J-A25040-17


                                   2018 PA Super 13

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JAMES DAVID WRIGHT                         :   No. 3597 EDA 2016

                    Appeal from the Order October 19, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005845-1990


BEFORE:      OTT, J., STABILE, J., and STEVENS, P.J.E.

OPINION BY OTT, J.:                                    FILED JANUARY 26, 2018

        This is a Commonwealth appeal from the order entered October 19,

2016, in the Delaware County Court of Common Pleas, which granted James

David Wright’s motion to dismiss the charges filed against him in July of 1990,

based on a violation of Pennsylvania Rule of Criminal Procedure 600.          On

appeal, the Commonwealth argues the trial court abused its discretion in

granting Wright’s motion to dismiss. For the reasons below, we are compelled

to reverse the order dismissing the charges, and remand for further

proceedings.

        The pertinent facts and procedural history are summarized by the trial

court as follows:

             On July 10, 1990, a Criminal Complaint was issued against
        [Wright] charging him with Driving Under the Influence, 75
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   Former Justice specially assigned to the Superior Court.
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     Pa.C.S. § 3731 and Reckless Driving, [formerly,] 75 Pa.C.S. §
     3714. On September 18, 1990, a Preliminary Hearing was
     conducted and [Wright] was held for court on all charges. He was
     arraigned on October 18, 1990 at which time he signed a notice
     to appear for a return with counsel hearing before the Honorable
     R. Barclay Surrick on November 13, 1990 as well as a Pretrial
     Conference on November 19, 1990. [Wright] failed to appear on
     November 13, 1990 and a bench warrant was issued by Judge
     Surrick. On November 19, 1990, Judge Surrick rescinded the
     bench warrant after [Wright] appeared before him. [Wright] was
     advised to return to court on November 26, 1990 and signed a
     notice to appear for that date. On November 26, 1990, when
     [Wright] failed to appear, Judge Surrick issued another bench
     warrant for his arrest.

            In the intervening 26 years, [Wright] was arrested and
     incarcerated multiple times in various jurisdictions and resided at
     the same address for at least the first nine (9) of those intervening
     years. Sometime in the fall of 2016, [Wright] received a mailing
     from the Sheriff’s office indicating that a bench warrant existed
     for his arrest and that he should turn himself in. He turned himself
     in on October 3, 2016, the bench warrant was lifted and a pretrial
     conference was scheduled before the undersigned for October 17,
     2016. On October 11, 2016, [Wright] filed an Omnibus Pretrial
     Motion alleging that his rights under Rule 600 of the Pennsylvania
     Rules of Criminal Procedure were violated and that the charges
     should be dismissed, and that the breathalyzer test results should
     be suppressed as a result of failure to comply with the appropriate
     regulations pertaining to breath testing.

            On October 19, 2016, a hearing was held before this Court
     on [Wright’s] motion. Initially, the Commonwealth requested a
     continuance due to the unavailability of the now retired arresting
     police officer. However, as a result of discussions between the
     court and both attorneys, it was stipulated that [Wright] signed a
     notice to appear on November 26, 1990. The Commonwealth was
     satisfied with that Stipulation. The hearing therefore continued
     with [Wright’s] testimony and argument. At no point in time did
     the Commonwealth present any testimony, evidence or argument
     as to the issue of the breath test results as was their burden at
     this suppression hearing.

           At the conclusion of the hearing on [Wright’s] Omnibus
     Pretrial Motion,1 which took place on October 19, 2016, the court
     granted [Wright’s] Motion to Dismiss based on a violation of

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       Pennsylvania Rule of Criminal Procedure 600. On October 21,
       2016, the Commonwealth filed a motion seeking reconsideration
       of that order which was subsequently denied by the court on
       October 25, 2016.
       __________
          1 The court inadvertently entered an Order suppressing the
          blood test results; however, a hearing was never held on
          this issue.

Trial Court Opinion, 4/26/2017, at 1-3. This timely appeal followed.1

       The sole issue raised by the Commonwealth on appeal is that the trial

court abused its discretion in granting Wright’s motion to dismiss the charges

when Wright admitted he had notice of the November 26, 1990, court

proceeding, but willfully failed to appear. See Commonwealth’s Brief at 10.

       Our standard of review of an order granting a Rule 600 motion is abuse

of discretion. Commonwealth v. Baird, 975 A.2d 1113, 1118 (Pa. 2009).

“The proper application of discretion requires adherence to the law, and we

exercise plenary review of legal questions.” Id. (internal citation omitted).

Moreover, when considering an order granting a motion to dismiss based upon

Pennsylvania’s speedy trial rule, we must bear in mind the following:

          Pennsylvania Rule of Criminal Procedure 600 was designed “to
       protect a defendant’s speedy trial rights, as well as society’s right
       to effective prosecution of criminal cases.” Commonwealth v.
       Thompson, 136 A.3d 178, 182 (Pa. Super. 2016) (quotation
       omitted). The Rule mandates, inter alia, that a defendant must


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1On November 11, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).    After requesting and receiving an extension of time, the
Commonwealth filed a concise statement on December 16, 2016.


