Commonwealth v. Bond

¶1concurring:

¶2I am unable to agree with the majority’s conclusion that for Rule 1100 purposes appellant’s trial “commence[d]” when the hearing was held on her pre-trial motion challenging the constitutionality of the statute she was charged with violating. The majority’s conclusion depends, I sug*356gest, upon an artificial definition of “commence,” and the consequences of accepting the majority’s reasoning persuade me that it is unsound. In the present case, appellant’s trial “commenced,” in the obvious and matter of fact sense of that word, very shortly after we returned the record to the trial court. Suppose, however, that appellant’s trial had not commenced until one year — or two, or even three — after we had returned the record. By the majority’s reasoning, the delay would be immaterial: by asserting her right to challenge the constitutionality of the statute she was charged with violating, appellant would have forfeited her right to a speedy trial.

¶3Nevertheless, I agree with the majority that appellant was not denied her right to a speedy trial, although I reach that conclusion by reasoning different from the majority’s. In my view, we may, and should, decide this case on settled principle without resort to a redefinition of “commence.” On settled principle, the period during which the trial court decided appellant’s pre-trial motion and the period during which we decided her petition for leave to appeal are both excludable, and when these periods are excluded, it will be seen that appellant was timely tried.

¶4Rule 1100 is not required by the provision in the Sixth Amendment of the United States Constitution that an accused has a right to a speedy trial, Commonwealth v. Sadler, 301 Pa.Super. 228, 232, 447 A.2d 625, 627 (1982), but it is intended to implement and give substance to that provision. Jones v. Commonwealth, 495 Pa. 490, 499, 434 A.2d 1197, 1201 (1981); Commonwealth v. Mitchell, 283 Pa.Super. 455, 461, 424 A.2d 897, 900, cert. denied sub nom. Mitchell v. Pennsylvania, 454 U.S. 851, 102 S.Ct. 292, 70 L.Ed.2d 141 (1981). Like the Sixth Amendment, Rule 1100 is not one-sided: it is “to protect an accused’s right to a speedy trial and also to protect society’s right to effective prosecution of criminal cases.” Commonwealth v. Jones, 314 Pa.Super. 515, 523, 461 A.2d 276, 280 (1983). The rule is to prevent oppressive pre-trial incarceration, minimize the anxiety of the accused, and limit the possibility that the *357defense will be impaired. Commonwealth v. Roundtree, 469 Pa. 241, 254, 364 A.2d 1359, 1365 (1976), citing United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). See also Commonwealth v. Bennett, 236 Pa.Super. 509, 516, 345 A.2d 754, 757 (1975) (Rule 1100 helps to ensure to preservation of evidence).

¶5The general requirement of Rule 1100, that the accused must be tried within 180 days, has certain exceptions, stated in the Rule itself and developed in the case law. Thus, in calculating the 180-day period, one does not include a period during which the accused was “unavailable,” Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), or a period representing a continuance granted at the request of the accused, Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982); also, the accused may waive his rights under Rule 1100, Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980). The justification for these exceptions derives from general principle: one may not claim that one should be tried and at the same time prevent one’s trial from commencing or agree that it need not commence. See Commonwealth v. Gallo, 276 Pa.Super. 562, 566, 419 A.2d 601, 603 (1980) (“where a defendant is responsible for the delay, he cannot later benefit from the delay that he himself, caused”).

