J-A07016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

DAREL BARBOUR

                         Appellee                   No. 260 WDA 2015


                  Appeal from the Order January 20, 2015
            In the Court of Common Pleas of Washington County
            Criminal Division at No(s): CP-63-CR-0001701-2003
                                        CP-63-CR-0002018-2003


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                            FILED JULY 22, 2016

      The Commonwealth appeals from the January 20, 2015 order,

granting Appellee, Darel Barbour’s, motion to dismiss with prejudice

pursuant to Pennsylvania Rule of Criminal Procedure 600.       After careful

review, we reverse and remand for further proceedings.

      The trial court summarized the relevant procedural history of these

cases as follows.

                   As there are two separate case numbers, and
            two distinct Rule 600 violations at issue, [the trial
            c]ourt shall address the history of each case number
            individually.

                                    2018-2003

                 On August 4, 2003, the Washington City Police
            Department filed a criminal complaint against
            [Appellee] that contained the following charges:
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          Accidents Involving Damage of an Attended Vehicle,
          75 Pa.C.S.A. § 3743([a]), Possession of Marijuana,
          35 [P.S. § 780-113(a)(30)], Driving without a
          License, 75 Pa.C.S.A. § 1501, and Operating a
          Vehicle Without Required Financial Responsibility, 75
          Pa.C.S.A. § 1786. On August 28, 2003, a warrant
          was issued for [Appellee]’s arrest, although he had
          been incarcerated on August 27, 2003 at case
          number 1701-2013.           On September 4, 2003[,
          Appellee] was arraigned on the charges and his bail
          was set at the monetary amount of $10,000. On the
          same date, a preliminary hearing was scheduled for
          September 12, 2003 before the magisterial district
          judge.       On September 12, 2003, [Appellee]
          requested to continue the preliminary hearing, and it
          was ultimately rescheduled for October 20, 2003.
          On that date, [Appellee] waived the preliminary
          hearing and accordingly the charges were bound
          over to the [trial court]. During that proceeding, the
          magisterial district judge also modified [Appellee]’s
          bail to an unsecured amount of $10,000.

                 The next action at this case number occurred
          on September [14], 2004, wherein a bench warrant
          was issued for [Appellee]’s failure to appear. Then,
          on September 17, 2004, Senior Judge Bell issued
          another order vacating that warrant due to the
          “confusion   regarding    notice    to  counsel     for
          [Appellee].” Order dated September 17, 2004. This
          order also stated “[t]he [Appellee] and counsel are
          expected to be prepared for a call of the list for the
          October 2004 trial term.”    On October 18, 2004, a
          bench warrant was issued for [Appellee] for “his
          failure to appear before the [trial c]ourt.”       On
          November 15, 2004, another bench warrant was
          issued for [Appellee] upon his failure to appear for
          trial.

                               1701-2003

                On August 20, 2003, the East Washington
          Police Department filed a criminal complaint against
          [Appellee], which contained the following charges:
          Aggravated Assault with a Weapon, 18 Pa.C.S.A.

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          § 2702(a)(4),   Recklessly    Endangering    Another
          Person, 18 Pa.C.S.A. § 2705, two counts of Robbery,
          18 Pa.C.S.A. § 3701(a)(1)(ii), two counts of Theft by
          Unlawful Taking, 18 Pa.C.S.A. § 3921(a), and
          Criminal Conspiracy, 18 Pa.C.S.A. § 903(a)(1). On
          the same date, a warrant was issued for [Appellee]’s
          arrest by the magisterial district judge. Thereafter,
          on August 27, 2003, [Appellee] was arraigned and
          then placed in the Washington County Correctional
          Facility.   On September 2, 2003, Attorney Gary
          Graminski was appointed as conflict counsel to
          represent [Appellee].

