J-S55014-14

                                  2014 PA Super 222



COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                     v.

BRIAN FEENEY,

                            Appellee                        No. 2764 EDA 2013


                 Appeal from the Order Entered August 28, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0007273-2011


BEFORE: BOWES, SHOGAN, and OTT, JJ.

OPINION BY BOWES, J.:                                     FILED OCTOBER 07, 2014

       The Commonwealth appeals from the August 28, 2013 order affirming

the dismissal of this action against Appellee Brian Feeney based upon the



disregarded directly applicable Supreme Court precedent, we reverse.

       On February 19, 2011,1 Feeney was charged with driving under the

influence of alcohol. At 7:00 p.m. on the day in question, Philadelphia Police

Officer Dennis Johnson was in a marked cruiser stopped at the traffic light

that   controls    the    intersection    of   Harbison    and   Robbins   Streets   in

Philadelphia. Officer Johnson observed Feeney travel through a steady red


____________________________________________


1
    The Commonwealth mistakenly lists the arrest date as January 19th.
J-S55014-14


a strong odor of alcohol coming from his breath, bloodshot eyes, slurred



and was unable to maintain his balance. Officer Johnson had to catch him to



arraignment was conducted the next day.

     Trial   was   originally   scheduled   for   May   11,   2011,   when   the

Commonwealth was prepared to proceed.              Feeney asked for discovery

consisting of a videotape of the incident, which did not exist. In June 2011,

Feeney filed a motion to suppress, a hearing on that motion occurred on

August 15, 2011, and it was denied.




was rescheduled for December 16, 2011.            The Commonwealth could not

proceed on that date because one of its police witnesses was unable to

arrive in court on schedule due to a family emergency. The Commonwealth

was ready to try the matter at the next two scheduled trial dates,

February 15, 2012, and April 4, 2012, but Feeney asked that the matter be

continued.

     Trial was re-scheduled for May 25, 2012, when the Commonwealth

witnesses were present, and it was prepared to prosecute Feeney. Feeney

failed to appear because he did not want to miss work. Id. at 7-8. A bench

warrant was issued for his arrest but was subsequently lifted. There were


                                      -2-
J-S55014-14




and the Commonwealth was not able to proceed on the other three dates

due to the absence of one of its witnesses.

      On May 1, 2013, Appellant filed a motion to dismiss under Rule 1013,

which was granted by the Honorable Charles Hayden sitting in the Municipal

Court of Philadelphia.   At that time, the Commonwealth maintained that

Feeney waived his right to litigate the Rule 1013 motion when he failed to

appear for trial on two occasions. Id. at 13.

      Feeney countered that, while he did not appear for trial at two of the

listings, his failure to do so was not willfully deliberate.   He offered no

explanation for his lack of appearance on October 7, 2011. As to the May

25, 2012 listing, Feeney said that his boss called him and told him that he

had to come to work. After Judge Hayden dismissed the case based upon

the

that decision to the court of common pleas, which affirmed.       This appeal



Pleas Court, sitting as an appellate court, err in affirming the Municipal




      Initially, we note that our standard of review in this context is defined

by case law to be the same as the standard applied by Pa.R.Crim.P. 600:


                                     -3-
J-S55014-14


           Our standard of review for evaluating claims brought
     pursuant to Rule of Criminal Procedure 1013 is the same as that
     applied to claims made under Rule of Criminal Procedure 600.
     The purpose of the rules is similar, and the case law applies
     equally to both
     the proper scope of review is limited to the evidence on the
     record from the evidentiary hearing and the findings of the trial
     court. . . . In assessing a Rule 1013 issue, we are confined to
     determining whethe


Commonwealth v. Lynch, 57 A.3d 120, 123 (Pa.Super. 2012) (emphasis

added) (quoting Commonwealth v. Preston, 904 A.2d 1, 9 (Pa.Super.

2006) (en banc)).

     Two Supreme Court decisi

position herein.    We first examine Commonwealth v. Steltz, 560 A.2d

1390 (Pa. 1989), which was the origin of this waiver principle. Therein, the

court examined former Pa.R.Crim.P. 1100, now embodied in Rule 600. The

defendant was charged with various sexual crimes, and his trial was

scheduled within his Rule 1100 run date. The defendant originally appeared,

but was not present when jury selection was set to begin, so the trial could

not proceed.   The defendant was arrested shortly thereafter and was not

tried until three months later.   While the trial court dismissed under Rule

1100, the Court reversed that decision.



from a day set for trial within Rule 1100 is a waiver of that rule. Therefore,

his trial thereafter is at the reasonable convenience of the court and the

                          Id. at 1391. It observed that the rule of criminal

                                    -4-
J-S55014-14


                                                                cedural rule



that it is designed to benefit the accused.   Id.    It continued that, when



scheduled trial, they mu

the others their absence delayed. We cannot, with limited facilities, let one

                                                               Id.