¶6As the majority points out, appellant’s pre-trial motion was of an extraordinary character. Rather than equate the motion to commencement of trial, however, and thereby risk discarding appellant’s right to a speedy trial altogether, I should analogize the motion to our settled Rule 1100 exceptions. The analogy, of course, cannot be exact. In one sense, appellant’s constitutional challenge of the statute she was charged with violating amounted to a request for a continuance; for implicit in her motion was the request that she not be tried until the court ruled upon her motion.1See Commonwealth v. Wade, 475 Pa. 399, 405, 380 A.2d 782, *358785 (1977) (defendant’s statement to district justice that he intended to obtain a particular attorney as counsel “amounted to a request for a continuance” that remained open-ended until the attorney was retained). In another sense, appellant’s motion amounted to a waiver of her speedy trial rights during the court’s disposition of the motion; for by virtue of her motion, appellant sought not so much to delay trial as to avoid trial altogether as an unconstitutional prosecution. See Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592, 594 (1981) (“[tjhere are no formal requirements for a valid waiver of Rule 1100” so long as it is informed and voluntary). The critical point, as I see it, is that in instituting her constitutional challenge, appellant initiated foreseeable delay for which the Commonwealth was not responsible. The period extending from the date of appellant’s motion to the date of the trial court’s order denying the motion should therefore be excluded from the 180-day period. To permit the period to run while the court deliberated on the motion would be to permit appellant to wield her right to a speedy trial in an unjust and uncontemplated manner. See Commonwealth v. Brown, supra,(Rule 1100 should not be construed so as to encourage gamesmanship on the part of the accused).

¶7The period extending from the date of appellant’s petition for leave to file an interlocutory appeal to the date of our disposition of the petition likewise should be excluded, for by virtue of Pa.R.A.P. Rule 1701(a),2 the petition precluded the trial court from proceeding with the case. See also Commonwealth v. Paprocki, 327 Pa.Super. 270, 224, 475 A.2d 792, 794 (1984). By filing the petition appellant prevented her trial from commencing as effectively as if she had become ill or had fled the jurisdiction. In terms of Rule 1100, therefore, while we deliberated on her petition, appellant was “unavailable.”

¶8*359When the period during which the trial court decided appellant’s pre-trial motion and the period during which we decided her petition are thus both excluded, it will be seen that appellant was timely tried.

¶9The complaint was filed on February 11, 1981. On July 15 (Day 154 of the 180-day period), appellant filed her pre-trial motion challenging the constitutionality of the obscenity statute. On July 22, 1981 (the day of the hearing on the motion), appellant executed a 37-day waiver, effective August 29, 1981. On October 16, the trial court denied appellant’s pre-trial motion and scheduled trial for November 9, 1981. Appellant then executed another waiver, for the period from November 9 through December 7, 1981, so that she could file her petition to this court for leave to file an interlocutory appeal. On February 10, 1982, this court denied appellant’s petition. The trial court then scheduled trial for April 19, 1982, but because of continuances requested by the defense, trial did not commence until June 7, 1982.

¶10As I have just explained, I should exclude the period from July 15 through October 16, 1981 (filing of pretrial motion to denial of motion). The 180-day period therefore stopped running on July 14 (day 153). When the trial court denied appellant’s motion on October 16, 1981, the 180-day period started running again, but appellant’s waiver of the period November 9 through December 7, 1981, again stopped the running of the 180-day period, at Day 177. During this waived period, appellant filed her petition for leave to file an interlocutory appeal, and, also as just explained, by that action she made herself “unavailable.” On February 10, 1982, we dismissed appellant’s petition. That action, however, did not at once restart the 180-day period, for under Pa.R.A.P. 2572,3 we had thirty days to remand the record to the trial court; until we remanded the record, the trial court could not proceed, and appellant therefore remained una*360vailable. The record does not disclose exactly when we remanded the record, but it was within the thirty day period, for on March 8, 1982, the trial court scheduled trial for April 19, 1982.

¶11It is arguable that since by this calculation the 180-day period stopped running on the 177th day, one of two events had to occur for appellant to be timely tried: either the trial court had to commence appellant’s trial within three days after it got the record back from us on remand; or the Commonwealth, within those three days, had to file a petition for an extension of time within which the trial should commence; and since neither of these events did occur, appellant should be discharged. This argument, however, is not persuasive, for it overlooks settled case law.