                On September 4, 2003, a preliminary hearing
          was scheduled, and following a hearing, all of the
          aforementioned charges were held for court.     The
          record indicated that on November 20, 2003, the
          Honorable Senior Judge John F. Bell scheduled a
          bond reduction hearing for [Appellee] at this case
          number, but apparently the hearing was never held
          and no action was ever taken. Thereafter, on March
          5, 2004, a Rule 600 nominal bail hearing took place
          before Senior Judge Bell. After a hearing, Senior
          Judge Bell issued the following order:

                AND NOW, this 5 day of March, 2004, upon
                [Appellee]’s Motion to place [Appellee] on
                nominal bond under the Pennsylvania Rules of
                Criminal Procedure 600; i.e. [Appellee] has
                been incarcerated since August 20, 2003, and
                there have been no time periods excluded for
                continuances or unavailability, therefore, under
                the Rule [Appellee] is entitled to be released
                from the Washington County Correctional
                Facility upon nominal bond.

          Order [docketed] March 8, 2004.     Accordingly,
          [Appellee] was released upon nominal bond from
          incarceration.

                According to the official docket, the next action
          taken at this case number was a bench warrant
          issued for [Appellee] on September 14, 2004. Then,
          on September 17, 2004, Senior Judge Bell issued an

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J-A07016-16


          order vacating that warrant due to the “confusion
          regarding notice to counsel for [Appellee].”   Order
          dated September 17, 2004. This order also stated
          “[t]he [Appellee] and counsel are expected to be
          prepared for a call of the list for the October 2004
          trial term.” Id. On October 18, 2004, Senior Judge
          Thomas D. Gladden issued a bench warrant for
          [Appellee] upon his failure to appear for court. On
          November 15, 2004, another bench warrant was
          issued for [Appellee] because he failed to appear for
          trial.

              Procedural History after September 9, 2014

                On September 8, 2014, [Appellee] was
          arrested on the outstanding warrants described
          above. On September 9, 2014, [Appellee] appeared
          before th[e trial c]ourt for a bench warrant hearing
          and the [trial c]ourt lifted the warrant, set
          [Appellee]’s bail at the monetary amount of $10,000,
          with 10% acceptable at each case number, and
          scheduled the cases for a plea hearing on September
          29, 2014.        On September 29, 2014, [Appellee]
          requested a jury trial for both cases, and he was
          then scheduled by th[e trial c]ourt to begin trial on
          October 20, 2014. Subsequently, on October 3,
          2014, [Appellee]’s counsel filed a Motion to Dismiss
          Pursuant to [Rule] 600 for both case numbers, and
          the [trial c]ourt scheduled a hearing for this matter
          on December 29, 2014 at 9:30 a.m.

                                   …

                 ADA [Josh] Carroll was the only witness who
          testified at the hearing. Assistant District Attorney
          Ride and Defense Attorney Camson presented oral
          argument on the matter. Following the hearing, the
          [t]rial [c]ourt issued a briefing schedule. On January
          20, 2015, in consideration of the Motion to Dismiss
          Pursuant to Rule 600 filed by [Appellee], and after a
          review of the briefs submitted by the parties,
          testimony presented at the hearing on December 29,
          2014, pertinent case law, and the official record, the


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             [t]rial [c]ourt dismissed all charges filed at the
             above-captioned case numbers with prejudice.

Trial Court Opinion, 4/2/15, at 1-4, 7-8 (footnotes omitted). On February 9,

2015, the Commonwealth filed a timely notice of appeal.1

       On appeal, the Commonwealth raises the following issue for our

review.

             I.     Did the [t]rial [c]ourt err in dismissing the
                   charges at both case numbers for a violation of
                   Rule 600 of the Pennsylvania Rules of Criminal
                   Procedure?

Commonwealth’s Brief at 7.

       We begin by noting our well-settled standard of review regarding Rule

600.      “When reviewing a trial court’s decision in a Rule 600 case, an

appellate court will reverse only if the trial court abused its discretion.”

Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012).

             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, as shown by the evidence
             or the record, discretion is abused.

                   The proper scope of review … is limited to the
             evidence on the record of the Rule 600 evidentiary
             hearing, and the findings of the trial court.     An
             appellate court must view the facts in the light most
             favorable to the prevailing party.



1
 The Commonwealth and the trial court have complied with Pennsylvania
Rule of Appellate Procedure 1925.



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                                       …

                   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.

Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en

banc) (citations omitted), affirmed, 44 A.3d 655 (Pa. 2012).

