Commonwealth v. Haynes

JOHNSON, Judge,

dissenting:

Because I conclude that the days between October 1,1981 and March 24, 1982 are excludable from the calculation of the time for commencement of Appellant’s trial under Pa.R. Crim.P. 6013, I respectfully dissent.

Rule 6013(a)(2) provides that “(t)rial in a Municipal Court case in which a preliminary arraignment is held after June 30, 1975, shall commence no later than one hundred twenty (120) days from the date on which the preliminary arraignment is held.” Appellant Haynes was arrested on July 18, 1981. His preliminary arraignment was held July 19, 1981 and bail was posted on his behalf that same day. Rule 4013 of the. Pennsylvania Rules of Criminal Procedure provides in pertinent part:

Conditions of Bail
When a person is admitted to bail, the conditions of the bail bond shall be that such person will:
(a) appear before the issuing authority or court at all times required until full and final disposition of the case;
(c) give written notice to the issuing authority, the clerk of courts, the district attorney, and court bail agency or other designated court bail officer, of any change of address within forty-eight (48) hours of the date of such change;

It is well-settled that a criminal defendant, who accepts the status of bail during the pendency of court proceedings, assumes the responsibility of full compliance with the conditions of bail. Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982).

While I agree with the majority that cases decided under Pa.R. Crim.P. 1100 may be cited as authority in cases deal*173ing with Rule 6013, the majority overlooks several such cases which support the Commonwealth’s position. In Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), our supreme court acknowledged that the burden of proving due diligence in bringing a defendant to trial within the prescribed time is ordinarily upon the Commonwealth. However, “(w)here the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive is misplaced in a speedy trial analysis.” Id., 481 Pa. at 355, 392 A.2d at 1331.

Where a defendant undertakes to accept the status of bail during the pendency of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action, upon receipt of reasonable notice. To focus solely upon the conduct of the Commonwealth not only ignores the defendant’s dereliction of an obligation, but also places him in the position of possibly benefitting from his own wrongdoing. Where the delay results from the defendant’s willful failure to appear at the appointed time it is obviously not the type of harm envisioned in the protection sought to be afforded by the speedy trial guarantee. To the contrary, the delay is directly attributable to the fact that he was in a bail status, and not in custody, and that he deliberately abused that prerogative.

Id., 481 Pa. at 354, 392 A.2d at 1330 (emphasis in original). The court went on to hold that a defendant on bail, who fails to appear at a court proceeding of which he has been properly notified, is unavailable from the time of that proceeding until such time as he is subsequently apprehended or voluntarily surrenders himself. “In such a case the Commonwealth is entitled to an exclusion of this period under [Pa.R.Crim.P. 1100(d)(1)] without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence.” Id., 481 Pa. at 356, 392 A.2d at 1331 (emphasis added).

Furthermore, Appellant’s obligation to appear at the September 29th hearing, or to notify the Commonwealth in the *174event of. his inability to appear, was not excused by virtue of the fact that he was incarcerated at Fort Dix, New Jersey. In Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982), we held that a defendant on bail has an obligation under Rule 4013(c) to notify the Commonwealth of his change of address upon being incarcerated, and that a criminal defendant on bail, who willfully absents himself from a proceeding of which he had notice, is precluded from relying on the concept of due diligence afforded by a speedy trial guarantee. Id., 299 Pa.Superior Ct. at 231, 445 A.2d at 539.

As recently as this year, in Commonwealth v. Byrd, 325 Pa.Super. 325, 329, 472 A.2d 1141, 1143-44 (1984), we stated:

When a defendant who is on bail and who has notice of a scheduled court proceeding in his case fails to appear in court at the appointed time, he has violated the conditions of his bail, and the Commonwealth is entitled to count any period of delay as excludable time under Rule 1100(d); a showing of due diligence is not required. Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). Upon his incarceration, appellant should have notified the Commonwealth of his change of address. Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982) (emphasis added).

In Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983), we said that when a defendant, who is on bail and who has notice of a scheduled court proceeding in his case, fails to appear in court at the appointed time, he has violated the conditions of bail and the Commonwealth is entitled to count any resulting period of delay as excludable time under Rule 1100(d)(1). “Furthermore the delay is excludable even without a showing by the Commonwealth that it has exercised due diligence to locate a defendant." 317 Pa.Super. at 421, 464 A.2d at 392-93 (emphasis added). See also Commonwealth v. Lyles, 315 Pa.Super. 194, 461 A.2d 1237 (1983); Commonwealth v. Ressler, 308 Pa.Super. 438, 454 A.2d 615 (1982) (“[I]t is not the intention of Rule *1751100 to benefit a defendant who fails to live up to the requirements of bail.”); Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982); Commonwealth v. Henry, 290 Pa.Super. 309, 434 A.2d 767 (1981).

Appellant agrees that the time period between September 29, 1981, the date on which Appellant failed to appear, and October 16, 1981, when the Commonwealth learned of his whereabouts, is excludable time. Appellant, contends, however, that once the Commonwealth learned of his incarceration in another jurisdiction the Rule 6013 “clock” once again commenced running, and that the Commonwealth must now demonstrate by a preponderance of the evidence that it acted with due diligence thereafter to obtain Appellant Haynes and bring him to trial.

Cases cited by the Appellant stand for the proposition that if time during which a defendant is incarcerated in another jurisdiction is to be excludable time, the Commonwealth must prove by a preponderance of the evidence that, despite due diligence, the presence of the defendant could not be secured. See Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Pichini, 308 Pa.Super. 425, 454 A.2d 609 (1982); Commonwealth v. Bass, 260 Pa.Super. 62, 393 A.2d 1012 (1978); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977). In none of these cases, however, at the Rule 1100 hearing, was the judge required to decide the issue of the Commonwealth’s due diligence without some knowledge of defendant’s continuing availability at a fixed location.

Some mention of what transpired during the hearing on the Rule 6013 motion in the Municipal Court of Philadelphia is appropriate. The record is quite vague respecting Appellant’s term in federal custody. Mr. Remmler, counsel for the defendant at the hearing, submitted that he did not know the exact date upon which Appellant was taken into federal custody (N.T., 8/3/82 at 9); and, when asked, defense counsel twice declined to advise the court as to the date of Appellant’s release from Fort Dix prison, stating that it was counsel’s belief that the Commonwealth had the *176burden of proof in that regard. (N.T., 8/3/82 at 9-10). Furthermore, as Appellant Haynes did not, himself, testify on the Rule 6013 motion, at the time the motion was denied there had been no testimony before the court whatsoever respecting the term of Appellant’s incarceration in Fort Dix military prison.

We have, therefore, been provided with minimal facts respecting the length of Appellant’s term of imprisonment at Fort Dix. With the exception of only one day, October 16, 1981, we cannot at all be certain of Appellant’s whereabouts and this, it seems to me, is fatal to the majority’s analysis. If Appellant wishes to assert that the Commonwealth, having learned of Appellant’s incarceration in another jurisdiction, then has a burden to show, by a preponderance of the evidence, that it exercised due diligence to bring Appellant to trial, then the burden should first be upon Appellant to come forward with sufficient facts to enable the court to properly consider the conduct of the Commonwealth under the circumstances. As indicated above, Appellant at the Rule 6013 hearing declined to do so.

Furthermore, Appellant had availed himself of Pa.R. Crim.P. 4013, which provided him with the means by which he was able to enjoy his freedom while awaiting the onset of trial proceedings. Having accepted the status of bail, Appellant assumed the responsibility of making himself available for any court appearances which might be required of him in connection with the action, upon receipt of reasonable notice. Commonwealth v. Cohen, supra. To focus solely upon the conduct required of the Commonwealth in a case where a defendant has willingly assumed a corresponding obligation not only ignores the defendant’s dereliction of that obligation, but also places him in a position to benefit from his own wrongdoing.

Accordingly, I would affirm the holding of the court below1 that the entire period from September 29, 1981 (the *177date upon which, in violation of his bail agreement, Appellant Haynes failed to appear in court) through March 24, 1982 (the date upon which Appellant Haynes was subsequently apprehended) is excludable from the calculation of time for commencement of Appellant’s trial under Rule 6013.

. The trial court also found the 54 days between March 24, 1982 and May 17, 1982, the earliest possible time to reschedule the trial, to be excludable. As Appellant’s trial was held well within the time allow*177able under Rule 6013 without consideration of this additional time period, I express no opinion in this regard.