Commonwealth v. McCulley

410 A.2d 1276, 270 Pa. Super. 115, 1979 Pa. Super. LEXIS 2995

• Court: Superior Court of Pennsylvania
• Decided: September 28, 1979
• Docket: 2679
• Status: Published

Opinions

GATES, Judge:

On September 2, 1976 a criminal complaint was filed charging appellant with burglary and attempted theft. He was apprehended on that date. A preliminary hearing was held on September 13, 1976 and the appellant was arraigned before the Court of Common Pleas of Bucks County on December 29, 1976. At arraignment appellant was notified that his trial date would be January 17, 1977.

On the scheduled date, the defendant failed to appear and a bench warrant was issued. The appellant was apprehended on March 7, 1977. On that day he was told that the next scheduled trial date was April 11, 1977. On that day appellant appeared with the public defender and requested a continuance in order to obtain private counsel. The Commonwealth objected but the trial court granted the continuance and set May 2,1977 as the trial date. Appellant voiced no objection to the new trial date.

On May 2, 1977 appellant appeared with the same public defender and again requested a continuance. The request was denied. Appellant filed a motion to dismiss pursuant to Rule 1100 which was dismissed after hearing.

Defendant was then convicted in a bench trial. Posttrial motions were filed and denied. Sentence was imposed and this appeal followed.

The issue before us is the propriety of the lower court’s refusal to dismiss the charges on appellant's claim that Rule 1100 was violated.

The criminal complaint was filed on September 2, 1976. Therefore, pursuant to Rule 1100(a)(2) ¹, trial should have commenced on or before March 7, 1977². Appellant’s trial was originally scheduled for January 17, 1977. The defendant did not appear and a bench warrant issued. At the May 2, 1977 hearing the Commonwealth demonstrated that the police officer made reasonable efforts to locate and apprehend appellant³. The appellant was not apprehended until March 7, 1977, a period of forty-eight (48) days from the date of the first scheduled trial. The Commonwealth contends that this period is excludable in the computation for the reason that appellant was unavailable for trial within the meaning of Rule 1100(d)(1)⁴. We agree.

At arraignment on December 29, 1976 appellant was notified by the Court of the scheduled trial on January 17, 1977. Additionally, the attorney for the Commonwealth sent written notice to the appellant and the letter was not returned. We conclude that the appellant was unavailable for a period of forty-eight (48) days within the meaning of Rule 1100(d)(1). Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978).

Excluding forty-eight (48) days from the computation, the second scheduled trial date of April 11, 1977 was well within the proscribed one hundred eighty (180) days.

The next period of twenty-two (22) days, excluded by the lower court, the appellant contends should not be excluded but should be counted under the provisions of Rule 1100(d)(2)⁵.

The Commonwealth contends that appellant knowingly waived his rights under Rule 1100 by appearing with counsel at the second trial date on April 11, 1977 and requesting a continuance in order to retain counsel of his own choosing.⁶ Over the Commonwealth’s objection, the trial court set May 2, 1977 as the do or die third trial date. This was with the express knowledge and consent of the appellant. The appellant knowingly waived Rule 1100 because the public defender representing him advised the court that there was a pending application to dismiss under Rule 1100 challenging the exclusion of the first forty-eight (48) day period. It is fair to assume appellant was aware of the rule’s mandate.⁷

We agree with the lower court’s findings that the waiver was an informed and voluntary decision on the appellant’s part and the appellant agreed to a trial date beyond the one hundred eighty (180) day period. We conclude then that the trial held on May 2, 1977 occurred within one hundred seventy-three (173) days of the filing of the complaint, excluding the two periods we have discussed above. Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979); Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Shields, 247 Pa.Super. 74, 371 A.2d 1333 (1977); Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975); Commonwealth v. Coleman, 241 Pa.Super. 450, 454-55, 361 A.2d 870, 872 (1976).

PRICE, J., files a dissenting opinion.

1 . Pa.R.Crim.P. 1100(a)(2) provides:

“Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”

2 . Calculation made in compliance with 1 Pa.C.S.A. § 1908 which mandates exclusion of the first day and inclusion of the last. See Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977).

3 . The prosecutor went to the Camelot Apartment Complex, the address given by appellant at preliminary arraignment, on at least two occasions. The first time he spoke to appellant’s sister who had no idea where appellant was living. The next time he spoke with the woman appellant was supposedly living with and she reported that she hadn’t seen him in months. These efforts, coupled with both oral and written notice of the first trial dates constitute due diligence on the part of the Commonwealth in our judgment. (See Notes of Testimony on the May 2, 1977 hearing.) However, due diligence on the part of the Commonwealth is not required under these circumstances. See Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978).

4 . Pa.R.Crim.P. 1100(d)(1) provides:

“(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:

“(1) the unavailability of the defendant or his attorney.”

5 . Pa.R.Crim.P. 1100(d)(2) provides:

“(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.”

6 . The folks are as smart as the people. It is not particularly astute to suggest that appellant would be before us on a “right of counsel” claim if the trial judge would have forced appellant to trial without counsel of his choosing as he requested.

7 . We are not unaware of the existence of Sections (d)(2) of Rule 1100 as relied upon in the dissenting opinion. However, apart from the fact that the Rule’s thirty-day exclusion defies logic, the application of the speedy trial rule to this case is too illogical to comprehend. It was the appellant who caused all of the delay and now complains that his rights to a speedy trial have been denied. It is rather difficult to understand that a man is entitled to a dismissal of serious criminal charges on the grounds that his precious right to a speedy trial was denied to him when the facts demonstrate unequivocally that he probably did not want a trial at all, much less a speedy one, and that the Commonwealth was at all times prepared to proceed and afford him his precious right, but was frustrated by the defendant’s conduct in either being unavailable or asking for a continuance in order to secure private counsel. Sometimes at law we overlook the fact that we should interpret the law so that it makes at least the impression of containing a little common sense.