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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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, MUNDY AND JENKINS, JJ.

CONCURRING MEMORANDUM BY BOWES, J.:                  FILED JULY 22, 2016

     I cannot join the reasoning employed by my distinguished colleagues

as I believe their holding misapplies our precedents. The majority holds that

a defendant who fails to show for trial set outside the time parameters of

Rule 600 waives his rule-based right to discharge.    However, I would find

that Appellee forfeited his right to raise a Rule 600 claim by failing to

demand discharge in a timely fashion, and therefore I concur in the result.

     I disagree with the majority’s application of Commonwealth v.

Steltz, 560 A.2d 1390 (Pa. 1989), and Commonwealth v. Brock, 61 A.3d

1015 (Pa. 2013). In both Steltz and Brock, the defendants failed to appear
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for a trial date that complied with Rule 600.1 The opinion brushes this

important distinction aside:

      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 1010.

Majority opinion at 10 (alterations and emphasis in original).        Herein,

Appellee did not absent himself from “a day set for trial within Rule 600.”

Rather, the trial court found the Commonwealth set the trial date outside

Rule 600:

             There is absolutely no evidence of record, other than the
      self-interested testimony from ADA Carroll, who later admitted
      he did not remember what occurred during that time period, that
      the Commonwealth scheduled the Defendant for trial at either
      case number prior to the October 18, 2004 trial term, which was
      undoubtedly after the adjusted run dates of both August 18,
      2004 and September 1, 2004.

Trial Court Opinion, 4/2/15, at 20. Thus, according to these factual findings,

Appellee’s absence was not “for a day set for trial within Rule [600].”    In

essence, the trial court determined that dismissal of charges was a fait

accompli: had Appellee appeared in court on October 18, 2004, as

scheduled, a motion for dismissal would have succeeded.        Waiver of the

rule-based right to a speedy trial is justified when a defendant fails to


1
  Steltz discusses Rule 1100, the predecessor to the current Rule 600. For
ease of discussion, I will simply refer to both Rules as Rule 600.



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appear for a date within Rule 600 for a simple reason: he could have had a

timely trial by appearing. By failing to appear, “they go to the end of the

line and must wait their turn after the convenience of the others their

absence delayed.”     Steltz, supra at 1391.      Here, the trial court has

determined Appellee was denied the right to a timely trial, even if he had

appeared in October of 2004.    All that remained for him to do was request

dismissal.

      The majority is correct that we are not licensed “to narrow the plain

import of [our Supreme] Court’s unambiguous legal holdings.”         Majority

Opinion at 10 (citing Brock, supra at 1022 (Castille, C.J., concurring)).

However, the majority’s rule represents a major expansion of the Court’s

rulings, and a hypothetical demonstrates why.   Imagine the Commonwealth

schedules a case well beyond the mechanical run date. The defendant fails

to appear and a bench warrant is issued. The next day, the litigant appears

and the case is scheduled for the next available court date. According to the

majority, this defendant has forever lost the ability to raise a Rule 600

claim, and the Commonwealth would not need to establish due diligence.

      Former Chief Justice Castille has noted that “the Superior Court should

proceed cautiously in areas that implicate rulemaking.” Commonwealth v.

Pitts, 981 A.2d 875, 881 (Pa. 2009) (Castille, C.J., concurring).   With that

admonishment in mind, I cannot join my colleagues.




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      I nevertheless concur in the result for the following reasons. The trial

court focused on the lack of evidence corroborating the ADA’s testimony that

Appellee would have been scheduled for trial before October 18, 2004. Upon

careful review of the record and the testimony, I believe the Commonwealth

was unfairly hampered in its ability to convince the trial court that Appellee

was, in fact, scheduled for trial well before that date.

      Since the majority accepts the Commonwealth’s waiver argument, the

underlying factual findings have not been discussed.       Those findings are

crucial to my disposition and I begin there.         This appeal concerns two

separate criminal cases. On August 4, 2003, charges were filed at CP-63-

CR-0002018-2003 (hereinafter “2003-2018”). On August 20, 2003, charges

were filed at CP-63-CR-0001701-2003 (hereinafter “2003-1701”).         Appellee

remained incarcerated from August 27, 2003 to March 5, 2004, when he was

granted nominal bond.      The significant dispute in this case concerns what

happened between March 5, 2004 and the trial date of October 18, 2004.