      We elect to address only the Commonwealth’s waiver argument, as it

disposes of the entire appeal.       The Commonwealth avers that Appellee

waived his Rule 600 rights by failing to appear when his case was called for

trial on October 18, 2004.          Commonwealth’s Brief at 21.      Appellee

acknowledges that he did not appear on this date.2 Appellee’s Brief at 9, 12.

      In Commonwealth v. Steltz, 560 A.2d 1390, 1391 (Pa. 1989), the

defendant was scheduled for trial on February 9, 1987 and appeared for his

case to be called.   Id. at 1390.    However, when voir dire was scheduled to

begin that afternoon, Steltz “was not present and could not be located by his

attorney.” Id. at 1391. Steltz was apprehended 11 days later and his trial



2
   Moreover, the certified record reveals that Appellee was served with the
trial court’s September 17, 2014 orders placing his case on the October
2004 trial list. Trial Court Order, 9/17/14, at 1.




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was re-scheduled for May 4, 1987, whereas the Commonwealth’s Rule 600

time period lapsed on February 28, 1987.3 Id. at 1390-1391. On May 4,

1987, right before trial, Steltz filed a motion to dismiss under Rule 600. The

trial court granted the motion and this Court affirmed. Id. at 1391.

        Our Supreme Court reversed, rejecting the trial court’s theory that the

defendant’s 11-day absence should not be counted for Rule 600 purposes.

Instead, our Supreme Court adopted a broader rule of waiver, outside of the

calculation of the Rule 600 period.    Our Supreme Court succinctly held that

“[o]ne’s voluntary absence from a day set for trial within Rule [600] is a

waiver of that rule.” Id. Because Steltz voluntarily absented himself from

his own trial date, “trial thereafter is, at the reasonable convenience of the

court and the prosecuting authorities.” Id. Our Supreme Court emphasized

that Rule 600 is a procedural rule and was not designed to encourage

gamesmanship.

             It is a benefit to one charged that a trial date will be
             known as closely as possible on our crowded
             dockets.    A trial date for one person is a delay for
             another. When they voluntarily absent themselves,
             for whatever reason, they go to the end of the line
             and must wait their turn after the convenience of the
             others their absence delayed.        We cannot, with
             limited facilities, let one set the rules according to
             their whim, convenience or wrong.

Id. Therefore, our Supreme Court remanded Steltz’s case for trial. Id.



3
    We note at the time, Rule 600 was numbered as Rule 1100.



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      Recently in Brock, our Supreme Court reaffirmed Steltz’s viability.

Brock was charged with various offenses in 2003 and after several

continuances, his case was called for trial on March 8, 2005.      Id. at 1016.

However, Brock did not appear for trial and remained at large until he was

arrested on unrelated charges on January 25, 2006. Id. On May 24, 2007,

Brock made a motion for dismissal under Rule 600, which the trial court

granted, and this Court affirmed. Id. at 1016-1017.

      Our Supreme Court reversed, relevant to the instant appeal, based in

part on Steltz.   Reaffirming Steltz’s waiver rule, our Supreme Court again

stated that “Rule 600 was designed to prevent unnecessary prosecutorial

delay in bringing a defendant to trial.” Id. at 1021.

            However, when a defendant deliberately fails to
            appear in court on the day his case is listed for trial,
            these concerns simply are not implicated.       As we
            explained in Steltz, a trial date for one defendant is
            a delay for another, and the failure of a defendant to
            appear at any proceeding to which he was
            summoned impacts not only the trial judge,
            attorneys, and jurors, but also other defendants who
            are awaiting trial. The impact of the defendant’s
            failure to appear is equally adverse regardless of the
            stage of the proceedings; once a case has been is
            [sic] listed for trial, it is irrelevant whether the
            defendant absents himself before the proceedings
            commence or after a substantive event had
            occurred, as in Steltz.       A defendant cannot be
            permitted to frustrate the judicial process in this
            manner.




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J-A07016-16


Id. at 1022 (emphasis in original). Therefore, our Supreme Court concluded

that Brock’s trial shall be held “at the reasonable convenience of the trial

court.”4 Id.

