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HomeMy WebLinkAbout99-2243 CriminalCOMMONWEALTH Vo JOHN E. STONE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-2243 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., December 15,2000. In this driving under the influence case, Defendant filed a Rule 1100 motion to dismiss prior to trial. The motion was denied.~ Defendant proceeded to trial, was found guilty, was sentenced,2 and has filed an appeal from the judgment of sentence to the Pennsylvania Superior Court? Among the matters complained of on appeal by Defendant is the denial of his motion to dismiss under Rule 1100.4 This opinion is written in support of the denial of the motion, pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On April 4, 1999, a criminal complaint was filed against Defendant, charging him with driving under the influence.5 Defendant was placed on his own recognizance with respect to the charge.6 His jury trial commenced on July 19, ~ The motion was denied following a hearing on July 17, 2000, by the writer of this opinion. 2 Defendant was found guilty following a jury trial on July 20, 2000. He was sentenced by the Honorable Edgar B. Bayley of this court to the mandatory minimum sentence applicable to a third offense of driving under the influence, on August 29, 2000. 3 Defendant's notice of appeal was filed on September 29, 2000. The timeliness of Defendant's appeal is beyond the scope of this opinion. 4 Defendant's Brief Statement of Matter Complained upon on Appeal, para. II, filed October 25, 2000. 5 N.T. 10-11, Hearing, July 17, 2000 (hereinafter N.T. ). Counsel stipulated that this date was to be used for purposes of commencement of the time period under Pennsylvania Rule of Criminal Procedure 1100. Id. 6 See Current Bail Information Form, filed October 15, 1999. The continuation of Defendant's bail status pending disposition of his appeal from the judgment of sentence was authorized by the sentencing judge. Order of Court, August 24, 2000 (Bayley, J.). 2000.7 A total of 472 days thus elapsed between the filing of the complaint and the trial. Of this total, a defense-requested continuance consumed a 62-day period, from January 4, 2000, to March 6, 2000.8 If this period is excluded from the calculation,9 a total of 410 days elapsed between the filing of the complaint and the trial. Based upon a putative violation of Defendant's right to be tried within 365 days of the filing of the complaint under Pennsylvania Rule of Criminal Procedure 1100,1° Defendant filed the motion to dismiss which is the subject of this opinion, on July 12, 2000.~ A hearing was held on Defendant's motion to dismiss on July 17, 2000. The record and evidence at the hearing revealed, in the court's view, that the Commonwealth had exercised due diligence and that the circumstances occasioning the delay in Defendant's trial had been beyond its control.12 An order was issued denying Defendant's motion and listing the case for trial during the week of July 17, 2000.13 The record showed that Defendant was formally arraigned on November 19, 1999. The evidence demonstrated that on December 17, 1999, Defendant filed an omnibus pretrial motion, in the form of a motion to quash the information and a motion to suppress.TM The motion to quash the information was based upon the theory that the information lacked sufficient particularity with respect to the 7 [N.T. 3, Trial, July 19-20, 2000.] 8N.T. 11-12. 9 See Pa. R. Crim. P. 1100(C)(3)(b). lo See Pa. R. Crim. P. 1100(A)(1)(3). it See Pa. R. Crim. P. 1100(G). ~2 See Pa. R. Crim. P. 1100(G). ~3 Order of Court, July 17, 2000. Criminal term of court had begun on July 17, 2000, which was the day of the hearing on Defendant's motion, and counsel stipulated that an order which permitted the case to be tried within that week of the term would be satisfactory in terms of "a date certain" under Pennsylvania Rule of Criminal Procedure 1100(G). N.T. 81-82. 14 Defendant's Omnibus Pretrial Motion, filed December 17, 1999. 2 offense charged to comport with various provisions of the Pennsylvania and federal constitutions.~5 The motion to suppress was based upon an allegedly unlawful arrest of Defendant, inter alia.~6 An answer was promptly filed by the Commonwealth on December 29, 1999.~7 Although properly filed,~8 Defendant's omnibus pretrial motion unfortunately ~vas at some point mistaken by the court or clerk of courts for a copy of a similar motion filed by Defendant's counsel on Defendant's behalf in a second case, and was placed in the official file of the second case.19 The result was that no order was initially entered by the court scheduling a hearing on the motion? The January, 2000, trial term commenced on January 18, 2000. At a pretrial conference on January 4, 2000, Defendant's counsel requested and received a continuance of trial until the March, 2000, trial term, commencing on March 6, 2000.21 However, the pendency of Defendant's omnibus pretrial motion precluded trial at that time. On March 6, 2000, after discovering the filing inadvertence referred to above and informing the District Attorney's Office,22 Defendant's counsel filed a motion for a hearing on the omnibus pretrial motion.23 The motion for a hearing correctly noted that the omnibus pretrial motion had been located "in a separately 15/d. 16Id' ~7 Commonwealth's Answer to Defendant's Motion To Dismiss, filed December 29, 2000. 