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HomeMy WebLinkAboutCP-21-CR-0931-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-0931-2008 : V. : CHARGE: 1. STAT. SEXUAL ASSAULT; : 2. INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE; : 4. INDECENT ASAULT; : 5. CORRUPTION OF MINORS; : 6. RAPE OF A CHILD; : 7. SEXUAL ASSAULT; : 8. INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE; : 9. INDECENT ASSAULT; : 10. INCEST : ROMAN S. AVADIAEV : OTN: K779872-2 : AFFIANT: PTL. KEITH MORRIS IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 RELEASE ON NOMINAL BAIL Ebert, J., August 31, 2009 – I. FACTS A complaint charging the Defendant with Statutory Sexual Assault (F2), Involuntary Deviate Sexual Intercourse (F1), Aggravated Indecent Assault (F2), Indecent Assault (M2), Corruption of Minors (M1), Rape of a Child, (F1), Sexual Assault (F2), Involuntary Deviate Sexual Intercourse with a Child (F1), Indecent Assault (M2), and Incest (F2) was filed against the Defendant on March 7, 2008. Bail in the case was set at $250,000.00 cash bail. The Defendant never posted the bail and remained incarcerated. A preliminary hearing on the matter was initially set for March 17, 2008 but was continued until March 31, 2008, upon motion of the Public Defender in order to obtain an interpreter for the Defendant. (Commonwealth Exhibit 2, Notes of Testimony – Hearing of 9/12/08 – p 13). An interpreter was necessary because the Defendant was a citizen of Azerbaijan and in the United States on a green card. He spoke Russian. On March 31, 2008, the preliminary hearing was held and all charges against the defendant were held for court. In Cumberland County the Magisterial District Judges are provided with a chart which sets out the dates for formal arraignment, pre-trial conferences and trial. (Defense Exhibit 2, N. T. 9/12/08 – p 16, 17, 32). Thus the Magisterial District Judge was advised that if the Defendant’s preliminary hearing was held between February 25, 2008, and April 13, 2008, the Defendant should be given written notice of formal arraignment for May 27, 2008. The District Attorney’s staff then utilized the chart and set the proposed trial date for September 8, 2008. Normally this system functions very well, but given the March 7, 2008, complaint filing date, the 180 day run date expired on September 3, 2008, prior to the beginning of the September 2008 Criminal Term of Court. Given the serious nature of these charges, and the Defendant’s $250,000 straight cash bail requirement, in hindsight, the District Attorney’s Office should have arraigned this case into the July 2008 Criminal Term of Court which began on July 14, 2008. Such action would have most likely required the Defendant to file an early omnibus pre-trial motion or trial continuance. This, of course, did not happen. The Defendant was arraigned on June 3, 2008, and the matter was scheduled for a pre-trial conference on August 26, 2008, with jury trial set to begin on September 8, 2008. It appears that neither the Public Defender nor the 2 Assistant District Attorney were aware of the potential Rule 600 problem, because on August 28, 2008, at the pre-trial conference, the Defendant, his Public Defender, and the Assistant District Attorney indicated to the Court that the case was ready for trial and the Defendant was directed to appear for trial on September 8 or September 22, 2008. This agreement was entered as an order of Court dated August 28, 2008. On September 2, 2008, the Defendant filed a Petition for Release on Nominal Bail alleging that more than 180 days had passed since the filing of the complaint against him, that he had not been brought to trial, and that there was no excludable time which would have tolled the running of the Pa.R.Crim.P. 600 (E) 180 Day Requirement. A hearing on the Petition was held on September 12, 2008. At the conclusion of the hearing, the Court found as fact that the Public Defender at the preliminary hearing did request a continuance to allow for the acquisition of a Russian interpreter and that there were 14 days excludable time attributable to the Defendant. Accordingly, the 180 day run date would have been September 16, 2008. Given the seriousness of the charges, at the hearing on September 12, 2008, the Assistant District Attorney made a verbal motion supported by a written brief that the Defendant was not entitled to any bail under the provisions of Section 14 of Article I of the Pennsylvania Constitution.This section states that a person may not be eligible for bail where “no condition or combinations of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or the presumption great…” 3 The Commonwealth offered the testimony of Officer Keith Morris to support this proposition. The Officer did testify that prior to his arrest the Defendant had attempted to hang himself. Additionally, the Officer testified that the Defendant was from Russia, not the United States, and that he still had a lot of family and relatives in Russia. Finally, the Officer indicated that during his investigation he was made aware of the fact that the Defendant had made online visits to various pornography sites with his daughter present. She is the victim in the case. The