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         be tried on criminal charges no later than 365 days after the
         criminal complaint is filed. Pa.R.Crim.P. 600(A)(1, 3).

           This straightforward calculation is known as the mechanical
           run date. See, e.g., [Commonwealth v.] Ramos, 936
           A.2d [1097] 1102 [ (Pa.Super.2007) ]. However, those
           periods of delay caused by a defendant are excluded from
           the computation of the length of time of any pretrial
           incarceration.    Pa.R.Crim.P. 600(C).       Following these
           exclusions, if any, we arrive at an adjusted run date by
           extending the mechanical run date to account for these
           exclusions. See, e.g., Ramos, 936 A.2d at 1102. Any
           other delay that occurs, despite the Commonwealth’s due
           diligence, is deemed excusable and results in further
           adjustments to the effective run date.           Pa.R.Crim.P.
           600(G); see also Ramos, 936 A.2d at 1102 (explaining
           that “[e]xcusable delay is a legal construct that takes into
           account delays which occur as a result of circumstances
           beyond the Commonwealth’s control and despite its due
           diligence”) (internal punctuation and citation omitted).

         Thompson, supra, 136 A.3d 178, 182 (emphasis in original).

Commonwealth v. Dixon, 140 A.3d 718, 722 (Pa. Super. 2016), appeal

denied, 159 A.3d 938 (Pa. 2016).

         In the present case, there is no dispute the mechanical run date for

Wright’s trial expired in 1991. Rather, the question presented on appeal is

whether the ensuing 25 years, between the time Wright failed to appear in

November of 1990 and when he surrendered with counsel in October of 2016,

is excludable time attributed solely to Wright or whether the Commonwealth

had the burden to demonstrate it exercised due diligence in bringing him to

trial.    Relying on Baird, supra, the Commonwealth insists it “had no

requirement to seek out [Wright during that 25-year period] where all the

excludable time resulted from [Wright’s] failure to appear.” Commonwealth’s

Brief at 14. We agree.

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      In Baird, supra, defense counsel signed a notice of the arraignment

date, but neither the defendant, nor counsel, appeared on that day, and a

bench warrant was issued. It was not until more than a year later, when the

defendant was stopped for a motor vehicle violation in another county, that

he was arrested on the outstanding warrant. See Baird, supra, 975 A.2d at

1114-1115.     Moreover, during part of that time, the defendant was

incarcerated in another county, and cooperating with a joint county task force.

See id.   The trial court subsequently granted the defendant’s motion to

dismiss the charges based on a violation of Rule 600.

      On appeal, a divided en banc Superior Court reversed, concluding that

the defendant’s failure to appear, when counsel received proper notice,

excused the Commonwealth from having to demonstrate due diligience. See

id. at 1115-1116. The Pennsylvania Supreme Court agreed, explaining:

      [T]he general rule is that, where a period of delay is caused by
      the defendant’s willful failure to appear at a court proceeding of
      which he has notice, exclusion is warranted. Further, if a
      defendant is deemed to have had reasonable notice of court
      proceedings, but fails to appear, the Commonwealth’s due
      diligence in attempting to locate him need not be assessed.

Id. at 1118 (emphasis supplied and citations omitted).

      Nevertheless, the Baird Court noted the “more discrete question” on

appeal was whether notice to counsel of a court date could be “fairly

attributed” as notice to the defendant. Id. It then adopted the general rule,

set forth in federal speedy trial cases, which attributed notice to counsel as

notice to a defendant.      The rule also recognized limited “exceptional


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circumstances,” such as a “breakdown in [a] public defender system[.]” Id.

at 1119.     Because the defendant in Baird did not provide notice of his

whereabouts to the bail authority, clerk of courts, or the district attorney, as

required by Pa.R.Crim.P. 526,2 the Baird Court found the defendant willfully

failed to appear, and “the burden did not shift to the Commonwealth to

establish its own due diligence.” Id. at 1119. See also Commonwealth v.

Vesel, 751 A.2d 676, 680 (Pa. Super. 2000) (under predecessor to Rule 600,

time between August 1991 hearing, at which defendant failed to appear

despite reasonable notice, and his subsequent arrest on unrelated charges in

1999, was excludable time; although defendant claimed Commonwealth knew

his address the whole time, appellate court found “the Commonwealth owes

no duty of due diligence when an appellant fails to appear at a scheduled court

proceeding.”), appeal denied, 760 A.2d 854 (Pa. 2000).

       In the present case, Wright admitted during the Rule 600 hearing that

he had reasonable notice of the November 26, 1990, trial date. See N.T.,

10/1/2016, at 13. He further claimed he had hired an attorney, who told him

he did not need to appear, and that the attorney would appear for him. See
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2 Rule 526 provides, in relevant part, that a defendant who is released on bail,
must, inter alia, “appear at all times required until full and final disposition of
the case[,]” and “ give written notice to the bail authority, the clerk of courts,
the district attorney, and the court bail agency or other designated court bail
officer, of any change of address within 48 hours of the date of the change[.]”
Pa.R.Crim. P. 526(A)(1), (3).




