J-A10005-20
2020 PA Super 227
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRANCE MORGAN : : Appellant : No. 2896 EDA 2019
Appeal from the Judgment of Sentence Entered July 8, 2019 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0007266-2008
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
OPINION BY BOWES, J.: Filed: September 17, 2020
Terrance Morgan appeals from his July 8, 2019 judgment of sentence
imposed after he was found guilty of escape. After careful review, we vacate
Appellant’s judgment of sentence and reverse his conviction due to the
Commonwealth’s failure to exercise due diligence under Pa.R.Crim.P. 600.
On October 10, 2008, Mr. Morgan absconded from a work release
program while serving a criminal sentence for robbery. That same day, the
Bucks County Sheriff’s Office (“BCSO”), filed a written complaint charging
Appellant with escape and a magisterial district judge issued a warrant for his
arrest. On October 16, 2008, BCSO received notice that Appellant was being
held on separate homicide and firearms charges at the Richmond County Jail
in the State of Georgia. The next day, a preliminary hearing was held in
absentia and Appellant was declared a fugitive. ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A10005-20
On October 23, 2008, BCSO sent a fax to Georgia authorities requesting
that a detainer be placed on Appellant, and that extradition proceedings be
commenced.1 See BCSO Fax, 10/23/08 (“Please lodge our detainer on
[Appellant]. We will extradite on this matter.”). The next day, Appellant
signed a waiver of extradition. On October 28, 2008, BCSO received an email
from the Richmond County Sheriff’s Office in Georgia attaching a copy of
Appellant’s executed waiver. It also informed BCSO of Appellant’s status:
I have attached [Appellant’s] signed waiver of extradition to this email. But, just to keep you informed his local charges [(m]urder, [p]ossession of a firearm during the commission of a crime) are still pending. If he goes to prison in Georgia for these charges I will let you know, but you will then have to inform [the Georgia Department of Corrections (“GA DOC”)] that you need a hold placed on him. . . . If you have any questions, just call or email.
Richmond County Email of 10:40 a.m., 10/28/08. Thus, BCSO was advised
that once Appellant was presumably convicted of and sentenced on these
____________________________________________
1 “Unlike a request for extradition, which is a request that the state in which the prisoner is incarcerated transfer custody to the requesting state, a detainer is merely a means of informing the custodial jurisdiction that there are outstanding charges pending in another jurisdiction and a request to hold the prisoner or notify the requesting state of the prisoner’s imminent release.” Commonwealth v. J. Booze, 953 A.2d 1263, 1266 n.2 (Pa.Super. 2008) (citing Commonwealth v. Williams, 896 A.2d 523, 536 n.5 (Pa. 2006)).
There are cooperative procedures in place for jurisdictions to temporarily exchange custody of incarcerated individuals like Appellant, including the Interstate Agreement on Detainers (“IAD”). “The IAD is an agreement between forty-eight states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States, that establishes procedures for the transfer of prisoners incarcerated in one jurisdiction to the temporary custody of another jurisdiction which has lodged a detainer against a prisoner.” Id. at 1266 n.3.
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charges, the Richmond County Sheriff’s Office would alert BCSO. However,
BCSO was also put on notice that it would need to secure a separate detainer
with GA DOC, and then consummate the extradition process.2 Id.
On February 25, 2010, Appellant was adjudged guilty of involuntary
manslaughter and possession of a firearm during the commission of a crime
in Georgia, and sentenced to an aggregate term of ten to twenty years of
incarceration. On July 7, 2010, Appellant was transferred to Valdosta State
Prison to serve his Georgia sentence. There is no indication that the Richmond
County Sheriff’s Office contacted or informed BCSO of these events.
Nonetheless, BCSO took no other steps to secure a detainer with GA
DOC or to effectuate Appellant’s extradition for approximately four years from
their last contact with Georgia officials. On September 4, 2012, BCSO sent
an email to the Richmond County Sheriff’s Office, requesting an update on
Appellant: “The last note in file was he waived extradition but had locals, any
way of an updated status on him.”3 BCSO Email of 10:13 a.m., 9/4/12. ____________________________________________
2 We discern that BCSO intended to extradite Appellant pursuant to IAD procedures. See BCSO Fax, 6/18/18 (requesting GA DOC to “[p]lease start an IAD.”). Such extradition was not possible until Appellant was convicted and began serving his criminal sentence in Georgia. “The IAD applies only to persons serving sentences in other jurisdictions, not to those merely incarcerated while awaiting the disposition of criminal charges against them. J. Booze, supra at 1266 n.4 (citing Commonwealth v. McNear, 852 A.2d 401, 405 n.3 (Pa.Super. 2004)).