Court made inquiry of the Assistant District Attorney as to why the case had not been tried during the week of September 8, 2008, given the obvious Rule 600 issue. The Assistant District Attorney responded that given the fact that the Defendant had filed a Rule 600 motion, the case was moved to the pending trial list instead of actually trying the case. The Commonwealth’s rationale was that the Defendant’s Rule 600 motion actually stayed the running of the 180 day requirement. Given the fact that the Court had found 14 days excludable time, the hearing on the Rule 600 motion was ordered to be reconvened at 4:00 p.m. on Tuesday, September 16, 2008, which was then still within the allowable period for trial. The Court then reviewed with Defense Counsel that in addition to the $1.00 cash amount of the nominal bail, there was an additional requirement of an “agreement of a designated person, organization, or bail agency to act as a surety for the Defendant” Pa. R.Crim. P. Rule 524 (B) (4). The Court was of the opinion that if the Defendant’s friend, Stanislaw J. Sudol, voluntarily agreed to act as a surety by agreeing to use his house as security for the Defendant’s 4 appearance, this would have satisfied the requirements for release on nominal bail. Given the lack of case law on this topic, the Court adjourned the hearing until 4:00 p.m., Tuesday, September 16, 2008, and invited both counsel to file briefs addressing the various questions raised. At the hearing on September 16, 2008, Defense Counsel advised the Court that she had chosen not to file a brief in the matter. Additionally, she had interpreted the Court’s previous comments to mean that the only way the Defendant could provide an agreement of a surety was that “the surety would agree to have him -- ensure his presence through the surety’s house.” (N.T. 8/16/08, p 2) The Court indicated that it did not know the answer to that question but that the Defendant was required to have an agreement with a person, organization or bail agency to act as a surety. The Defendant advised the Court that he did not have anyone to act as a surety, and accordingly, nominal bail was denied. However, the Court directed that the case be brought to trial 5 days later on Monday, September 22, 2008, when a jury panel would be present. The Defense Counsel then immediately requested a continuance of the trial indicating that she had not had a chance to look at the DNA report provided to her by the Commonwealth the previous Friday, September 12, 2008. It will be noted that the substance of the DNA report was that the DNA found on a condom in the Defendant’s home contained only DNA from the victim, not the Defendant. In short, the DNA evidence in no way inculpated the Defendant. In any regard, the Commonwealth agreed to the 5 Defense requested continuance and the case was scheduled for trial on November 10, 2008. Additionally, the Commonwealth presented the testimony of Lioubov Avadiaev, the mother of the victim, and the Defendant’s estranged wife, regarding the issue of whether the Defendant was eligible for bail at all under Article I, Section 14 of the State Constitution regarding the safety of the victim or others in the community. II. DISCUSSION As a general rule in Pennsylvania, pursuant to Article I, Section 14 of the Pennsylvania Constitution, “All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community…” While this case did involve very serious sexual offenses with a child victim, the case was clearly not a death penalty or life imprisonment case. Indeed, the Defendant was being held in the Cumberland County Prison because he could not post $250,000.00 straight bail. Accordingly, pursuant to Pa. R. Crim. P. 600 (A)(2), since the Defendant was incarcerated he was required to be tried within 180 days from the date on which the complaint was filed. Here, the criminal complaint was filed on March 7, 2008, and the 180 day run date would have normally expired on September 3, 2008. 6 A. Preliminary Hearing Continuance – Excludable Time At the preliminary hearing on March 17, 2008, when it became apparent that a Russian interpreter could not be obtained, the record in this case clearly establishes that the Public Defender requested a continuance of the preliminary hearing. The continuance was granted, and the preliminary hearing was held on March 31, 2008. In Cumberland County, both the District Attorney’s Office and the Public Defender’s Office are permitted to request the assistance of interpreters for their cases. Here, the Defendant maintains it was the Commonwealth’s responsibility to obtain an interpreter for the preliminary hearing and accordingly, regardless of whether the Public Defender at the preliminary hearing requested a continuance, the time should not be excludable for Rule 600 purposes. Such an interpretation does not comport with common sense. Clearly the Public Defender was the person who needed to have meaningful consultation with her client before the preliminary hearing. Upon determining that she could not do so, she logically requested a continuance in order to obtain an interpreter. Accordingly, a period of 14 days was excludable from the 180 day run date pursuant to Pa. R. Crim. P. 600 (C) (3) (b). B. Defense Motion for Nominal Bail – Excludable Time This Court recognizes that the mandates of Rule 600 are part of the law of this Commonwealth and promote the public interest of insuring that defendants obtain speedy trials, especially when they are incarcerated. Given this mandate, it is appropriate to question the Commonwealth’s scheduling of this trial. It was within the province of the District Attorney’s Office to initially schedule the case 7 for trial during the July 2008 Term of Court which began on July 14, 2008. While the Commonwealth maintained that the Pennsylvania State Police Forensic Laboratory had not completed the DNA analysis of evidence in the case, nonetheless had the case been scheduled in July there is little doubt that the 180 day issue now before this Court would have been most likely avoided. In a case as serious as this one, it is incumbent upon the prosecutor to maintain close communication with the forensic laboratory to insure that DNA testing is completed in a timely manner and that the State Police lab personnel are aware of the enhanced priority of such a case. It is obvious that no one really knew what the 180 day run date was given the fact that both the Assistant Public Defender and the Assistant District Attorney went to pre-trial conference, called the case ready for trial, and set a date that was outside of the original required run date. Given the 14 days excludable time discussed above, had the case been called on September 8, 2008, no Rule 600 problem would have arisen. It would be incumbent upon every Assistant District Attorney assigned to a serious case to monitor the Rule 600 run dates and adjust trial dates to avoid problems. Setting the trial dates for these important cases cannot be left to the mechanical application of the arraignment chart by District Attorney staff personnel. The Commonwealth also maintains that the Defendant’s filing of the Rule 600 Motion for Nominal Bail tolled the running of the 180 day rule. Initially, the Court was somewhat skeptical with regard to this position. It appears quite ironic that a Motion filed by a Defendant to enforce his Rule 600 rights would in fact serve to allow the Commonwealth additional excludable time. However, after 8 research, this position appears to be correct. In Commonwealth v. Cook, 676 A.2d 639 (Pa. 1996), the Pennsylvania Supreme Court, in a decision involving a death penalty murder case did rule that a Motion to Dismiss under then Rule 1100, now Rule 600, stated that time attributable to resolution of a Defendant’s Motion to dismiss on speedy trial grounds was excludable for the purposes of the speedy trial rule. Specifically, the Court in computing the adjusted run time stated as follows: 13. 10/11/88 – Appellant filed a motion to dismiss under Rule 1100 G which was denied on 10/18/88 (7 days excludable time) resulting in an adjusted run date Of 11/11/88. Id at 646. In this case, the Defendant filed his Rule 600 Motion on September 2, 2008, and the Court denied the Motion on September 16, 2008. Accordingly, the Commonwealth was entitled to 14 days additional excludable time resulting in an adjusted Rule 600 – 180 day run date of September 30, 2008. C. Effect of Defense Request for Continuance on September 16, 2008 Given our analysis of the excludable time issue, it is clear that had the Defendant gone to trial on September 22, 2008, the trial would have been within 180 days of the filing of the complaint. However this case raises the interesting issue of what exactly is nominal bail. Very little case law has been provided on this subject. Clearly, Pa. R. Crim. P. 600 (E) states that “any defendant held in excess of 180 days is entitled upon petition to immediate release on nominal bail.” The 9 phrase “release on nominal bail” is clearly defined in Pa. R. Crim. P. Rule 524 (C) (4) which states: Release on Nominal Bail: Release conditioned upon the defendant’s depositing a nominal amount of cash which the bail authority determines is sufficient security for the defendant’s release such as $1.00, and the agreement of a designated person, organization, or bail agency to act as surety for the defendant. (emphasis added) Accordingly, it was necessary for the Defendant to have the agreement of an individual or entity to act as a surety prior to being released on nominal bail. To serve as a surety in the Commonwealth, a person must meet the qualifications delineated in Pa. R.Crim. P. 531. In this case, no “professional bondsman,” “surety company” or “bail agency” was proffered by the Defendant to serve as a surety in his case. The Defendant did have an acquaintance who he met through a religious organization testify at the Rule 600 Motion hearing on September 12, 2008. The total extent of the testimony solicited by the Assistant Public Defender was as follows: Direct Examination By Ms. Barry: Q: State you complete name and spell both names, please? A: S-t-a-n-i-s-l-a-w, my middle initial is J, and last name is s-u-d-o-l Q: And where do you live, Mr. Sudol? A: I live in the Mechanicsburg area. Q: Address? A: Address, 931 Willcliff Drive, Mechanicsburg PA, 17050. 