18 N.T. 69. ~9 N.T. 67-70. 20 N.T. 25-26. 2~ See Order of Court, January 4, 2000. 22 N.T. 67-70. 23 Defendant's Motion for Hearing on Omnibus Pretrial Motion for Relief, filed March 6, 2000. 3 captioned file for [Defendant, in another case]''24 and that a hearing had not been scheduled by the court "due to inadvertence and/or a filing mistake.''25 Upon receipt of this motion for a hearing, the Honorable Kevin A. Hess scheduled a hearing on Defendant's omnibus pretrial motion for March 28, 2000.26 At this proceeding, Defendant withdre~v his motion to suppress27 and briefs were requested on the issues raised in the motion to quash the information? On May 3, 2000, Judge Hess issued an order, accompanied by an opinion, denying Defendant's motion to quash the information. The period consumed by the pendency of Defendant's omnibus pretrial motion, from its filing date of December 17, 1999, until its disposition date of May 3, 2000, was 138 days, (Within this period was the 62-day defense-requested continuance.) The next criminal trial term was scheduled for the week of May 8, 2000.29 Upon receipt of a copy of the order denying Defendant's motion to quash the information, an attorney in the Cumberland County District Attorney's Office notified the Court Administrator, whose function it was to schedule trials,3° to schedule Defendant's case for trial during the week of May 8, 2000.31 However, the case was not reached during the May, 2000, trial term, and, in fact, it apparently was not scheduled for trial during that term by the court administrator? 24 Id., para. 4. 25 Id., para. 6. 26 Order of Court, March 16, 2000. 27 See N.T. 67. 28 Order of Court, March 28, 2000. Defendant's brief was submitted to the court on April 17, 2000. N.T. 44. 29 N.T. 46. 30 N.T. 47 3~ N.T.62, 71-72. 32 N.T. 72. This case is an example of the law of converging problems. 4 At the conclusion of the hearing on Defendant's motion to dismiss, the court found itself of the view that the Commonwealth had exercised due diligence in all respects in connection with Defendant's omnibus pretrial motion and the timing of Defendant's trial, and that the circumstances occasioning the postponement were beyond the Commonwealth's control. If only the period consumed by the defense-requested continuance is excluded for purposes of a calculation under Pennsylvania Rule of Criminal Procedure 1100, the 365-day run date in Defendant's case was June 4, 2000. If the period during which Defendant's omnibus pretrial motion was pending is excluded for purposes of the calculation,33 the 365-day run date in Defendant's case was August 24, 2000.34 As noted, Defendant's trial actually commenced on July 19, 2000. DISCUSSION Pennsylvania Rule of Criminal Procedure 1100 was adopted by the Pennsylvania Supreme Court to reduce the backlog of criminal cases in the trial courts and to provide an objective standard for protection of defendants' speedy trial rights. Commonwealth v. Crowley, 502 Pa. 393, 398-99, 466 A.2d 1009, 1012 (1983). "Rule 1100 serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society." Id. at 399,466 A.2d at 1012. Under Rule 1100(A)(3), "[t]rial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall 33 I.e., the period between the filing date, December 17, 1999, and the disposition date, May 3, 2000, a period of 138 days. 34 For purposes of this calculation, the five-day period during which Defendant's motion to dismiss under Rule 1100 was pending (from its filing date of July 12, 2000, until its disposition date of July 17, 2000) has also been excluded. See Commonwealth v. Williams, 726 A.2d 389, .. (Pa. Super. Ct. 1999). 5 commence no later than 365 days from the date on which the complaint is filed." Rule 1100 provides further as follows: For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant's attorney may apply in the court for an order dismissing the charges with prejudice on the ground that this rule has been violated .... 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 ... it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant. Pa. R. Crim. P. 1100(G). Notwithstanding the foregoing general rule, under certain circumstances a defendant may be tried more than 365 days after the filing of the complaint in the See, e.g., Commonwealth v. Hill, 558 Pa. 238, 736 A.2d 578 (1999) (742 case. days). In the present case, based upon the foregoing facts as found by the court, it is believed that the order denying Defendant's motion to dismiss under Rule 1100 can be justified on two theories. The first is premised solely upon excludable time and the second upon excludable time and a minimal period of judicial delay. Excludable time only. With respect to excludable time periods, it is clear from Rule 1100 that a period of"unavailability of the defendant" is to be excluded in a calculation of the 365-day period. Pa. R. Crim. P. 1100(C)(3)(a). Implicit in a defendant's omnibus pretrial motion is a request that he or she not be tried pending disposition of the motion. Pa. Super. 