HomeMy WebLinkAboutCP-21-CR-0002910-2010
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V. :
:
WILLIAM T. RATHBUN, III : CP-21-CR-2910-2010
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Ebert, J., August 2, 2011 –
Following consideration of Defendant’s Petition for Immediate Release and the
Commonwealth’s Answer thereto, Defendant was ordered released on nominal bail on
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April 27, 2011. The Commonwealth appeals and its Concise Statement of Matters
Complained of on Appeal states:
The lower court made an error of law when it found that the
defendant was entitled to release on nominal bail pursuant to
Pa.R.Crim.P. 600 even though the time between the filing and resolution
of the defendant’s pretrial motion was excludable from the speedy trial
period as the motion delayed trial and thus made the defendant
unavailable. Thus, the lower court’s ruling allowed the defendant to
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secure his own release by delaying trial.
Procedural History
On September 29, 2010, a criminal complaint was filed against Defendant on
charges of Criminal Attempt to Involuntary Deviate Sexual Intercourse, Criminal
Solicitation to Involuntary Deviate Sexual Intercourse, Sexual Abuse of Children (two
counts), Endangering the Welfare of Children – Parent or Guardian, Unlawful Contact
with a Minor, Indecent Assault (four counts), Unlawful Restraint, and Corruption of
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Minors. Obviously, these were very serious charges involving sexual abuse of two
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Order of Court, In Re: Defendant’s Petition for Immediate Release, April 27, 2011 [hereinafter Order of Ct., In
Re: Def.’s Pet. Immed. Release.].
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Commonwealth’s Concise Statement of Matters Complained of on Appeal, filed June 22, 2011 [hereinafter Com.’s
Concise Stmnt. Matters Complained on Appeal]
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Police Criminal Complaint, September 29, 2010.
minor children. Bail was set in the amount of $250,000.00 “straight” bail. The
Defendant never posted this bail. The Defendant’s Preliminary Hearing was held before
Magisterial District Judge Barbara Claire on October 11, 2010. At the Preliminary
Hearing, the Defendant was represented by private counsel and the Commonwealth
was represented by a Senior Assistant District Attorney. The charges were bound over,
and the Magisterial District Judge’s transcript was filed with the Clerk of Court on
October 18, 2010.
Based upon a schedule which is supplied to the Magisterial District Judges prior
to the beginning of each calendar year, all Defendants’ formal arraignment dates are
scheduled at the time of their Preliminary Hearing based on the date their charges were
filed. For example, all charges filed in Magisterial District Judge Claire’s office between
the dates of September 27, 2010, and October 31, 2010, if they were bound over for
Court, would be automatically scheduled for arraignment on January 6, 2011. This
Court takes judicial notice of the fact that this schedule is prepared by the District
Attorney’s Office and then submitted to the Court Administrator who then sends it to the
Magisterial District Judges. Pursuant to this procedure, the Defendant was given a
subpoena by the Magisterial District Judge to appear for formal arraignment on January
6, 2011, at 9:00 a.m.
In this case, the arraignment date obviously allowed over three full months of the
Rule 600 time to elapse while the Defendant remained in prison. Given the fact that a
vast number of Defendants are able to post bail and, therefore, the only speedy trial
requirement is to try their case within 365 days, pursuant to Pa.R.Crim.P. 600(A)(3), the
date of formal arraignment is usually of little consequence. This Defendant did file a
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Motion for Reduction of Bail on December 1, 2010, which was heard before Judge J.
Wesley Oler, Jr., on December 21, 2010, and denied by Order of Court, dated
December 22, 2010. Consequently, it was apparent to all that the Defendant would
remain incarcerated at minimum until his trial was completed. It is important to note that
in Cumberland County there were 2 additional formal arraignment dates available on
October 21, 2010, and December 2, 2010. Additionally, the practice in Cumberland
County is that upon motion of the District Attorney or a Defense Attorney, a Defendant
could be arraigned at any time during the Court’s normal working hours.