3 This follow-up email was prompted by a change in personnel at BCSO. See BCSO Email, 9/4/12 (indicating that a new investigator had taken over and was checking on the status of Appellant’s case due to its inactivity). During
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The Richmond County Sheriff’s Office responded that same day: “I have
looked into your question and have some follow up on your defendant. On
July 7th, 2010[, Appellant] was shipped to prison. He is now housed at
Valdosta State Prison in Valdosta, Georgia . . . for [v]oluntary [m]anslaughter.
In order to place a hold for your agency on this defendant, please make
contact with [GA DOC].” Richmond County Email of 12:36 p.m., 9/4/12.
In response, BCSO sent the following fax to the records department at
Valdosta State Prison:4 “Please be advised we lodged this warrant with [the
Richmond County Sheriff’s Office] and the Richmond Co[.] Jail, 10/23/2008[.
We] still want [Appellant,] please lodge against him. Any questions please
contact me at the above information.” BCSO Fax Message, 9/4/2012. BCSO
received no response or acknowledgement of this message. Thereafter, BCSO
took no further action for six additional years.
On June 18, 2018, BCSO faxed another request for the entry of a
detainer on Appellant to GA DOC.5 That same day, GA DOC sent an
the course of BCSO’s stewardship of Appellant’s case, it was transferred among at least three different investigators.
4 The individual nominally associated with Valdosta State Prison was not amongst the contacts provided to BCSO by the Richmond County Sheriff’s Office, and the certified record is silent as to why BCSO elected to fax them.
5 It is unclear from the certified record what prompted BCSO to inquire about Appellant’s status nearly six years after it faxed GA DOC. There is no indication that GA DOC alerted BCSO that Appellant’s release was imminent prior to this fax message in 2018. The only other relevant event immediately preceding BCSO’s belated message noted in the certified record was an audit of the BCSO offices, which apparently began on May 31, 2018.
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acknowledgement confirming the entry of the detainer. By this point,
Appellant had been incarcerated in Georgia for nearly a decade and was
scheduled to be released on October 15, 2018. BCSO finally took him into
custody on October 25, 2018.
Appellant filed an omnibus pretrial motion requesting that his case be
dismissed pursuant to Rule 600(a)(2)(A). Specifically, Appellant argued that
the Commonwealth had failed to exercise due diligence in making him
available for trial. See Appellant’s Omnibus Motion, 1/7/19, at ¶ 13. A
hearing on Appellant’s Rule 600 motion was held. Following extensive
testimony from BCSO, the trial court denied Appellant’s motion.
On April 1, 2019, a bench trial was held on the outstanding escape
charge. On the basis of stipulated and uncontested factual evidence, the trial
court found Appellant guilty of escape. On September 8, 2019, Appellant was
sentenced to three and one-half to seven years of incarceration.6 Appellant
filed a timely appeal.7 Both Appellant and the trial court timely complied with
Pa.R.A.P. 1925.
Appellant has preserved and presented a single issue for our
consideration: “Did the trial court err in denying Appellant’s motion to dismiss
as the Commonwealth had violated Appellant’s speedy trial rights pursuant to ____________________________________________
6 At the time that he was sentenced on this charge, Appellant was also serving the balance of his outstanding robbery sentence.
7 On October 4, 2019, the trial court entered an order restoring Appellant’s direct appellate rights nunc pro tunc with the agreement of all parties. Appellant’s notice of appeal was filed the same day.
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Rule 600(A)(2)(a)?” Appellant’s brief at 4. Specifically, Appellant argues that
BCSO failed to exercise due diligence by not effectuating Appellant’s
extradition in a timely fashion. Id. at 11.
Our Supreme Court has provided a cogent and thorough discussion of
our standard and scope of review in this context:
Our standard of review of a Rule 600 determination is whether the trial court abused its discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will . . . discretion is abused. Our scope of review is limited to the record evidence from the speedy trial hearing and the findings of the lower court, reviewed in the light most favorable to the prevailing party.
Commonwealth v. Selenski, 994 A.2d 1083, 1087-88 (Pa. 2010) (internal
citations and quotations omitted). Overall, Rule 600 protects “a defendant’s
speedy trial rights, as well as society’s right to effective prosecution of criminal
cases. To balance these rights, [Rule 600] requires the court to consider
whether the Commonwealth exercised due diligence, and whether the
circumstances occasioning the delay of trial were beyond the Commonwealth’s
control.” Id. at 1088.