      The Commonwealth presented the testimony of Assistant District

Attorney (“ADA”) Josh Carroll, who handled Appellee’s cases.       He testified

that, after Appellee was released from jail, ADA Carroll would have

immediately scheduled the cases for the next available trial term, which

occurred in April of 2004.       N.T., 12/29/14, at 20.      While Mr. Carroll

referenced a note in his file to this effect, he had no specific recollection of

scheduling Appellee for trial. Id. at 23. His testimony was not corroborated

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by a written order or docket entry that could confirm that any type of

proceeding had been scheduled for April.        Id. at 20-21.      Mr. Carroll

explained that the general practice in Washington County in 2004 was to

place cases on a generic list. Id. at 12. If a plea deal could not be reached,

“you just tried to sort out what cases had priority or what cases you were

able to take to trial.” Id. Mr. Carroll was asked who maintained this list of

cases. He replied:

          I don’t know if I would use the word maintain.                I
     understand what you mean. It was more or less you let the
     judge know, here is [sic] the ten cases I want to call to trial this
     month. The judge’s staff would write it down, and you would,
     obviously, know what cases you called.

Id. at 14. The prosecutor stated multiple times that the process was mostly

informal and that formal orders were rarely issued, even when a defendant

requested a continuance.    Id. at 14-15.   ADA Carroll stated that since the

cases did not proceed in April, he would have listed the cases on the

informal list for September of 2004. Id. at 23. The trial court interjected to

ask why a warrant was not issued in April. Mr. Carroll stated, “I don’t know

that he didn’t show up in April.” Id. Order, 3/8/04.2




2
    The order incorrectly listed the date of incarceration as August 20th
instead of August 27th. The judge presumably relied on the date charges
were filed.




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      The next relevant date is September 14, 2004. On that date, a bench

warrant was issued due to Appellee’s failure to appear, but vacated on

September 17, 2004. The order reads:

      AND NOW, this 17 day of September, 2004, upon consideration
      of the confusion regarding notice to counsel for the above-
      referenced defendant, the bench warrant filed the 14[th] day of
      September, 2004, is hereby vacated.

      The defendant and counsel are expected to be prepared for a call
      of the list for the October 2004 trial term.

Order, 9/17/04.       However, Appellee did not appear for the October

proceedings nor file a Rule 600 motion.          On October 18, 2004, bench

warrants were issued at both cases.

      No further action occurred at these cases until September 8, 2014,

when Appellee was arrested on the outstanding warrants. On September 9,

2014, the warrants at both cases were vacated and Appellee’s cases were

scheduled for a court date on September 29, 2014. Order, 9/11/14. This

court date was rescheduled for October 20, 2014, following a motion for

discovery. On October 3, 2014, a motion to dismiss was filed, and a hearing

was held on the motion.       Following the submission of post-hearing briefs,

the trial court granted the motion, finding October 18, 2004 was the first

date Appellee was scheduled for trial.

      For its part, the Commonwealth continues to maintain the trial court’s

factual findings are incorrect, but offers no basis to disturb them beyond an

invitation   to   accept   speculation   and   pattern   of   practice   for   fact:

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      On March 5, 2004, [Appellee] was released on nominal bond and
      the Commonwealth scheduled it for trial for the April 2004 trial
      term. The cases did not go to trial during the April 2004 trial
      term.

      There was no trial term during August of 2004. The trial term
      for September of 2004 began September 13, 2004.            The
      defendant’s cases at 2018 of 2003 and 1701 of 2003 were
      scheduled for trial that date but he failed to show and on
      September 14, 2004, a bench warrant was filed at both cases for
      [Appellee]’s arrest. On September 17, 2004, the bench warrant
      was lifted because counsel indicated he may not have provided
      the defendant notice.

Commonwealth’s brief at 9.       The Commonwealth argues that “Mr. Carroll

testified the Commonwealth was prepared to go to trial in April 2004 as

evidence[d] by the notes on his trial file.     There is no evidence to the

contrary that it was not called in April 2004.” Commonwealth’s brief at 21

(emphasis added).      However, where, as here, the trial date exceeds the

adjusted run date, the Commonwealth has the burden of demonstrating by a

preponderance     of   the   evidence    that   it   exercised   due    diligence.

Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012).