The Defendant waived formal arraignment on January 6, 2011, and he and his
counsel signed an “Acknowledgement of Arraignment Pursuant to Cumberland County
Rule 303-2” at the Cumberland County Prison on January 6, 2011. The
Acknowledgment of Arraignment form directed the Defendant to appear for trial on April
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25, 2011. This date was obviously outside of the 180 day requirement of Rule 600
which expired on March 28, 2011. The Court takes judicial notice that while the Clerk of
Courts signs the Acknowledge of Arraignment form, the times and dates directing the
Defendant to appear for Pre-Trial Conference and for Trial are determined by a list
again prepared by the District Attorney’s Office. Traditionally, this practice in
Cumberland County has allowed the District Attorney to manage the number of cases
which will appear in any single criminal trial term week. The use of this local practice,
however, in no way restricts the District Attorney’s ability to list a particular Defendant’s
case for an earlier term of court.
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Acknowledgement of Arraignment Pursuant to Cumberland County Local Rule 303-2, January 6, 2011.
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On February 1, 2011, well within the 30 day limit required by Pa.R.Crim.P. No.
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579, Defendant filed an Omnibus Motion for Pretrial Relief. While the Defendant’s
Omnibus Pre-trial Motion was lengthy, given the seriousness of the charges and the
extensive experience of the Defendant’s private attorney, the Motion was appropriate
and complete. It included the standard motions for writ of habeas corpus/dismissal of
the information, motions regarding improper joinder/motions to sever, a request for bill
of particulars, a motion to compel various types of discovery and a motion in
limine/motions to suppress. In short, while the Motion had ten attachments consisting of
transcripts and requests for discovery etc., it was nothing out of the ordinary. The
matter was assigned to Judge J. Wesley Oler, and on February 2, 2011, he set the
hearing on the Omnibus Pre-Trial Motion for June 3, 2011. The Defendant remained
incarcerated.
An inspection of the 2011 Cumberland County Court Calendar reveals that there
were criminal court trial terms scheduled for the weeks beginning January 24, 2011, and
March 14, 2011, both of which were within the required 180 day limit. This Court
recognizes that in this county it is the Commonwealth who determines when a
Defendant’s case will be listed for trial. The Court finds that the Commonwealth made
no effort whatsoever to schedule the trial of this Defendant prior to the expiration of the
180 days required by Pa.R.Crim.P. 600(A)(2),(E). Again, the 180 day period required
by Rule 600 expired on March 28, 2011. For the purposes of this appeal, the Defendant
was never even scheduled for trial until April 25, 2011.
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Def.’s Omnibus Motion for Pre-Trial Relief, filed Feb. 1, 2011.
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On April 6, 2011, Defendant filed a Petition for Immediate Release, which the
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Commonwealth answered on April 7, 2011. On April 20, 2011, after reviewing the
Commonwealth’s Answer, an additional Order of Court was entered whereby a Rule
was issued upon the Commonwealth to show cause why the Defendant was not entitled
to the relief requested and directing the Commonwealth to provide the Court with an
affidavit documenting the exact periods of times which it maintained were excludable for
the purposes of calculating the Rule 600 run date. Argument on the matter was held on
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April 26, 2011. On April 27, 2011, Defendant was ordered released on nominal bail
pursuant to the following conditions:
1. That Defendant execute a bail bond in the Clerk of Courts
Office with the amount of cash bail being set at $1.00;
2. That Defendant Comply with all the conditions of
bail set forth in Pa.R.Crim.P. 526(A);
3. That Defendant be placed on electronic monitoring
and that he be confined to his designated place of residence.
Defendant shall not leave his residence without specific
Order of Court. The Cumberland County Office of Probation
and Parole is granted specific authority to supervise this
house arrest pursuant to the holding in
Commonwealth v. Sloan, 907 A.2d 460 (Pa. 2006);
4. That Defendant provide to the Court a written
agreement of a designated person, organization or
bail agency, suitable to the Court, to act as surety
for the Defendant;
5. That Defendant have absolutely no contact,
direct or indirect, with the victims in this case,
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their families or any Commonwealth witnesses.
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Def.’s Pet. Immed. Release Pursuant to Pa.R.Crim.P. 600, filed Apr. 6, 2011; Com.’s Answer to Def.’s Pet.
Immed. Release Pursuant to Pa.R.Crim.P. 600., filed Apr. 7, 2011.