Appellant was charged on October 10, 2008, when BCSO filed a written
complaint. As such, the Commonwealth was required to bring Appellant to
trial within 365 days of that filing. See Pa.R.Crim.P. 600(A)(2)(a). Appellant
was not brought to trial until April 1, 2019, or more than ten years after the
expiration of Appellant’s “mechanical” run date under Rule 600. However, our
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calculation of Appellant’s “adjusted” Rule 600 run date is more nuanced. See
Commonwealth v. Barbour, 189 A.3d 944, 947 (Pa. 2018) (“[T]he Rule 600
run date may be adjusted pursuant to the computational directives set forth
in Subsection (C) of the Rule.”). For the purposes of computing this time
under Rule 600, periods of delay at any stage of the proceedings that are
attributable to the Commonwealth’s failure to exercise due diligence are
included in the computation of time within which trial must commence. See
Pa.R.Crim.P. 600(C)(1). Any other periods of delay are excluded. Id. “Stated
in the most general terms, when the Commonwealth causes delay, the Rule
600 clock continues to tick; when the defendant causes the delay, the clock
stops.” Barbour, supra at 958.
Instantly, Appellant’s arguments are focused exclusively upon his
incarceration in Georgia, during which time he alleges that the Commonwealth
failed to exercise due diligence in securing him for trial.8 See Appellant’s brief ____________________________________________
8 The Commonwealth argues that because Appellant escaped, the entirety of his time spent incarcerated in Georgia should be excluded from our Rule 600 assessment. See Commonwealth’s brief at 10 (citing Commonwealth v. Polsky, 426 A.2d 610, 613 (Pa. 1981) (“[I]f the unavailability of the defendant causes a delay at an initial stage, the period of delay is excluded from the period set by [the speedy trial rule], regardless of what happens later.”)). However, Pennsylvania law provides that a defendant is only deemed “unavailable” during time periods when his location and status cannot be discovered by due diligence. See Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa.Super. 1991).
Although Appellant absconded from his work-release program in 2008, he was quickly apprehended in Georgia on separate charges mere days later. In sum, Pennsylvania authorities were unaware of Appellant’s location and status for
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at 11 (“Appellant was available for trial as he was continuously incarcerated
in the State of Georgia for ten years during which time the Commonwealth did
not act with due diligence to bring him to trial.”).
We note that “‘mere incarceration in another state does not make a
defendant unavailable within the meaning of Rule 600.’” Commonwealth v.
R. Booze, 947 A.2d 1287, 1291 (Pa.Super. 2008) (quoting Commonwealth
v. Kubin, 637 A.2d 1025, 1026 (Pa.Super. 1994)). Rather, “‘[a] defendant
is only unavailable if the delay in returning him to Pennsylvania is due to the
other state causing the delay; the prosecution, however, must exercise due
diligence in attempting to bring the defendant back for trial.’” Id.
The trial court concluded that the Commonwealth exercised due
diligence simply by lodging the initial detainer with the Richmond County
Sheriff’s Office on Appellant in October 2008: “In sum, it was apparent to the
Commonwealth in 2008 that the foreign jurisdiction would make Appellant
available for trial in Bucks County only after his incarceration in Georgia had
ended. Any further demand from the Commonwealth for extradition prior to
[Appellant’s] release from incarceration would have seemed futile.” Trial
Court Opinion, 11/20/19, at 7.
only six days. In this respect, Appellant’s absence from Pennsylvania after his arrest in Georgia was no longer the direct result of his voluntary decision to remain abroad. Accord Commonwealth v. Barbour, 189 A.3d 944, 958 (Pa. 2018) (“This causal relationship between a period of delay and the actions of the parties is a cornerstone of not only the Rule 600 computation, but also of longstanding constitutional speedy trial jurisprudence[.]”).
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Specifically, the trial court found Appellant’s case analogous to this
Court’s holding in Commonwealth v. McNear, 852 A.2d 401 (Pa.Super.
2004). In that case, Pennsylvania authorities sought to extradite McNear to
stand trial for narcotics charges while he was serving multiple sentences of
incarceration in the State of New Jersey. Id. at 403-04. New Jersey opposed
McNear’s extradition and clearly communicated that he would not be made
available for trial in Pennsylvania until his New Jersey sentences were
completed. Approximately two years elapsed before McNear entered a guilty
plea in Pennsylvania, and he argued that the Commonwealth had violated Rule
600 by not securing him for trial sooner. This Court held that “in view of the
fact that the New Jersey authorities opposed extradition, the Commonwealth
was not necessarily compelled to proceed . . . where to do so would no doubt
have been fruitless.” Id. at 407. Thus, we found the time period of Appellant’s
New Jersey incarceration to be excludable under Rule 600. Id.