      Given the Commonwealth’s concession it cannot prove Appellee was

ever scheduled for trial, it is clear the trial court’s factual findings cannot be

disturbed. Our standard and scope of review in evaluating Rule 600 issues is

well-settled. We determine

      whether the trial court abused its discretion. Judicial discretion
      requires action in conformity with law, upon facts and
      circumstances judicially before the court, after hearing and due
      consideration. An abuse of discretion is not merely an error of
      judgment, but if in reaching a conclusion the law is overridden or

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      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.

Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013) (citing

Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa.Super. 2007) (en

banc) (alterations in original due to rule renumbering)).         Dismissal is

required under Rule 600 “when the Commonwealth fails to commence trial

within 365 days of the filing of the written complaint, taking into account all

excludable time and excusable delay.”       Commonwealth v. Goldman, 70

A.3d 874, 879-80 (Pa.Super. 2013).          To determine whether dismissal is

required under Rule 600, the starting point is the “mechanical run date,”

which is calculated by adding 365 days to the date criminal charges were

filed. Pa.R.Crim.P. 600(A)(2)(a).

      Herein, Appellant was charged on August 4, 2003 and August 20,

2003; the mechanical run dates were, respectively, August 3, 2004, and

August 19, 2004. The trial court found the October 18, 2004 date exceeded

the run date when factoring in all excludable time and excusable delay.

Since we must view the facts in the light most favorable to the prevailing

party, I cannot find the trial court abused its discretion.




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      Yet, I would not hold that our inability to disturb the factual findings

ends our inquiry in this case.    “[T]his Court is not permitted to ignore the

dual purpose behind Rule [600].      Rule [600] serves two equally important

functions: (1) the protection of the accused's speedy trial rights, and (2) the

protection of society.”      Armstrong, supra at 234-35.      In striking this

balance, I think it is important to note the purpose of Rule 600 and its

progeny.    In Barker v. Wingo, 407 U.S. 514, 527 (1972), the Supreme

Court of the United States set forth the factors to be balanced in determining

whether a defendant’s constitutional right to a speedy trial had been

violated.   Our Supreme Court accepted Barker’s invitation to the States to

“prescribe a reasonable period consistent with constitutional standards[.]”

Thus, Rule 600 “was designed to encourage both the prosecution and the

judiciary to act promptly in criminal cases and to establish an objective time

limit for their guidance.”    Commonwealth v. Genovese, 425 A.2d 367,

369-70 (Pa. 1981). It is a prophylactic rule; we do not litigate whether the

constitutional right to a speedy trial was violated if the 365-day clock has

expired.

      At the same time, “‘No procedural principle is more familiar to this

Court than that a constitutional right,’ or a right of any other sort, ‘may be

forfeited in criminal as well as civil cases by the failure to make timely

assertion of the right[.]’”    United States v. Olano, 507 U.S. 725, 731

(1993) (quoting Yakus v. United States, 321 U.S. 414, 444 (1944)).           If

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the underlying constitutional right may be forfeited, a fortiori the procedural

mechanism designed to vindicate the right can be forfeited.     C.f. Bradford,

supra (“The right to a speedy trial . . . 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.      If a defendant is going to

complain about the prosecution’s diligence, he must exercise diligence

himself and not simply sit idly by[.]” 46 A.3d at 706 (Eakin, J., concurring)).

      In the case sub judice, Appellee testified that he believed “the case got

thrown away” because he did not receive any paperwork. N.T., 12/29/14, at

58.   He also conceded he did not contact his attorney to ascertain what

happened, stating “it was [the attorney’s] job and the [c]ourt’s job” to keep

him updated.    Id. at 58-59.   I do not believe our precedents require us to

reward a defendant’s deliberate indifference to outstanding criminal charges.

In Commonwealth v. Baird, 975 A.2d 1113, 1119 (Pa. 2009), our

Supreme Court adopted a rule that notice to defense counsel constitutes

reasonable notice for purposes of determining a defendant’s unavailability

under Rule 600.3     The Court noted in dicta that the defendant therein

“adopted a strategy of willful ignorance.”     Appellee did the same in this

instance.   His lack of interest in a speedy trial should be a factor in our



3
      Baird does not apply herein because it is unknown if counsel had
notice of the alleged April proceeding.



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analysis. Barker noted that a speedy trial protects a defendant’s interests

by, inter alia, “minimiz[ing] anxiety and concern of the accused.”      Barker,

supra at 532.    Herein, the defendant admitted he had no such concerns or

anxieties. (“Q. So, you had no concern as to the status of the case? A. No.”)