     Turning to this case, it is not disputed that Appellee’s case was called

for trial in October 2004, and that Appellee voluntarily absented himself

from the grasp of the trial court for a decade.       We cannot condone such

behavior by permitting a defendant to file a motion to dismiss under Rule

600 after returning from ten years as a fugitive.       Therefore, taking into

account all of these considerations, we apply our Supreme Court’s precedent

that “a defendant’s voluntary absence from a scheduled trial date result[s] in

waiver of his rule-based right to a speedy trial.”5    Brock, supra at 1020.

Applying that rule to this case, it is not contested that Appellee’s case was



4
  The Commonwealth also relies on Justice Eakin’s concurrence in Bradford,
in which he noted his concerns about potential gamesmanship issues
inherent in the Rule 600 area.         Justice Eakin noted that whether a
defendant’s “right[s were] violated must also take into account when the
right was asserted[.]” Bradford, supra at 705 (Eakin, J., concurring). In
Justice Eakin’s view, “the adoption of a mechanical rule whereby the passage
of a specific amount of time automatically triggers the possibility of
dismissal, without taking into account the circumstances mentioned in
Barker[ v. Wingo, 407 U.S. 514 (1972)], merely set the stage for a
different form of evil: procedural gamesmanship.” Id. Justice Eakin noted
that Rule 600 “is not intended to afford a defendant a windfall by permitting
him to sit on the right and then call foul when it is too late for the
prosecution to do anything.” Id. at 706.
5
  We express no opinion as to whether a defendant also waives his or her
rights under the Sixth Amendment’s Speedy Trial Clause, as it is distinct
from Rule 600, and such a constitutional claim is not before us in this case.



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J-A07016-16


called for trial on October 18, 2004, and Appellee did not appear. Therefore,

Appellee waived his Rule 600 rights and could not file a Rule 600 motion

upon his return to the trial court ten years later.

      We recognize that in Steltz and Brock the defendants absconded

before the Commonwealth’s Rule 600 time had expired.           See generally

Brock, supra at 1015; Steltz, supra at 1390. However, as noted above,

our Supreme Court’s rule is clear, “[o]ne’s voluntary absence from a day set

for trial within Rule [600] is a waiver of that rule.”   Brock, supra at 1021

(emphasis in original), quoting Steltz, supra at 1391.        As former Chief

Justice Castille eloquently stated “it is not the proper function of the lower

courts to seek to narrow the plain import of [our Supreme] Court’s

unambiguous legal holdings.”         Id. at 1022 (Castille, C.J., concurring).

Therefore, in our view, even if the Commonwealth’s Rule 600 time had

expired before he absconded, Appellee still waived his Rule 600 rights.

            It should be remembered that trial notices and
            subpoenas are not social invitations, to be declined
            or ignored at the whim of the defendant.         Any
            contrary approach, at least in the context of Rule
            600, would be absurd.       To reward a defendant’s
            failure to appear by invocation of Rule 600 can only
            act to encourage similar gaming by a defendant, and
            others in the future. Because of the extreme nature
            of    the   Rule   600     remedy—discharge—waiver
            appropriately should follow.

Id. at 1022-1023.     Here, Appellee absconded for approximately 10 years,

not merely 11 days as was in Steltz, or approximately 10 months as was in

Brock.   Consistent with our Supreme Court’s prior cases, Appellee’s trial

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J-A07016-16


shall be held “at the reasonable convenience of the [trial] court and the

prosecuting authorities.”6 Steltz, supra at 1391; accord Brock, supra at

1022.

        Based on the foregoing, we conclude the trial court abused its

discretion when it granted Appellee’s motion to dismiss the charges with

prejudice under Rule 600. See Bradford, supra at 700. Accordingly, the

trial court’s January 20, 2015 order is reversed, and the cases are remanded

for further proceedings, consistent with this memorandum.

        Order reversed. Cases remanded. Jurisdiction relinquished.

        Judge Bowes filed a Concurring Memorandum.

        Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2016




6
  In light of our disposition, we need not address the Commonwealth’s
remaining arguments on appeal.


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