McNear is inapposite to the present circumstances. The holding in that
case was grounded in the existence of clear communications from the out-of-
state officials indicating that it was unwilling to extradite the defendant. Id.
Our review of the certified record in the present case reveals no such
communications from GA DOC indicating that it was unwilling or unable to
extradite Appellant during his post-conviction incarceration. To the contrary,
the communications from the Richmond County Sheriff’s Office advised only
that Appellant would be unavailable for extradition while he was in custody
during the adjudication of his charges. These communications do not suggest
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that this unavailability extended to any resulting incarceration that might
follow. Rather, the possibility of future extradition was explicitly left open,
particularly in light of the fact that Appellant executed an anticipatory waiver
of extradition.
Stated simply, the trial court’s conclusion that BCSO somehow knew in
2008 that Georgia would be unwilling to extradite Appellant is unsupported by
the certified record. In October 2008, Appellant had not yet been convicted
or sentenced in Georgia. Thus, BCSO could only have been aware that: (1)
Appellant’s extradition would have to wait until the adjudication of his pending
charges in Georgia; and (2) if Appellant was convicted, BCSO would have to
file an additional detainer with GA DOC assuming Appellant received a state
sentence of incarceration. Yet, BCSO took no action and made no further
inquiries concerning Appellant for more than four years. For fully two of those
years, Appellant had already been transferred to the custody of GA DOC.
BCSO finally followed up in September 2012, and was again informed of
the necessity of lodging a detainer with GA DOC. BCSO may have faxed a
detainer, but it obtained no response or acknowledgement that it had been
received. Critically, GA DOC never advised that Appellant would be
unavailable for extradition to Pennsylvania while he was serving his sentence
until 2018. There is simply no indication in the certified record that GA DOC
was unwilling or unable to extradite Appellant to Pennsylvania for trial prior to
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that time.9 Even viewing the available evidence in the light most-favorable to
the Commonwealth, BCSO can only be fairly characterized as assuming
without actual knowledge that Appellant was “unavailable” for nearly a
decade. Thus, the PCRA court’s reliance upon McNear is misplaced.
Instead, these periods of protracted delay speak to a significant lack of
due diligence on the part of BCSO. Tellingly, BCSO offered no explanation for
these periods of delay at the Rule 600 hearing. See N.T. Hearing, 1/23/19,
at 66-69. In particular, our review of the certified record confirms two
troubling chronological gaps in Appellant’s case that evince a lack of due
diligence by the Commonwealth: (1) the two-year period of delay from
Appellant beginning to serve his sentence in GA DOC’s custody until BCSO
attempted to submit a detainer to GA DOC;10 and (2) the six-year period delay
9 The June 18, 2018 acknowledgement that GA DOC sent to BCSO stated that Appellant would be unavailable for extradition until he had completed his sentence. By that point, mere months remained until Appellant’s release date. This was the first and only communication that BCSO received from GA DOC indicating that Appellant was not readily available for extradition. Further, the certified record contains no other evidence to suggest that GA DOC’s position regarding Appellant’s need to complete his sentence was or would have been the same had the Commonwealth inquired earlier.
10 Prior to Appellant’s transfer to the custody of GA DOC, BCSO had lodged a valid detainer for his extradition. Once Appellant’s began serving his sentence in the custody of GA DOC, that detainer was no longer valid. This was the potential issue that the Richmond County Sheriff’s Department alerted BCSO to in multiple communications between 2008 and 2012. This time period represents the approximately two years during which Appellant was in GA DOC custody, and BCSO took no action regarding the case.
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from BCSO’s submission of an unanswered detainer to GA DOC in 2012 until
BCSO sent another communication concerning his extradition in 2018.
With respect to the first period of time, BCSO waited approximately two
years after Appellant began serving his sentence in GA DOC custody before
even attempting to lodge a detainer with the proper authorities, or initiate
extradition proceedings.11 Our case law is replete with precedent holding the
Commonwealth accountable for such unexplained delays in initiating
extradition proceedings. R. Booze, supra at 1292-93 (holding time period
during which Commonwealth failed to initiate extradition proceedings counted
against them for speedy trial purposes); see also Commonwealth v. ____________________________________________
-11 We recognize that the Richmond County Sheriff’s Office represented that it would inform BCSO if Appellant was convicted and sentenced. See Richmond County Email of 10:40 a.m., 10/28/08. We also note that Pennsylvania law enforcement officials are entitled to rely upon such representations in the context of Rule 600. See Commonwealth v. Emmett, 417 A.2d 1232, 1235-36 (Pa.Super. 1979) (endorsing “reliance on other authorities” to inform the Commonwealth regarding the status of a case for speedy trial purposes). However, such reliance must still be reasonable in scope and duration. Even with valid assurances from the Richmond County Sheriff’s Office, four years of inaction with no new information regarding Appellant’s case (i.e., from October 2008 until September 2012) evinces a lack of due diligence by BCSO. See, e.g., Commonwealth v. Kubin, 637 A.2d 1025, 1027-28 (Pa.Super. 1994) (holding that the Commonwealth has a duty to act or inquire in the face of inaction or silence from representatives of a foreign jurisdiction).
