwealth v. Richbourgh, 246 Pa.Super. 300, 369 A.2d 1331 (1977); Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Williams, 284 Pa.Super. 125, 425 A.2d 451 (1981). But c.f. Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982) (a petition to extend time was not deemed improper though appellant was said to be "unavailable").

In the instant case, it may be said that appellant was unavailable when the Commonwealth petitioned for the extension. He had been missing from the correctional facility in West Virginia for over a month, and had not as yet been turned over to federal custody. There were also charges pending against him in Canada and West Virginia which would militate against his availability to stand trial here at the Commonwealth's convenience. The Commonwealth's petition averred appellant's unavailability and Judge Dauer apparently accepted the veracity of this averment when he granted the order.

We do not fault the Commonwealth or Judge Dauer for erring on the side of caution, however, in respectively seeking and granting the extension order in question. At the time the Commonwealth petitioned for the extension, appellant had already been apprehended in Canada and there may well have been a question as to whether he would be "available" in the near future. A defendant's right to a speedy trial should never be dispensed with lightly, and so, rather than dismiss the order as "improperly granted", we believe that the Commonwealth exhibited laudable caution in petitioning for the extension in this instance.

Having thus concluded that the order was not improperly granted, we further conclude that the duty to exercise due diligence should not be implied or read into it. We do not, however, base this decision solely on an explicit reading of the words of the order itself. While it was permissible for the Commonwealth to rely on an explicit reading of the order and to thus conclude that it owed no duty to exercise due diligence, our holding would be the same even if the order had never been granted. The underlying reason that the Commonwealth owed no duty to exercise due diligence was that the appellant in this case committed a willful act in dereliction of a serious societal duty after having been subjected to process of court. A sound reading of the cases decided under Rule 1100 compels this conclusion and our explanation follows.

In analyzing whether an appellant's speedy trial rights have been violated for failure to bring him to trial within 180 days, we must seek guidance in authority beyond the nearest desk calendar. One case of recent vintage is Commonwealth v. Crowley, 502 Pa. 393, 402, 466 A.2d 1009, 1014 (1983), where Justice Hutchinson, writing for the majority, stated: "The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice." ⁷

Turning to the instant case, the appellant was incarcerated in a federal correctional facility, knew that society ordained that he stay there, knew the date of his trial listing, but escaped nonetheless. His failure to appear for trial on the date set is strongly analogous to the situation where a defendant is released on bail and is duly notified of the date of his arraignment, but fails to...