Com. v. Woods

• Decision Date: 16 August 1995
• Citation: 663 A.2d 803,444 Pa.Super. 321
• Parties: COMMONWEALTH of Pennsylvania v. Allen WOODS, Appellant.
• Court: Pennsylvania Superior Court

Page 803

663 A.2d 803

444 Pa.Super. 321

COMMONWEALTH of Pennsylvania v. Allen WOODS, Appellant.

Superior Court of Pennsylvania.

Argued June 8, 1995.

Filed Aug. 16, 1995.

Mark P. Much, Media, for appellant.

Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellee.

Before McEWEN, TAMILIA and KELLY, JJ.

KELLY, Judge.

In this appeal, we are called upon to determine whether the trial court must dismiss charges against an appellant where the Commonwealth failed to bring the appellant to trial within one hundred, eighty days pursuant to the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101, or, whether the time limitation may be tolled by the appellant's inability to stand trial due to his continuous presence in federal custody. We hold that where the Commonwealth has made diligent efforts to retrieve an appellant from federal custody, the one hundred, eighty day statute of limitations is tolled until such time as the appellant reaches the promised destination where the Commonwealth may, actually, take him into physical custody.

Appellant, Allen Woods, appeals from his judgment of sentence entered on May 13, 1994, in the Court of Common Pleas, Delaware County, following a non-jury trial before the Honorable Joseph F. Battle, where appellant was convicted of robbery, ¹ theft, ² receiving stolen property, ³ and criminal conspiracy. ⁴ We affirm.

On June 28, 1991, appellant was arrested and charged with robbery, theft, simple assault, ⁵ receiving stolen property and criminal conspiracy. On September 21, 1991, at his preliminary hearing, appellant was bound over on all charges. Arraignment was set for October 24, 1991 in Delaware County. (Trial Court Opinion, 11/17/94 at 1). Appellant did not appear, and a bench warrant was issued. The Commonwealth had no indication as to his whereabouts until July 16, 1993, when a detainer action letter was received from the U.S. Department of Justice showing that appellant was in custody at Federal Corrections Institution (FCI), Oxford, WI, serving a federal sentence. (Id. at 1). The Delaware County District Attorney's Office responded to the communique on July 27, 1993, indicating that appellant was a fugitive from outstanding Pennsylvania charges. (N.T. 2/16/95 at 6).

On August 26, 1993, the Delaware County District Attorney's Office received appellant's written request for final disposition of the charges, triggering the provision of the Interstate Agreement on Detainers requiring a prisoner to be brought to trial on the designated charges no later than one hundred, eighty days from receipt of request by the District Attorney's Office. At that time, FCI authorities in Wisconsin assured Delaware County that appellant would be back in Pennsylvania at FCI Allenwood in "one or two weeks." (Id. at 8). On September 30, 1993, the District Attorney's Office contacted FCI Allenwood and was informed that appellant was "on a bus, plane or train." (Id. at 9). On November 4, 1993, the District Attorney's Office again contacted Allenwood and this time was told that appellant was in FCI, El Reno, OK (a "clearinghouse" for transferring federal prisoners). (Id. at 9). The District Attorney's Office immediately instituted paperwork to secure the return of appellant to Delaware County. On November 16, 1993, appellant arrived at Allenwood. (Id. at 10). He was returned to Delaware County Prison on January 27, 1994. (Id. at 11). On April 13, 1994, appellant waived his right to a jury trial and was convicted by Judge Battle of robbery, theft, receiving stolen property, and criminal conspiracy. Judge Battle sentenced appellant to a term of two to four years imprisonment for robbery ⁶ to be served concurrently with his fifteen year federal sentence and, for criminal conspiracy, six to twenty-three months imprisonment, to be served consecutively to the federal sentence. (Trial Court Opinion, 11/17/94 at 2).

On appeal, appellant raises two questions ⁷ for our review:

1. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION TO DISMISS THE CHARGES BECAUSE THE COMMONWEALTH FAILED TO BRING [APPELLANT] TO TRIAL WITHIN 180 DAYS IN ACCORDANCE WITH THE INTERSTATE COMPACT ON DETAINERS?

2. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO FILE A MOTION TO DISMISS FOR A VIOLATION OF THE INTERSTATE AGREEMENT ON DETAINERS?

(Appellant's Brief at 3).

The Interstate Agreement on Detainers, enacted by Pennsylvania in 1976, states in part:

Article III

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

42 Pa.C.S.A. § 9101(III)(a).

Both appellant and the Commonwealth stipulate that the Office of the District Attorney of Delaware County received appellant's written request for final disposition on August 26, 1993. Appellant argues that Delaware County was therefore required to commence his trial on or before February 22, 1994. Appellant further asserts that the Commonwealth did not file for a continuance, and yet did not commence trial until April 13, 1994, exceeding the one hundred, eighty day statute of limitations by forty-nine days. Appellant claims that this was a breach of procedure and necessitated a dismissal of the charges against him. We disagree.

The Interstate Agreement on Detainers is consistent with Rule 1100 of the Pennsylvania Rules of Criminal Procedure in its concern with bringing offenders to a speedy trial. While the Interstate Agreement on Detainers requires that a prisoner detained in another state's jurisdiction be brought to trial within one hundred, eighty days of the Commonwealth's receipt of the prisoner's request for final disposition, Rule 1100 (not specifically addressing extradition) requires trial to commence within one hundred, eighty days of the date on which the complaint is filed.

Both statutes, however, have identified one hundred, eighty days as an appropriate limit for a "speedy trial" and both have provisions for exceptions to the linear running of the one hundred, eighty days. Article (VI)(a) of the Interstate Agreement on Detainers states:

(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.

42 Pa.C.S.A. § 9101(VI)(a) (emphasis added). Rule 1100 states:

(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 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. 1100(c) (emphasis added).

This Court has been consistent, whether under the Interstate Agreement on Detainers or Rule 1100 cases, in acknowledging that "the period of time between an accused's waiver of extradition and his subsequent return to Pennsylvania may be held ultimately excludable if the Commonwealth demonstrates due diligence in effectuating that return," Commonwealth v. Martin, 306 Pa.Super. 108, 115, 452 A.2d 238, 241 (1982), and in designating this period of time as a period of "unavailability of the defendant" as specified in Pa.R.Crim.P. 1100(c)(3)(i), and a period when defendant is "unable to stand trial." 42 Pa.C.S.A. § 9101(VI)(a).

Due diligence is a "fluid concept" which must be determined on a "case by case" basis. Commonwealth v. Lloyd, 370 Pa.Super. 65, 81, 535 A.2d 1152, 1160 (1988), allocatur denied, 518 Pa. 637, 542 A.2d 1367 (1988). But it is well settled that a "defendant incarcerated in another jurisdiction will be deemed 'unavailable' for the period of time during which his presence, despite the Commonwealth's duly diligent efforts, cannot otherwise be obtained." Id. (citing Commonwealth v. Maxwell, 355 Pa.Super. 575, 513 A.2d 1382 (1986), appeal dismissed, 524 Pa. 53, 569 A.2d 328 (1989)). What is more, "in addition to any other circumstances precluding the availability of the defendant ... the defendant should be deemed unavailable for the period of time during which ... a responding jurisdiction delayed ... extradition." Id. (citing Commonwealth v. DeMarco, 332 Pa.Super. 315, 481 A.2d 632 (1984)). When it has been determined that the Commonwealth adhered to procedures requested by the sending jurisdiction and has properly relied on that jurisdiction's assertions, the Commonwealth will have...