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id. at 14. Wright stated he “was under the impression it was resolved.”3 Id.

       Despite Wright’s blatant acknowledgement that he willfully failed to

appear for the court proceeding, the trial court found the facts of this case

presented the “exceptional circumstances envisioned” by the Baird Court.

Trial Court Opinion, 4/26/2017, at 8. The court emphasized Wright was “never

represented by counsel of record,” and would be “hindered in mounting a

defense” to a 25-year-old DUI charge. Id. Indeed, the trial court focused on

the fact the Commonwealth took no action to locate Wright for 25 years, when

“[a] minimum investigation would have disclosed his whereabouts.” Id. at

12.

       However, we find the trial court’s reliance on the “exceptional

circumstances” language in Baird is misplaced. The quotation comes from

the Court’s discussion of notice to counsel, where the Court stated: “We hold

that absent exceptional circumstances not present here, notice to defense

counsel constitutes reasonable notice for the purpose of determining a

defendant’s unavailability under Rule 600.” Baird, supra, 975 A.2d at 1119

(emphasis supplied).          It appears the Court did not “envision” these

“exceptional circumstances” applying to situations where, as here, a

defendant willfully fails to appear at a proceeding of which he has reasonable

notice. Rather, as noted above, the law clearly states that once a defendant
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3 The trial court questioned Wright’s credibility on this claim, stating, “I don’t
know how much weight I give his testimony that he believed it was
resolved[.]” N.T., 10/19/2016, at 15.


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is provided with notice of a court hearing, and he willfully fails to appear, the

Commonwealth has no burden to demonstrate due diligence.                  See Baird,

supra.     Accordingly, because the record clearly demonstrates Wright had

reasonable notice of the trial date and willfully failed to appear, we conclude

the trial court erred in requiring the Commonwealth to demonstrate its due

diligence in bringing Wright to trial.

      The trial court also emphasized the language in Commonwealth v.

Cohen, 392 A.2d 1327 (Pa. 1978), in which the Supreme Court held a

“defendant on bail who fails to appear at a court proceeding, of which he has

been properly notified, is unavailable from the time of such proceeding until

he is subsequently apprehended or until he voluntarily surrenders[.]” Trial

Court Opinion, 4/26/2017, at 9 (emphasis in original), quoting Cohen, supra,

392 A.2d at 1331. The court reasoned that because Wright had been arrested

in three other cases during the 25-year-period, he was “subsequently

apprehended”     under   Cohen.          The   trial   court   further   noted   “[t]he

Commonwealth was, again, thereby on notice of [Wright’s] whereabouts, but

did not lodge a detainer or proceed with [his] case sub judice.” Trial Court

Opinion, 4/26/2017, at 9.

      Again, we conclude the trial court erred in shifting the burden to the

Commonwealth to demonstrate due diligence. Neither the Cohen decision,

nor any cases we have uncovered, interpret the language “subsequently

apprehended” to mean when a defendant is arrested for a different crime in a

different jurisdiction. Rather, the implication of the statement is the Rule 600

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clock begins to run again when the defendant is “subsequently apprehended”

for the charges at issue. Indeed, the Cohen Court explained:

               Where a defendant undertakes to accept the status of bail
        during the pendency of court proceedings he assumes the
        responsibility of making himself available for any court
        appearances required of him in connection with the action, upon
        receipt of reasonable notice. To focus solely upon the conduct of
        the Commonwealth not only ignores the defendant’s dereliction of
        an obligation, but also places him in the position of possibly
        benefitting from his own wrongdoing. Where the delay results
        from the Defendant’s willful failure to appear at the appointed time
        it is obviously not the type of harm envisioned in the protections
        sought to be afforded by the speedy trial guarantee. To the
        contrary, the delay is directly attributable to the fact that he was
        in a bail status, and not in custody, and that he deliberately
        abused that prerogative.

Id. at 1330. Consequently, we conclude Wright’s subsequent arrests in other

jurisdictions during the time the present charges were pending, did not restart

the Rule 600 clock.       Although we appreciate the trial court’s concern that

Wright’s “ability to mount a defense to a DUI charge that is 25 years old has

been seriously thwarted[,]”4 we must emphasize that the delay was caused

solely by his own deliberate actions.5

        Accordingly, because we find the trial court erred in shifting the burden

of proof to the Commonwealth to demonstrate its due diligence in bringing




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4   Trial Court Opinion, 4/26/2017, at 13.

5 We note, too, the delay may prejudice the Commonwealth in prosecuting
the case, as well.



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Wright to trial, we are compelled to reverse the order granting Wright’s motion

to dismiss, and remand the case for further proceedings.6

       Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/18




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6We note that the trial court candidly admitted it mistakenly granted Wright’s
motion to suppress the breath test. See Trial Court Opinion, 4/26/2017, at
14. Accordingly, the motion to suppress remains unresolved upon remand.

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