N.T., 12/29/14, at 59.    When weighing the interests of Appellee’s speedy

trial rights versus the protection of society, it is difficult to place any great

weight on the former when Appellee disavows any anxiety or care.

      I recognize such arguments tread closely to the rejected notion that a

defendant bears some duty to ensure he is timely prosecuted.                See

Commonwealth v. Brown, 875 A.2d 1128, 1141 (Pa.Super. 2005).

(“Appellee had no obligation to bring himself to trial[.]”).      But there is a

significant difference between a demand for trial and a demand for

discharge. The defendant has no duty in the former situation because he

“has no duty to bring himself to trial; the State has that duty[.]” Barker v.

Wingo, 407 U.S. 514, 527 (1972). To hold otherwise would essentially alert

the prosecution to a looming problem.         However, that principle should not

extend to the demand for discharge.      In the latter situation, the error is no

longer potential, and he should bear some duty to assert the allegation of

error in a timely manner.    The legal system recognizes this principle as the

driving force behind statutes of limitations, which exist to “promote justice

by preventing surprises through . . . revival of claims that have been allowed

to slumber until evidence has been lost, memories have faded, and

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witnesses have disappeared.” CTS Corp. v. Waldburger, 134 S.Ct. 2175,

2183 (2014) (citation omitted).

      Furthermore, there are strong indications the Commonwealth was

prejudiced by the delay.     Appellee’s revival of a claim that, by the trial

court’s factual findings, germinated over a decade ago, surely contributed to

the trial court’s conviction that “due to the serious nature of [Appellee]’s

charges, the Commonwealth would have requested an issuance of a bench

warrant had he failed to appear for a properly scheduled hearing.” Trial

Court Opinion, 4/2/15, at 19. This statement ignores a simple explanation

for the lack of a bench warrant: Appellee appeared at the prior proceedings,

but the matters were either rescheduled or postponed. If, for example, the

trial court could not have accommodated a trial, the delay would be

excusable time.       See Commonwealth v. Preston, 904 A.2d 1, 14

(Pa.Super. 2006) (en banc).     Or, perhaps Appellee’s trial counsel wished to

postpone the case for further plea negotiations, resulting in excludable time.

Indeed, the evidence strongly suggests something happened before the

October trial date.     The September 17th order indicating some type of

proceeding raises the question of why, and how, the matter was scheduled

in the first place. Surely, the trial court did not schedule the case on its own

initiative. This strongly suggests the Commonwealth did, in fact, attempt to

prosecute the case and followed the informal procedure described the ADA.

In this regard, I note the trial court did not necessarily find the

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J-A07016-16



Commonwealth failed to prosecute Appellee; rather, the judge found the

Commonwealth did not meet its burden of proof. “After [Appellee]’s nominal

bail hearing on March 5, 2004, the Commonwealth could have placed

[Appellee] on the April, May, June, or July, 2004 trial term lists. According

to the official record, the Commonwealth failed to do so.”         Trial Court

Opinion, 4/2/15, at 21 (emphasis added).

     In sum, I do not doubt the Commonwealth was prejudiced by the loss

of evidence and faded memories due to Appellee’s lack of diligence in

pursuing discharge.    Had Appellee appeared in October as scheduled and

litigated a motion to dismiss, the result may well have been different.     The

original trial judge would probably have been present and may have had his

own memory, records, log book, or other source of information to rely upon

in determining whether     Appellee   or    his   counsel had notice   of   the

proceedings.4

     Therefore, I would hold Appellee failed to timely pursue his right to

discharge.   I recognize Rule 600 does not itself impose any time limitation

on when the motion must be raised and we are not authorized to promulgate

rules of procedure.   Pa. Const. art. V, § 10(c).    However, as former Chief

Justice Castille stated, “I have no fixed objection to the [Superior Court]


4
      If Appellee’s attorney received personal notice of the trial date, he
could not ethically represent that the matter had not been set for trial.




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undertaking to adopt efficiencies and improvements in order to better serve

justice.”   Pitts, 981 A.2d at 881 (Castille, C.J, concurring).   I believe my

suggested disposition is faithful to that directive.

      Accordingly, I would hold Appellee forfeited his right to seek rule-

based discharge by failing to pursue the right in a timely fashion.   Hence, I

concur in the result.




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