Com. v. Williams, No. 1013 MDA 2007

• Court: Superior Court of Pennsylvania
• Writing for the Court: Panella
• Citation: 958 A.2d 522,2008 PA Super 232
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael T. WILLIAMS, Appellant.
• Decision Date: 29 September 2008
• Docket Number: No. 1013 MDA 2007

958 A.2d 522 2008 PA Super 232 COMMONWEALTH of Pennsylvania, Appellee
v.
Michael T. WILLIAMS, Appellant. No. 1013 MDA 2007 Superior Court of Pennsylvania. Submitted February 19, 2008. Filed September 29, 2008.

[958 A.2d 523]

Cheryl A. Sobeski-Reedy, Public Defender, Wilkes-Barre, for appellant.

David W. Lupas, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

BEFORE: PANELLA, SHOGAN, and KELLY, JJ.

OPINION BY PANELLA, J.:

¶ 1 Appellant, Michael T. Williams, appeals from the judgment of sentence entered on April 30, 2007, by the Honorable Peter Paul Olszewski, Jr., Court of Common Pleas of Luzerne County. After careful review, we affirm.

¶ 2 On June 18, 2005 Williams was placed in custody after he presented police with a false identification while they were responding to a reported fight. At the police station, while the officers searched Williams incident to his arrest, they observed two individually wrapped baggies containing wafers of cocaine fall from his right sock. Two officers struggled with Williams to retrieve the evidence; they were able to retrieve one of the bags, although Williams was able to swallow the other.

¶ 3 Police then obtained a search warrant for Williams' vehicle, which was located in the parking area of the hotel at which he was staying. They used the keys obtained from him at the time of his arrest to open the vehicle. The officers removed a large speaker box in the trunk where they found a bag inside the box that contained eight individually packed knotted plastic baggies containing crack cocaine totaling 22.4 grams. Police also found one single rock of crack cocaine within a plastic bag, totaling 1.9 grams, located on the rear passenger floor behind the driver's seat. The packets of cocaine found in the car matched those found on Williams.

958 A.2d 524

¶ 4 Williams' trial was scheduled for January 12, 2006. The trial court issued writs of capias on January 9, 2006 and January 19, 2006 for Williams' failure to appear in court on two separate occasions: he had failed to comply with the conditions of bail and then he failed to appear for trial. The Luzerne County Sheriff's Department entered the writs of capias into the National Crime Information Center system and, on January 23, 2006, discovered that Williams was incarcerated in Monroe County, New York, for a violation of bail. The Sheriff's Department notified the Luzerne County District Attorney's Office of Williams' whereabouts on this date. Thereafter, on February 4, 2006, the Sheriff's Department sent a letter requesting the District Attorney's Office to apply for a Governor's Warrant to extradite Williams.

¶ 5 Detective Christopher Lynch of the Luzerne County District Attorney's Office testified, through the use of habit evidence, that he believed he requested a Governor's Warrant on October 30, 2006 after he had been advised that Williams had finished serving his sentence in New York. On December 6, 2006, the District Attorney's Office received the requisition from the Governor's Office, and on December 18, 2006, the New York Governor's Office authorized the extradition. The New York Supreme Court, Monroe County, also authorized the extradition on January 8, 2007. The Sheriff's Department returned Williams to Pennsylvania on January 18, 2007.

¶ 6 Immediately before the beginning of his scheduled trial on February 5, 2007, Williams made an oral Motion to Dismiss, claiming the Commonwealth had failed to comply with Rule 600 of the Pennsylvania Rules of Criminal Procedure. The trial court dismissed Williams' Rule 600 motion, finding that there were a sufficient number of excludable days to remain in compliance with Rule 600. Subsequent to a trial by jury on February 6, 2007, Williams was acquitted on the charge related to the 22.4 grams of cocaine in the trunk but was convicted of two counts of possession of a controlled substance,¹ tampering with or fabricating physical evidence,² and false identification to law enforcement.³ On April 30, 2007 the trial court sentenced Williams to an aggregate term of 27 to 54 months imprisonment. This timely appeal followed.

¶ 7 On appeal, Williams raises the following issues for our review:

1. Whether the Defendant's right to a speedy trial was violated?

2. Whether two counts of possession of a controlled substance, specifically cocaine, merge for sentencing purposes, when stemming from the same criminal transaction and all of the statutory elements of one offense are included in the statutory elements of the other?

Appellant's Brief, at 3.

¶ 8 In his first issue on appeal, Williams claims Rule 600 of the Pennsylvania Rules of Criminal Procedure was violated by the Commonwealth's delay in extraditing him for trial after he had fled to New York before his scheduled trial. Charges may only be dismissed under Rule 600 when the defendant is on bail and the trial does not commence within "365 days from the date on which the complaint is filed." Pa.R.Crim.P., Rule 600(A)(3), 42 PA. CONS.STAT. ANN. However, Rule 600 explicitly contemplates periods of time that

958 A.2d 525

may be excluded in calculating compliance with the rule. Rule 600 provides, in pertinent part, the following:

(C) 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 or her whereabouts were unknown and could not be determined by due diligence;

(2) any period of time for which the defendant expressly waives Rule 600; such period of delay at any state of the proceedings as results from:

(a) the unavailability of the defendant or the defendant's attorney;

(b) any continuance granted at the request of the defendant or the defendant's attorney.

Pa.R.Crim.P., Rule 600(C), 42 PA. CONS. STAT. ANN.

¶ 9 AS has been stated, the "mechanical run date is the date by which the trial must commence under Rule 600," and it is "calculated by adding 365 days ... to the date on which the criminal complaint is filed." Commonwealth v. McNear, 852 A.2d 401, 406 (Pa.Super.2004). The mechanical run date based on the June 18, 2005 criminal complaint was June 19, 2006. Accordingly, Williams' originally scheduled trial date of January 12, 2006 was well within compliance. Furthermore, where the defendant "voluntarily absented himself from his scheduled trial," such "voluntary absence from a day set for trial within Rule 1100⁴ is a waiver of that rule." Commonwealth v. Williams, 726 A.2d 389, 393 (Pa.Super.1999), appeal denied, 560 Pa. 745, 747 A.2d 368 (1999) (quotation omitted). "Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive is misplaced in a speedy trial analysis." Commonwealth v. Taylor, 340 Pa.Super. 87, 489 A.2d 853, 858 (1985). Upon waiving any claim under Rule 600, the date for trial thereafter must be "at the reasonable convenience of the court and the prosecuting authorities." Williams, 726 A.2d at 392 (internal quotation omitted).

¶ 10 At the evidentiary Rule 600 hearing conducted on February 5, 2007, the Commonwealth did not argue that Williams had waived his claims under Rule 600. However, it is well established that "the Commonwealth owed no duty to exercise due...