29, 32, 548 A.2d 260, 261 (1988). limitations, a defendant who has filed a unavailable for trial during the pendency of the See Commonwealth v. Reeves, 378 In this sense, and subject to certain pretrial motion may be deemed motion, and the period of 6 pendency is to be excluded in a calculation of the 365-day period. Commonwealth v. Hill, 558 Pa. 238, 736 A.2d 578 (1999). [H]owever, the mere filing of a pretrial motion by a defendant does not automatically render him unavailable. Rather, a defendant is only unavailable for trial if a delay in the commencement of trial is caused by the filing of the pretrial motion. If a delay is created, in order to establish that the delay is excludable, the Commonwealth must demonstrate by a preponderance of the evidence, that it exercised due diligence in opposing or responding to the pretrial motion. Commonwealth v. Hill, 558 Pa. 238, 254, 736 A.2d 578, 587 (1999) (citations omitted). Also excludable, by a similar process of reasoning, in a calculation under Rule 1100 is the period of time during which a defendant's motion for dismissal pursuant to Rule 1100 is pending. See Commonwealth v. Williams, 1999 Pa. Super. 42, 61,726 A.2d 389, 392 (1999), appeal denied, 560 Pa. 745, 747 A.2d 368 (1999). In the present case, the pendency of Defendant's omnibus pretrial motion precluded trial of Defendant from the date of its filing on December 17, 1999, through the January, 2000, trial term and the March, 2000, trial term, until its disposition on May 3, 2000. The Commonwealth promptly responded to Defendant's motion, and no responsibility for the delay in disposition of the motion can fairly be attributed to it. Based upon the exclusion of this period of 138 days, and the five-day period of pendency of Defendant's motion to dismiss under Rule 1100, in a calculation under Rule 1100, Defendant's trial commenced (on July 19, 2000) well in advance of the expiration of the 365-day period (on August 24, 2000). Excludable time and minimal judicial delay. Under Rule 1100(C)(3)(b), the period of "any continuance granted at the request of the defendant or the defendant's attorney" is to be excluded from a calculation of the 365-day period under the Rule. As noted previously, the period of pendency of a defendant's motion to dismiss under Rule 1100 is also to be excluded in a calculation of the 365-day period under the Rule. In addition, where judicial delay has caused a trial to commence beyond the 365-day run date, the Commonwealth has exercised due diligence, and the judicial delay has been minimal in nature, the postponement of trial beyond the 365-day period may be excused, in appropriate circumstances. See Commonwealth v. Williams, 1999 Pa. Super. 42, 726 A.2d 389 (Pa. Super. Ct. 1999). While the trial court may be required to arrange its docket, if possible, when judicial delay has caused a lengthy postponement beyond the period prescribed by Rule 1100, or one that implicates the constitutional right to a speedy trial, it should not be required to do so to avoid a delay of 30 days. Commonwealth v. Spence, 534 Pa. 233, 243, 627 A.2d 1176, 1181 (1993); see Commonwealth v. Crowley, 502 Pa. 393,466 A.2d 1009 (1983). In the present case, if the period of time consumed by the defense-requested continuance (62 days) is excluded from the calculation of the 365-day period, the run date under Rule 1100 was June 4, 2000. Had the case been reached during the May, 2000, trial term, as requested by the Commonwealth, Defendant would have been tried within the 365-day period. The case not having been reached during that term by the court, and with the exclusion of five days during which Defendant's motion to dismiss under Rule 1100 was pending,35 and with Defendant's trial having commenced on July 19, 2000, it may be said that judicial delay caused a postponement of trial beyond the 365-day period by 40 days. In view of the minimal nature of this judicial delay and of the Commonwealth's due diligence in attempting to secure Defendant's trial during the earlier term of court, it is believed that the circumstances do not warrant a conclusion that Rule 1100 was violated, even if no excludable time is charged to Defendant by reason of the pendency of his omnibus pretrial motion. 35 See Commonwealth v. Williams, 1999 Pa. Super. 42, 61,726 A.2d 389, 392. 8 For the foregoing reasons, it is believed that the pretrial order of court denying Defendant's motion to dismiss pursuant to Pennsylvania Rule 1100 was correct. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney Karl Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendant 9