Commonwealth v. Colon

464 A.2d 388, 317 Pa. Super. 412, 1983 Pa. Super. LEXIS 3641
Supreme Court of Pennsylvania·Decided July 29, 1983·No. 2727·Published·Cited by 38 cases

Opinions

CIRILLO, Judge:

At 10:14 p.m. on April 10, 1977, Philadelphia Police responded to a silent alarm going off in a bar on North Second Street in Philadelphia. They found Antonio Colon and a man named Martinez hiding on the first-story roof of the bar near a place where the second-story wall of the bar had been broken in. The police found marked bills on Martinez which the owner of the bar later identified as money kept in the bar for use in the juke box. After a trial by stipulation on December 12, 1979, Judge Thomas A. White found Colon guilty of burglary and conspiracy. Colon’s post-verdict motions were denied and he was sentenced to concurrent terms of three years’ probation. Colon appeals, claiming that his right to a speedy trial was violated. Pa.R.Crim.P. 1100, 42 Pa.C.S.

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At the outset, the Commonwealth urges us to quash Colon’s appeal for failure to comply with the Rules of Appellate Procedure. Indeed, the brief prepared by appellant’s counsel fails utterly to conform with the most basic rules governing brief-writing. Rule 2111(a), 42 Pa.C.S., provides:

General rule. The brief of the appellant ... shall consist of the following matters, separately and distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of the questions involved.
(4) Statement of the case.
(5) Summary of argument.
(6) Argument for appellant.
(7) A short conclusion stating the precise relief sought.
(8) The opinions and pleadings specified in Subdivisions
(b) and (c) of this rule.

[417] Rules 2114 through 2119 describe in detail the required content of each of the matters listed in Rule 2111(a). Appellant has violated each and every one of these rules. His brief consists of two sections, one labelled “Question,” the other “Index/History of the Case.” The “Question” is not a question at all, but a strange admixture of argument and fact. The “History of the Case” is hardly distinguishable in content from the “Question.” Both sections contain misstatements and confusions of fact. Had we not availed ourselves of the Commonwealth’s brief and the record of the post-verdict motions hearing in the trial court, we would be unable to determine what appellant’s Rule 1100 argument is. The defects in appellant’s brief are substantial; we have not hesitated to quash appeals on the basis of similarly defective briefs. E.g., Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982); Commonwealth v. Wyant, 254 Pa.Super. 464, 386 A.2d 43 (1978). See Pa.R.A.P. 2101, 42 Pa.C.S. However, appellant’s Rule 1100 argument was diligently presented and preserved at every stage of the trial proceedings. By referring to the transcript of the post-verdict motions hearing, we can formulate precisely the issues appellant attempts to pursue on appeal: he seeks to challenge the validity of two extensions granted to the Commonwealth under Pa.R.Crim.P. 1100(c). It would be unjust to quash his appeal on the grounds of appellate counsel’s derelictions, and, in our discretion, we will decide the case on the merits. See Commonwealth v. Jones, 256 Pa.Super. 366, 389 A.2d 1167 (1978).

The procedural history of this case is long and tortuous. After arresting appellant, the police on April 11, 1977, filed a complaint charging him with burglary, theft, and conspiracy. Therefore, the Commonwealth had until October 10, 1977, to bring him to trial. Pa.R.Crim.P. 1100(a)(2); 1 Pa.C.S. § 1908.1 Obviously, the trial date of December [418]*41812, 1979, was far beyond the original Rule 1100 run date. The rule mandates that a defendant be discharged unless all periods of delay beyond the run date are accounted for either by an extension granted to the Commonwealth pursuant to Rule 1100(c), or by an exclusion of time under Rule 1100(d).2 Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982). The Commonwealth applied for its first extension in this case on August 1, 1978. Although the record is scanty on this point, it appears that appellant had made himself unavailable for much of the intervening time. At the hearing on the Commonwealth’s first extension petition on April 11, 1979, the court excluded 607 days under Rule 1100(d). The court calculated an amended run [419] date of June 6, 1979, and also granted an extension to that date. Eventually, appellant’s case was scheduled- to be tried on June 5, 1979. When the case was. called that morning, however, neither appellant nor the complaining witness, each of whom had been duly notified of the trial date, was present in court. The court issued bench warrants. Appellant appeared late, and the warrant bn him was withdrawn; the warrant on the complainant was executed, and he was brought in. However, by that time, appellant’s case had been passed, and the court was unable to try him that day. On June 6, the Commonwealth again petitioned for an extension. At a hearing held on July 10, 1979, the court, pursuant to Rule 1100(c), granted the Commonwealth an extension to Monday, July 16, 1979. Up to this point, appellant challenges neither the propriety of the extensions granted to the Commonwealth nor the ex-cludability of the 607 days for which the court found him unavailable.3

Trial was rescheduled for July 12, 1979. This time appellant did not appear for trial. He was in prison and was not brought down to court. The next day, the Commonwealth petitioned for a third extension, alleging that it could not bring appellant to trial before the run date despite its due diligence. On August 2, 1979, the court found that the Commonwealth had exercised due diligence, and granted the Commonwealth a third extension to September 13, 1979. Appellant’s first contention on appeal is that the Commonwealth was not entitled to the August 2 extension, and that consequently he should have been discharged.

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Commonwealth v. Colon, 464 A.2d 388, 317 Pa. Super. 412, 1983 Pa. Super. LEXIS 3641 (Pa. 1983).

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