10 Q: And do you know Mr. Avadiaev? A: Yes, I do. Q: Would you allow him to live with you were he to be released? A: Yes. Ms. Barry: I have nothing further. At no time during his testimony did Mr. Sudol ever “agree” to act as a surety for the Defendant. The comment to Pa.R.Crim.P. 524 states that “the purpose of a surety is to facilitate interstate apprehension of any Defendant who absconds by allowing the nominal surety the right to arrest the Defendant without the necessity of extradition proceedings. See Frisbie Collins, 342 US 519 (1952) …In all cases the surety, on nominal bail incurs no financial liability.” While this Court did inquire as to whether or not Mr. Sudol would be willing to put up his house as security in order to facilitate the Defendant’s apprehension if he absconded, it is clear that the Court could not have required Mr. Sudol to incur any financial obligation pursuant to the comment to the rule. In any regard, the Court invited the Public Defender to brief the issue regarding the necessity of a surety in relation to nominal bail and specifically asked the Defense Counsel at the September 16, 2008, hearing, after she did not file a brief, whether she found a person willing to agree to serve as a surety in this case. The Assistant Public Defender answered no. At that point, the request for nominal bail was denied. Again, the case was ordered to be brought to trial six days later on Monday, September 22, 2008, 11 which as discussed above was within the 180 day requirement. The Defense Attorney then requested an immediate continuance based on the DNA report that had been provided to the Defendant on September 12, 2008. As previously noted, there was nothing in this DNA report that in any way inculpated the Defendant. Regardless, the Assistant Public Defender wanted to review the report and perhaps hire an expert witness. She stated on the record “he understands he’s probably going to remain in jail for this, but we’re not ready to go to trial as discovery was just given to me Friday and it probably requires hiring an expert.” The Commonwealth agreed to the continuance, and the Defendant’s case was set down for trial on November 10, 2008. Thus, the Defendant’s requested continuance began another period of excludable time attributable to the Defendant. Accordingly, there was no Rule 600 violation with regard to denying Defendant’s request to be released on nominal bail. D. Commonwealth’s Claim that Defendant Should Be Denied Bail. On a final note, at the September 16, 2008, hearing, the Assistant District Attorney presented evidence relating to whether or not the Defendant was entitled to bail at all based on Article I, Section 14 of the Pennsylvania Constitution. This provision allows for the denial of bail “where no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community…” The juvenile victim’s mother and Det. Keith Morris of the East Pennsboro Township Police Department testified at the hearing. Collectively, the testimony established that the mother felt the Defendant had mental problems, that she and her daughter were afraid of the 12 Defendant, that he had a Russian passport, that he was not a United States citizen, and that he appeared to be a flight risk. Previously on September 12, 2008, the Court had heard that the Defendant had attempted to hang himself prior to being arrested. Clearly all of these things were known to the Commonwealth long before the Defendant filed his Rule 600 Motion on September 2, 2008. It seems quite apparent that prior to the motion of the Defendant to be released on nominal bail, the Commonwealth was quite content with the Defendant being bailable on “$250,000.00 straight bail.” Given this Court’s ruling regarding excludable time and failure of the Defendant to provide a surety, the Court did not have to decide the constitutional bail exclusion issue. However, for the purposes of providing direction in future cases, it would appear that if the District Attorney felt that a person was not suitable for bail because of safety issues to persons or the community that such a position should be raised early in the case. Obviously, if the District Attorney felt that the Magisterial District Judge who was the initial bail authority had not properly considered all of the factors regarding personal or community safety, it was well within his prerogative to petition the Court of Common Pleas to change the bail status based on the Constitutional exclusion. This did not happen in this case until it became apparent that there was a viable issue as to whether the Defendant was entitled to be released on nominal bail. 13 In the interest of justice, under such a scenario given the fact that the Commonwealth was satisfied that the Defendant was bailable at a set amount of cash bail prior to the Rule 600 motion, it would be unfair to try to circumvent the 180 day nominal bail provision of Rule 600 by now raising “safety” issues. III. CONCLUSION For the reasons stated above, this court did not err in denying the Defendant’s Petition for Nominal Bail under the provision of Pa. R. Crim. P. 600 (E). By the Court, M. L. Ebert, Jr., J. Christylee Peck Senior Assistant District Attorney Ellen Barry, Esquire Chief Deputy Public Defender Dirk Berry, Esquire Court Appointed for Defendant 14