¶12In Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982), the Supreme Court was faced with a Rule 1100 challenge in which there was a 16-day interregnum between the end of a defense-requested continuance and the date of trial. The Court rejected the defendant’s contention that the 16 days were not excludable from the 180-day period. The Court relied on the principle that “once it is determined that defendant is unavailable [as the defendant was because of the continuance], the critical inquiry is whether actual delay resulted from defendant’s unavailability. ‘If the “unavailability” results in an actual delay in the proceeding, that delay is automatically excluded.’ ” Id. quoting Commonwealth v. Millhouse, 470 Pa. 512, 517, 368 A.2d 1273, 1276 (1977). Since the 16-day delay was the result of a defense-requested continuance, because the continuance required placing the defendant’s trial on “backup status,” it was automatically excluded. See also Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 (1984); Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983).

¶13Here, appellant’s petition for leave to file an interlocutory appeal rendered her unavailable for trial. Given that, we must look to see whether appellant’s unavailability resulted in any delay beyond the date on which this court remanded the record to the trial court. Plainly, it did; some delay in *361scheduling a case for trial is inevitable whenever we remand, for the trial court cannot be expected to drop everything else and proceed at once with the case remanded. Here we do not know from the record exactly how much delay occurred, for as mentioned, the record does not disclose exactly when we remanded the record; but we do know that the delay was slight, for on March 8, 1982, less than thirty days after our decision denying appellant’s petition for leave to file an interlocutory appeal, the trial court scheduled trial for April 19, 1982, and but for appellant’s further request for continuance, trial would have commenced then.4

¶14Our cases establish that unavailability cannot be defined precisely but must be determined according to the facts of each case. Commonwealth v. Ressler, 308 Pa.Super. 438, 454 A.2d 615 (1982). Thus in Commonwealth v. Gorham, 341 Pa.Super. 499, 491 A.2d 1368 (1985), we held that when the defendant failed to appear for trial, the court’s continuance of trial to a date 35 days hence was reasonable and fairly attributable to the defendant’s unavailability. Cf Commonwealth v. Colon, 317 Pa.Super. 412, 427, 464 A.2d 388, 396 (1982) (where only two days left before run date, Commonwealth entitled to extension since “it would have been tantamout to a physical impossibility to have [trial] rescheduled in those two days”). I therefore have no difficulty in finding that the delay from the date of our remand to the trial court to the date set for trial, April 19, 1982, was fairly attributable to appellant’s unavailability. The delay is therefore “automatically excluded,” Commonwealth v. Robinson, supra,from which it follows that appellant was timely tried.

¶15As to the majority’s disposition of the remaining issues, I join.

¶20concurring:

¶21I join in the Concurring Opinion of President Judge Spaeth. I would only add that I have a different and, perhaps, more fundamental reason for disagreeing with the majority’s conclusion that appellant’s trial commenced for Rule 1100 purposes when the hearing was held on her pre-trial motion challenging the constitutionality of 18 Pa. C.S. § 5903.

¶22As noted by the majority, the comment to Rule 1100 states the following:

It is not intended that preliminary calendar calls should constitute commencement of a trial. For the purpose of this rule, a trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial (emphasis added).

¶23I agree with the majority that case law has interpreted this comment as setting forth two requirements which must be met before a hearing on a motion can be considered to mark the commencement of trial under Rule 1100: (1) the accused is adequately warned that the hearing has been reserved until the time of trial and (2) the hearing actually leads directly into the guilt-determining process. See Commonwealth v. Dozier, 258 Pa.Super. 367, 392 A.2d 837 (1978). The majority’s analysis focuses solely on the second requirement and leads it to the conclusion that a hearing on the type of motion involved in the instant case intrinsically leads into the guilt-determining process. Whether or not this conclusion is correct, the fact remains that the majority’s analysis overlooks the first requirement that the hearing on the motion be reserved for time of trial and that the defendant be adequately warned of such reservation.

¶24I believe the record is clear that the hearing of appellant’s pre-trial motion was not reserved for time of trial. Since Dozier’s first requirement was thus not satisfied, I must disagree with the majority’s conclusion that trial com*363menced when the hearing was held on appellant’s pre-trial motion.