J-S41011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES A. ZIMMERMAN,
Appellant No. 1510 MDA 2014
Appeal from the Order entered May 14, 2014,
in the Court of Common Pleas of Lebanon County,
Criminal Division, at No(s): CP-38-CR-0001502-2007
BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JUNE 26, 2015
James A. Zimmerman (“Appellant”) appeals from the order denying his
motion to dismiss pursuant to Pa.R.Crim.P. 600. We affirm.
The trial court summarized the procedural history of this case as
follows:
On June 18, 2007, a Criminal Complaint was filed which
charged [Appellant] with Driving Under the Influence of Alcohol,
High Rate of Alcohol, Third Offense, Driving Under the Influence
of Alcohol, General Impairment, Third Offense, and the summary
offenses of Driving While Operating Privilege is Suspended or
Revoked, DUI-Related, Alcohol in System, and General Lighting
Requirements for an incident which occurred on June 6, 2007.
[Appellant] was notified that his Arraignment was scheduled for
September 12, 2007 and was directed to appear for the Call of
the List scheduled for October 25, 2007 and the term of Criminal
Jury Trials on November 5, 2007. However, he failed to appear
for Call of the List on October 25, 2007 and a Bench Warrant
was issued. At that time, [Appellant’s] address was listed as
250 Valley Lane, Annville, Pennsylvania, 17003.
*Retired Senior Judge assigned to the Superior Court.
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On May 5, 2008, [Appellant] was incarcerated in the
Lebanon County Correctional Facility (“LCCF”) for a sixty-day
period after he pled guilty to the summary offense of Driving
While Operating Privilege is Suspended or Revoked, DUI-Related,
before the Honorable Michael D. Smith, Magisterial District
Judge, 52-3-04 regarding an incident which had occurred on
April 11, 2007. He was released from LCCF on July 3, 2008.
Sometime subsequent to his release, [Appellant] moved from his
previous address to his current residence at 2842 D Horseshoe
Pike, Campbelltown, in Lebanon County.
[Appellant] was arrested on the Bench Warrant issued in
this case on June 29, 2013. He appeared at Bench Warrant
Court on July 1, 2013 and bail was set in the amount of five
hundred dollars ($500.00). He was directed to appear for the
Call of the List scheduled for July 25, 2013. On July 10, 2013,
[Appellant] posted bail and was released from custody.
[Appellant] applied for and was granted court-appointed
counsel on July 15, 2013. After he submitted an application for
the Lebanon County DUI-Court program, his Call of the List date
was continued from July 25, 2013, to August 29, 2013, and then
again to October 24, 2013. On October 24, 2013, [Appellant]
appeared and entered a negotiated plea for a sentence of a nine-
month minimum, with the Judge to set the maximum, and
standard DUI conditions. On December 18, 2013, [Appellant]
appeared for Sentencing but requested and was granted a
continuance to January 22, 2014 to investigate potential Rule
600 issues.
On January 15, 2014, [Appellant] filed a Motion to Dismiss
Pursuant to Rule 600 of the Pennsylvania Rules of Criminal
Procedure on the basis that the Commonwealth failed to bring
him to trial within the 365 days permitted by Pa.R.Crim.P. 600.
The Commonwealth filed its Response on January 30, 2014 and
on February 12, 2014, we conducted a hearing on the Motion.
Trial Court Opinion, 5/14/14, at 1-3 (footnote omitted).
Following the hearing, the trial court denied Appellant’s motion to
dismiss. On June 11, 2014, the trial court sentenced Appellant to nine
months to five years of incarceration. Appellant filed a post-sentence
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motion, which the trial court denied on August 19, 2014. This timely appeal
followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents a single issue for our review:
Did the Lower Court err in denying Appellant’s Motion to Dismiss
Charges pursuant to Rule 600 because the requisite three
hundred sixty-five (365) days had elapsed since the filing of the
criminal complaint in this matter, and the Commonwealth failed
to exercise due diligence in determining Appellant’s whereabouts
over that time period?
Appellant’s Brief at 4.
Initially, we recognize:
In evaluating Rule [600] issues, our standard of review of a trial
court's decision is 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 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.
Additionally, when considering the trial court's ruling, this 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. In determining whether an accused's right
to a speedy trial has been violated, consideration must be given
to society's right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those
contemplating it. However, the administrative mandate of Rule
[600] was not designed to insulate the criminally accused from
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good faith prosecution delayed through no fault of the
Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy
trial rights of an accused, Rule [600] must be construed in a
manner consistent with society's right to punish and deter crime.
In considering [these] matters ..., courts must carefully factor
into the ultimate equation not only the prerogatives of the
individual accused, but the collective right of the community to
vigorous law enforcement as well.