Even assuming, arguendo, the Commonwealth reasonably relied upon the Richmond County Sheriff’s Office for the entirety of this four-year period, our holding would be unchanged. After BCSO was informed of Appellant’s incarceration and unsuccessfully attempted to lodge a detainer with GA DOC in September 2012, it then waited six years before taking any further action on Appellant’s case. During this second span of time, BCSO was not relying upon any relevant assurances from Georgia officials.
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Alexander, 464 A.2d 1376, 1384-85 (Pa.Super. 1983) (same);
Commonwealth v. McNeal, 396 A.2d 424, 426-27 (Pa.Super. 1978) (en
banc) (same); Commonwealth v. Kovacs, 378 A.2d 455, 458 (Pa.Super.
1977) (en banc) (same). This first period of delay is readily analogous to the
foregoing line of cases because BCSO has offered no cogent explanation or
justification for its actions. Accordingly, this time counts against the
Commonwealth for the purposes of calculating Appellant’s Rule 600 run date.
Even after BCSO faxed a detainer to GA DOC in September 2012, it
received no response or confirmation. Rather than following up in a timely
fashion, BCSO elected to wait six additional years before inquiring about the
status of Appellant’s detainer and extradition. This period of time further
evinces a lack of due diligence because BCSO did not receive any
communications from Georgia officials confirming that a detainer had been
lodged and the extradition process had been successfully initiated. “‘While we
recognize that the Commonwealth cannot force another jurisdiction to act,
inaction on the Commonwealth’s part, without some reliance on the
assurances of the other state, does not constitute due diligence.’” R. Booze,
supra at 1291 (quoting Kubin, supra at 1027).
This second period of delay is readily analogous to our holding in Kubin.
In that case, the defendant was out on bail for criminal charges that were
pending in Pennsylvania, but was separately arrested, convicted, and
incarcerated in New Jersey while awaiting trial. The Commonwealth received
notice that Kubin had waived extradition, and submitted a request for New
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Jersey to extradite him for trial. New Jersey officials did not respond to the
request, and the Commonwealth took no further action for 198 days. On
appeal, this Court concluded that this period of time counted against the
Commonwealth for the purposes of calculating whether it had violated Kubin’s
speedy trial rights: “Here, the [Commonwealth] did not rely on assertions
from New Jersey officials that Kubin would not be returned. On the contrary,
the extradition secretary failed to act despite being told by the New Jersey
official that Kubin was not fighting extradition.”12 Kubin, supra at 1027.
Even in the absence of any obvious impediments to Appellant’s
extradition, BCSO failed to take any further action on its detainer and
extradition request with GA DOC for nearly six years. As in Kubin, BCSO has
offered no explanation for this lengthy oversight. Accordingly, this time
counts against the Commonwealth for the purposes of calculating Appellant’s
Rule 600 run date. Accord Kubin, supra at 1027-28; see also R. Booze,
supra at 1293 (“[D]ue diligence was not shown as there was no
insurmountable impediments obstructing the Commonwealth from bringing
[the defendant] to trial in Pennsylvania.”).
Notably, either one of these periods of time is individually long enough
in duration to trigger a violation under Rule 600(A)(2)(a). Viewed collectively,
we believe the necessary result under Rule 600 is beyond cavil. Based upon
12 This Court’s legal rationale in Commonwealth v. Kubin, 637 A.2d 1025, 1026-27 (Pa.Super. 1994), was explicitly reaffirmed in Commonwealth v. R. Booze, 947 A.2d 1287, 1291-93 (Pa.Super. 2008).
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the foregoing discussion, we hold that both of these periods of time should be
included in the computation of time under Rule 600 based upon the failure of
BCSO to act with due diligence. Accord R. Booze, supra at 1292-93; Kubin,
supra at 1027. Considering these long periods of unexcused delay, the
Commonwealth violated Rule 600. See Pa.R.Crim.P. 600(C)(1). Thus, we
vacate Appellant’s judgment of sentence and reverse his conviction for escape.
Judgment of sentence vacated. Conviction reversed. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/17/20
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