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Order of Ct., dated April 20, 2011, In Re: Def.’s Pet. Immed. Release.
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Order of Ct., In Re: Def.’s Pet. Immed. Release.
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After Defendant’s Counsel requested clarification of the April 27, 2011, Order, the
Court entered an additional Order on May 4, 2011, that further defined the conditions of
the Defendant’s house arrest electronic monitoring. Those conditions were as follows:
1. Defendant will comply with all conditions of bail set
forth in Pa.R.Crim. P. 526(a);
2. Defendant will remain inside the confines of his residence
at all times except for verifiable medical emergency at which
time the Defendant will provide the Court with a written
verification of the medical emergency signed by a medical doctor;
3. No children under the age of 18 will enter the Defendant’s residence;
4. The Defendant’s location in his home is subject to verification
by the Cumberland County Probation Office at any time;
5. The Cumberland County Probation Officers will be granted
admittance into the Defendant’s residence at any time in
order to update/verify the operation of the Defendant’s
electronic monitoring system;
6. The Defendant’s counsel may visit the Defendant
in his residence at any time;
7. Defendant will be allowed adult visitors in his
home between the hours of 4:00 p.m. and 8:00 p.m.
Celia Lerner will be permitted to visit Defendant
home during this time period.
The Commonwealth filed its Concise Statement of Matters Complained of on
Appeal on May 27, 2011. Their position, as in the past, remains the same. That position
being that the moment a Defendant files a Pre-Trial Motion, regardless of the
Commonwealth’s failure to schedule the trial within the required limits, the time from the
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filing of the Pre-Trial Motion until its resolution is excludable.
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Com.’s Concise Stmnt. Matters Complained on Appeal.
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Additional Historic Prospective
This Court was faced with a similar situation in 2009 in the case of
Commonwealth v. Roman S. Avadiaev, 48 Cumb. L. J. 304 (C.P. Cumberland 2009)
which was appealed to the Superior Court. While the denial of nominal bail in that case
was upheld on the legal premise that the Defendant had waived the claim, this Court
wrote at length about the manner in which the case had been scheduled and advised
the District Attorney’s Office that “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 of these important cases cannot be left
to the mechanical application of the arraignment chart by the District Attorney’s
[secretarial] staff personnel.” Id. at 309 (C.P. Cumberland 2009)
This issue continued to resurface in Cumberland County in several serious
cases. On October 8, 2010, the Court participated in the Cumberland County Bar
Association Bench Bar Conference held at the Dickinson School of Law in Carlisle. A
one hour Continuing Legal Education Program was presented by the Court on the topic
of “Top Ten Judicial Pet Peeves.” While the list included 15 “peeves,” Number 10 on
the list was “Prosecutors not monitoring their Rule 600 run dates.” This course was
presented on Friday, October 8, 2010, and the Defendant’s preliminary hearing was
held on Monday, October 11, 2010. Some members of the District Attorney’s staff were
in attendance.
Discussion
The foundation of Pennsylvania speedy trial requirements as stated in
Pa.R.Crim.P. 600 are founded in the Sixth Amendment to the United State Constitution
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and Article I, Section 9 of the Pennsylvania Constitution. This Court is well aware of the
fact that the Supreme Court Rule “was neither designed nor intended to insulate a
criminal accused from good faith prosecution.” Commonwealth v. Staten, 950 A.2d
1006, 1009 (Pa. Super. 2008). We note that the “speedy trial rule must be construed in
a manner consistent with society’s right to punish and deter crime…. Strained and
illogical judicial construction [of the Rule] adds nothing to the search for justice, but only
serves to expand the already bloated arsenal of the unscrupulous criminal determined
to manipulate the system.” Id. (citing Commonwealth v. Preston, 904 A.2d 1, 9-10 (Pa.
Super. 2006)(en banc)).
This having been said, Rule 600 sets up two distinct categories of cases which
involve vastly differing sanctions for violation of the Rule. Of all the cases interpreting
Rule 600, the great majority deal with the situation where a Defendant is asking that the
charges against him be dismissed because the case was not tried within 365 days.
