Commonwealth v. Baird

919 A.2d 258, 2007 Pa. Super. 53, 2007 Pa. Super. LEXIS 266

• Court: Superior Court of Pennsylvania
• Decided: February 28, 2007
• Status: Published

Opinions

OPINION BY

McCAFFERY, J.:

¶ 1 The Commonwealth of Pennsylvania appeals from the order that dismissed the criminal charges brought against Scott D. Bail'd, Appellee, on the basis that the Commonwealth had failed to bring Appel-lee to trial within the 365-day time period specified in Pa.R.Crim.P. 600. Specifically, the Commonwealth asks us to determine whether the trial court erred in including within the 365-day period the time between the date of Appellee’s scheduled arraignment, at which he did not appear, and the date of the ultimate apprehension of Appellee some fourteen months later. Because we conclude that the trial court did err in determining that Appellee had insufficient notice of the date of the arraignment, we reverse and remand for further proceedings.

¶ 2 The pertinent factual and procedural background of this matter is as follows. On February 27, 2003, Appellee was charged with burglary, robbery and resisting arrest in connection with an incident at a beer distributor in Westmoreland County, and he was subsequently released on bail. On March 11, 2003, Appellee’s counsel, Kevin Zinski, Esquire, waived Appel-lee’s preliminary hearing and signed the notice of arraignment, scheduled for April 25, 2003. However, Mr. Zinski never advised Appellee, who had not been present at the waived preliminary hearing, of the date of the arraignment, and neither Mr. Zinski nor Appellee appeared at the arraignment. As a result of Appellee’s failure to appear at the arraignment, the trial court issued a bench warrant for Appel-lee’s arrest. On June 21, 2004, Appellee was stopped for a motor vehicle violation in Allegheny County and was arrested on the basis of the outstanding Westmoreland County warrant. The trial court vacated the warrant on the following day, and Ap-pellee was once again released from custody on bail.

¶ 3 After several defense-requested continuances due to the unavailability of counsel, trial was scheduled for April 4, 2005. On February 15, 2005, Appellee filed a motion to dismiss based on the Commonwealth’s failure to bring Appellee to trial within 365 days after his arrest, pursuant to Pa.R.Crim.P. 600. After conducting an evidentiary hearing on the Rule 600 motion, the trial court granted the motion and dismissed the charges. The Commonwealth filed this timely appeal, raising the following two issues for our review:

I. Whether [Appellee] had been afforded reasonable notice of his formal arraignment date (thereby rendering him unavailable for the purposes of Rule 600) when his attorney signed the official court arraignment form and subsequently neglected to advise [Appellee] of the date?

II. Whether the granting of a request for a bench warrant of arrest and the entry of the warrant into the statewide “CLEAN” system constitutes due diligence by the Commonwealth in its effort to bring [Appel-lee] to trial?

(Commonwealth’s Brief at 4).¹

¶4 Our review of challenges to Rule 600 rulings is guided by the following principles:

Our standard of review relating to the application of Rule 600 is whether the trial court abused its discretion. Our scope of review is limited to the evidence on the record of the Rule 600 evidentia-ry hearing and the findings of the trial court. We must view the facts in the fight most favorable to the prevailing party.

Commonwealth v. Malgieri, 889 A.2d 604, 606 (Pa.Super.2005).²

¶ 5 As a general rule, the Commonwealth is required to bring a defendant on bail to trial within 365 days of the date the complaint was filed. Pa.R.Crim.P. 600(A)(3); Commonwealth v. Hyland, 875 A.2d 1175, 1189 (Pa.Super.2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005). However, in determining the period within which trial must commence, any period of delay that results from the unavailability of the defendant or his attorney or from any continuance granted at the request of the defendant or his attorney is excluda-ble. Pa.R.Crim.P. 600(C)(3); Hyland, supra at 1189-90. A defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is deemed unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978); Commonwealth v. Vesel, 751 A.2d 676, 680 (Pa.Super.2000).

¶ 6 Notice of an upcoming court date to someone other than the defendant may constitute proper notification of the date to the defendant. See Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111, 1116 (1983) (holding that where defense counsel requested a continuance, oral notice to defense counsel of new trial date sufficed as proper notification to defendant of new trial date); Commonwealth v. Cornish, 311 Pa.Super. 72, 457 A.2d 118, 121 (1983) (stating that notice of a preliminary hearing contained on a bail certificate signed by defendant’s surety was adequate notice of the hearing to the defendant). Further, where a defendant fails to appear, upon the advice of counsel, at a scheduled hearing of which he has been properly notified, counsel’s subsequent claimed inadvertent failure to file a waiver of arraignment form is imputed to the defendant. Commonwealth v. Snyder, 373 Pa.Super. 582, 542 A.2d 95, 98-99 (1988).

¶ 7 On the basis of the foregoing, we hold that it is the responsibility of defense counsel to advise a defendant of court proceedings requiring the defendant’s presence. Where defense counsel has actual notice of a proceeding and fails to so inform his or her client, the onus and consequences of such failure fall upon the defendant. The defendant’s failure to appear at the court proceeding, therefore, renders the defendant unavailable during the entire period between the date of the proceeding and the defendant’s subsequent apprehension by police.

¶ 8 In the case sub judice, we determine that notice to Appellee’s counsel constituted proper notification to Appellee of the date of his arraignment. As such, Appel-lee’s failure to appear at the arraignment on April 25, 2003, rendered him unavailable for trial. Therefore, the period between April 25, 2003, and June 21, 2004, constitutes excludable time for purposes of determining the time within which the Commonwealth was required to commence Appellee’s trial under Rule 600. Thus, we conclude that the trial court erred in holding that the Commonwealth’s failure to try Appellee during this period was not attributable to Appellee’s unavailability. When the period of Appellee’s unavailability, coupled with the continuances occasioned by the requests of Appellee’s counsel subsequent to Appellee’s apprehension, is excluded from the calculation of the 365-day period within which the Commonwealth had to bring Appellee to trial, it is clear that the scheduling of Appellee’s trial for April 4, 2005, fell within the 365-day period.

¶ 9 Accordingly, based on the above, we reverse the order granting Appellee’s motion to dismiss and remand for further proceedings consistent with this opinion.

¶ 10 Order reversed. Case remanded. Jurisdiction relinquished.

¶ 11 HUDOCK, STEVENS, MUSMANNO, KLEIN and PANELLA, JJ. join in majority opinion. ¶ 12 JOYCE, J. files a concurring opinion in which STEVENS, KLEIN and PANELLA, JJ. join. ¶ 13 FORD ELLIOTT, P.J. files a concurring statement in which MUSMANNO and PANELLA, JJ. join. ¶ 14 BENDER, J. files a dissenting opinion.

1 . Based upon our resolution of the Commonwealth’s first issue, we do not reach the merits of the second issue.

2 . We are mindful that Rule 600 serves a dual purpose. The first is to protect the rights of the accused to a speedy trial; the second is to protect society. As a panel of this court has recently observed:

So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in a manner consistent with society’s right to punish and deter crime. In considering these matters, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Commonwealth v. Murray, 879 A.2d 309, 312-13 (Pa.Super.2005) (quotation and citation omitted; emphasis supplied).