     That holding was recently applied in Commonwealth v. Brock, 61

A.3d 1015 (Pa. 2013). Therein, the court ruled that a defendant waives his

                                            by failing to appear for a trial

         Id

times, but was eventually listed for trial about twenty-one months after the

charges had been filed. He did not appear at that time, and a bench warrant

was issued for his arrest.    Police went to his home once to serve the

warrant, but made no efforts thereafter to locate Brock. He was arrested on

unrelated charges about eleven months later.        Sixteen months after his

arrest, Brock maintained that the charges should be dismissed under Rule

600. The trial court dismissed the charges, reasoning that there was no due

diligence in prosecuting Brock from the time prosecutors were notified that

he was arrested until he sought dismissal under Rule 600, and we affirmed.

     Our Supreme Court reversed. It ruled that Brock waived his right to

pursue a motion to dismiss under Rule 600 when he was not present at the


                                    -5-
J-S55014-14


scheduled trial, despite the fact that the Commonwealth made no effort to

try Brock for 244 days after it was notified that he was in police custody.

The Supreme Court ruled that Steltz applied. It noted that the speedy trial

rule was fashioned to prevent prosecutorial delay, and that when a



                                                              Id. at 1022.     It

concluded that any voluntary failure on the part of the defendant to appear

for a listed trial results in his inability to seek dismissal under Rule 600. The

court noted that its ruling did not implicate the constitutional right to a

speedy trial. Id. at n.7.

      It is readily apparent that Steltz and Brock

trial was scheduled for October 7, 2011, which, in this case, was well within

the parameters of the mandates of Rule 1013 (A)(1). That Rule states that,

                                                             han 180 days from



arraignment was on February 20, 2011. On May 11, 2011, a continuance

was granted at defense request, in order to obtain nonexistent discovery.

Delays caused by defendant extend the run date.            Commonwealth v.

Claffey, 80 A.3d 780 (Pa.Super. 2013). At the next scheduled trial, June



until August 15, 2011. As we noted in Commonwealth v. Cook, 865 A.2d

869 (Pa.Super. 2004), time spent litigating a motion to suppress extends the


                                      -6-
J-S55014-14


run date so long as the Commonwealth was diligent in opposing the motion.

The run date was therefore extended by ninety-

motions and continuances.      Fee

2011, within the extended run date. He did not appear at that time, offered

absolutely no excuse for that failure, and the Commonwealth was prepared

to proceed to try him that day. Hence, Feeney waived his right to litigate a

Rule 1013 motion after that time. Trial was solely within the convenience of



October 7, 2011 trial listing, where the Commonwealth was fully prepared to

proceed.

      In reject

to litigate a Pa.R.Crim.P. 1013 motion, the court reasoned as follows

      [T]he defendant did not waive his claim by twice failing to
      appear on days scheduled for trial. On October 7, 2011, Defense
      Counsel Joseph Kelly signed on behalf of his client in courtroom
      1003 and the Commonwealth did not raise any objection. On
      May 25, 2012, the lower court determined that Mr. Feeney did
      arrive on time for the hearing just before that hearing
      commenced, however, Mr. Feeney departed the court due to
      exigent circumstances. Mr. Feeney was assured by his counsel
      that this would not be a problem or issue. The lower court, as
      finder of fact, did not determine that Mr. Feeney had
      deliberately failed to appear for trial on either occasion.

Trial Court Opinion, 1/10/14, at 5 (emphasis in original).



to trial on October 7, 2011. Feeney proffered absolutely no excuse for this

default, so it must be characterized as deliberate.     Rather than properly


                                     -7-
J-S55014-14


examine whether the failure was volitional, the trial court engaged in a

waiver-type analysis against the Commonwealth.        It noted that defense

counsel signed for the next trial date and that the Commonwealth did not

object.    The Commonwealth did not, by this action, waive its present

contention. It was not, at that point, faced with a motion to dismiss based



signature indicating that Feeney would appear for the next scheduled trial

date.

        The Commonwealth properly raised its position that Feeney waived his



waived his right to litigate a motion to dismiss due to his voluntary absence

on October 7, 2011. The irrefutable fact is that Feeney was not present at

the October 7, 2011 trial listing. There was not a single indication that his




him renders           reasoning inapplicable.

        Furthermore, Feeney waived his Rule 1013 rights a second time when

he decided to go to work rather than stay for trial on May 25, 2012. This

action was volitional, regardless of whether he felt compelled to do so due to



Feeney should be able to benefit from a trial scheduling mandate designed

to protect him when he could have appeared both in October 2011 and


                                     -8-
J-S55014-14


stayed at the trial scheduled in May 2012.        The Commonwealth was



to these lapses.

      Order reversed. Case remanded for trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




                                    -9-