Letting a criminal who commits a serious offense to go free without punishment is the
price the citizens of this Commonwealth pay for failing to give a Defendant his
constitutionally guaranteed right to a speedy trial. Allowing a perhaps guilty felon to go
free is an extreme result which demonstrates just how high a value we place upon the
constitutional principle of speedy public trial.
The other category of cases, however, deals with the Defendant who has been
continuously incarcerated for 180 days. Violation of Pa.R.Crim.P. 600(A)(2) need not
carry the severe sanction of dismissal of the charges. Rather the remedy under
Pa.R.Crim.P. 600 (E), is that the Defendant be released on nominal bail pending trial.
In short, the Defendant may still be tried, convicted and punished for his offense if he is
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guilty. This rule recognizes that there is a significant difference between a person sitting
in prison for six months awaiting trial and someone who is awaiting trial while free on
bail. There are relatively few cases interpreting the release on nominal bail provision of
Rule 600.
Considering these general principles, we now analyze the case at bar. The
Commonwealth complains that this Court erred in granting the Defendant release on
nominal bail pursuant to Pa.R.Crim.P 600(E). Rule 600(A)(2) states that “[t]rial in a
court case,… when the defendant is incarcerated on that case shall commence no later
than 180 days from the date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2).
The Rule does recognize that a delay caused by the unavailability of the defendant or
the defendant’s attorney or any continuance granted at the request of the defendant or
the defendant’s attorney is excluded when determining the period for commencement of
trial. Pa.R.Crim.P. 600(C)(3)(a)-(b). Such a delay is excludable from the speedy trial
period only if the motion delayed trial and thus made the defendant unavailable and if
the Commonwealth exercised due diligence. Commonwealth v. Hill, 736 A.2d 578, 587
(Pa. 1999). While due diligence by the Commonwealth does not require perfect
vigilance, the Commonwealth must show that a “reasonable effort has been put forth” to
comply with the Rule. Commonwealth v. Staten, 950 A.2d 1006, 1010 (Pa. Super.
2008).
“Reasonable effort” constituting due diligence on the part of the Commonwealth
includes “the Commonwealth listing the case for trial prior to the [Rule 600] run date.”
Id.; see also Commonwealth v. Aaron, 804 A.2d 39, 43-44 (Pa. Super. Ct. 2002). When
facing a speedy trial violation, it is the Commonwealth’s burden to prove by a
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preponderance of the evidence that it acted with due diligence throughout the
proceedings. Commonwealth v. Kearse, 890 A.2d 388, 393 (Pa. Super. Ct. 2005). The
Commonwealth will not meet its burden in showing due diligence absent competent
evidence which support the fact that the case was given the earliest possible trial date.
Commonwealth v. Johnson, 852 A.2d 315, 317 (Pa. Super. Ct. 2004).
The Commonwealth’s evidence in this case consists of the Answer it filed in
response to the Order of Court dated April 20, 2011. The Answer consisted of 4 pages
and attached the Clerk of Court’s docket and a copy of the Defendant’s Omnibus Pre-
Trial Motion filed on February 1, 2011. The Answer in essence states that the
Defendant’s Omnibus Pre-Trial Motion was lengthy and that Judge J. Wesley Oler, Jr.
had set a hearing on the Defendant’s Omnibus Pre-Trial Motion for June 3, 2011. The
Commonwealth’s position was summed up in paragraph 13 of its Answer which states
as follows:
“If there was no excludable time, the run date
would have been March 28, 2011. However,
the time period from the date of the filing of
Omnibus Motions on February 1, 2011, at least
until the date of the hearing scheduled for
June 3, 2011, excludes 122 days from that
period which currently resets the date for
October 3, 2011 (assuming that all issues
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are resolved at the June 3, 2011 hearing).”
The Commonwealth asserts that Defendant’s pretrial motion delayed trial and rendered
Defendant unavailable. However, in this case, the claimed delay caused by
Defendant’s pretrial motion cannot be excluded under Rule 600 because the
Commonwealth has failed to show that it acted with due diligence in bringing Defendant
to trial within the 180-day speedy trial period. Again, all of the cases cited by the
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Answer of the Commonwealth filed April 21, 2011.