Commonwealth v. Thompson, 93 A.3d 478, 486-487 (Pa. Super. 2014)
(citations omitted).
The essence of Appellant’s argument is that although he “missed a
court date early in his proceedings, he was thereafter in the
Commonwealth’s custody for a period of two months, after which time there
was an unreasonable delay in bringing [Appellant to court] to answer to his
charges.” Appellant’s Brief at 9. Appellant further asserts that the
Commonwealth failed to exercise due diligence in bringing him to trial
because he was incarcerated from May 5, 2008 until his release on July 3,
2008, when “he could have been easily transported to the Court House.” Id.
The Commonwealth counters that a due diligence analysis is not
necessary because Appellant waived his Pa.R.Crim.P. 600 claim when he
failed to appear for Call of the List on October 25, 2007. Commonwealth
Brief at 4-7. The trial court takes this position as well. Trial Court Opinion,
5/14/14, at 6-11. Both the Commonwealth and the trial court cite our
Supreme Court’s decisions in Commonwealth v. Brock, 61 A.3d 1015 (Pa.
2013) and Commonwealth v. Steltz, 560 A.2d 1390 (Pa. 1989).
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Applying those cases to the facts of his case, the trial court reasoned:
[Appellant] attempts to distinguish these cases on the
basis that he merely failed to appear for the Call of the List and
not the actual Trial of his case. A similar issue was addressed in
Brock. In that case, the Superior Court had distinguished the
facts from Steltz on the basis that the defendant in Steltz
absconded after the jury venire had been empaneled, which it
deemed a substantive stage leading to the guilt determining
process, and in Brock the jury had not yet been impaneled. In
addressing this issue, the Supreme Court noted that although
preliminary calendar calls do not constitute commencement of a
trial, “…[t]he impact of the defendant’s failure to appear is
equally adverse regardless of the stage of the proceedings; once
a case has been is (sic) listed for trial, it is irrelevant whether
the defendant absents himself before the proceedings commence
or after a substantive event had occurred, as in Steltz. A
defendant cannot be permitted to frustrate the judicial process in
this manner.” Brock, supra at 1022.
Here, [Appellant] was on the Criminal Call of the List and
had not only been ordered to appear at the Call on October 25,
2007, but had also been directed to appear for Trial during the
Term of Criminal Jury Trials which would commence a few days
later on November 5, 2007. He failed to appear at both
proceedings. Regardless of whether he absented himself from
Call of the List or on the day scheduled for the commencement
of jury trials, his conduct disrupted the orderly process of this
case and frustrated the Commonwealth’s efforts to comply with
Rule 600. Under the reasoning of the Brock decision, we cannot
approve his manipulation and frustration of the judicial process
in this manner.
[Appellant] argues that the fact that his guilty plea was
entered beyond the expiration of the 365 time period requires
that we dismiss the charges against him. In asserting this
argument, he points to Commonwealth v. Bowes, 839 A.2d
422 (Pa. Super. 2003). In that case, the Defendant initially
entered his guilty plea prior to the expiration of the 365 days.
He was subsequently permitted to withdraw his guilty plea and
proceed to trial. Immediately prior to the beginning of his trial,
he moved for dismissal under Rule 600. After the court denied
his motion, he was tried and convicted of the charges. He then
absconded prior to his sentencing. After being apprehended, he
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made a second motion for dismissal based on the expiration of
the 365 day period. The court simply held that the running of
the time period under Rule 600 was tolled by the entry of his
guilty plea prior to the expiration of the 365 days and engaged in
a calculation of time periods under Rule 600.
[Appellant] claims that Bowes somehow supports a
different result here since he did not use his guilty plea to toll
the running of the 365 days. We fail to see how this is so. In
Bowes the defendant had absconded after his trial and, as such,
there was no waiver issue. Here, [Appellant’s] decision not to
appear at either the Call of the List, the November 2007 Trial
term or thereafter, resulted in his waiver of all claims under Rule
600. This is a different scenario which was caused by
[Appellant’s] disruption of the timely and orderly process toward
the conclusion of his case and the timing of his guilty plea does
not affect the outcome of this matter.
Trial Court Opinion, 5/14/14, at 8-11.
The trial court’s reasoning is supported by our review of the record and
reading of case law, including Brock and Steltz. “[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.” Commonwealth v.
Baird, 975 A.2d 1113, 1118 (Pa. 2009) (emphasis supplied).
Here, Appellant concedes that he “missed a court date early in his
proceedings.” See Appellant’s Brief at 9. Given the facts before us and
applicable legal authority, we discern no abuse of discretion by the trial
court, and thus affirm the denial of Appellant’s motion to dismiss pursuant to
Pa.R.Crim.P. 600.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2015
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Com. v. Zimmerman, J.
Combined Opinion