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.
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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
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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:
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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
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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
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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
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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
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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
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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
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