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Commonwealth in their Answer of April 20, 2011, Commonwealth v. Hill, 736 A.2d 578
(Pa. 1999), Commonwealth v. Hyland, 875 A.2d 1175 (Pa. Super. 2005), and
Commonwealth v. Williams, 726 A.2d 389 (Pa. Super. 1999) deal with Defendants who
are requesting that the charges against them be dismissed for violation of the 365 day
rule. They are not cases dealing with the request for nominal bail after failure to bring
an incarcerated Defendant to trial within 180 days.
At Defendant’s Formal Arraignment and prior to Defendant filing his pretrial
motion, Defendant’s trial was scheduled to take place after the speedy trial 180 day run
date. Because the Complaint in this case was filed on September 29, 2010,
Defendant’s case would have needed to commence on or before March 28, 2011 in
order to comply with the 180-day speedy trial requirement. Nevertheless, at the Formal
Arraignment in January of 2011, Defendant’s trial date was set for April 25, 2011.
Defendant’s pretrial motion was not filed until February 1, 2011, and did not affect the
fact that the trial date was already scheduled beyond the 180-day deadline.
Furthermore, the Commonwealth has failed to satisfy its burden of showing that
Defendant’s case was given the earliest possible trial date. No evidence was presented
to indicate any reason why Defendant’s trial date needed to be set beyond the 180 day
speedy trial run date when Defendant was formally arraigned or why it was not
rescheduled for an earlier date after arraignment.
This entire problem could have easily been avoided by the Commonwealth. The
Commonwealth could have filed a motion to reset the trial date within the 180 day
period for either of the trial terms beginning in January 24 or March 14, 2011. The
Commonwealth could have requested that the hearing on the Defendant’s pretrial
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motion be reset so as to allow trial during the March 24, 2011 term of criminal court.
Usually, when a Defendant is facing a looming trial date, it is the Defendant who
requests a continuance. The time after an explicit defense requested continuance is
clearly excludable. But again, it still would have required the Commonwealth to
schedule the Defendant’s trial before the running of the 180-day speedy trial limit. Had
the Commonwealth done any of these things, the Trial Court would have been placed
on notice that a problem existed and that judicial intervention was necessary to balance
the Commonwealth’s legitimate right to prosecute a serious criminal Defendant and the
Defendants’ right to speedy trial and timely consideration of his pre-trial motions.
Instead, the Commonwealth did nothing. In this Court’s eyes, doing nothing does not
equal “reasonable effort” or “due diligence.”
To accept the Commonwealth’s position, Rule 600(E) is basically rendered
meaningless. In cases of this magnitude involving allegations of sexual abuse of
children, a Defendant has a right to file an omnibus pre-trial motion to enforce their
rights under our constitution. The Commonwealth should not be allowed to arraign a
Defendant facing serious charges for trial outside the 180 day period and then simply sit
back and wait until the Defendant files an omnibus motion in order to declare that the
Defendant is no longer eligible for nominal bail. Again, the ruling in this case has no
effect on Defendants facing capital offenses or those who have been ruled too
dangerous to be eligible for bail under the Pennsylvania Constitution.
Based upon a fair reading of the holdings in Commonwealth v. Abdullah, 652
A.2d 811 (Pa. 1995) and Commonwealth v. Sloan, 907 A.2d 460 (Pa. 2006), “[Rule 600
(E)] requires that a defendant, upon petition, be released on nominal bail if he is held in
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excess of 180 days. In order for [now Rule 600 (A)(2)] to have any force, [Rule 600 (E)]
must be mandatory. The trial court has no discretion under this subsection; otherwise,
a Defendant could remain incarcerated in violation of [Rule 600 A(2)].” 652 A.2d at 812-
13. The Defendant’s case did not commence within 180 days after the date on which
the complaint was filed. The Commonwealth never even attempted to schedule the
case for trial within the required time period. No excludable time existed because the
Commonwealth failed to show that it put forth reasonable effort constituting due
diligence to schedule Defendant’s case prior to the speedy trial run date. Therefore,
this Court did not err in granting Defendant’s Petition for Immediate Release and
releasing Defendant on nominal bail with significant restrictions on his liberty.
By the Court
________________________________
M. L. Ebert, Jr., J.
Office of the District Attorney
Spero Lappas, Esquire
Attorney for Defendant
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110-9670
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