Commonwealth v. Baird

CONCURRING OPINION

BY JOYCE, J.

¶ 1 I agree with the Majority’s decision to reverse the order of the Court of Common Pleas dismissing Appellee’s case on Pa.R.Crim.P. 600 grounds. I write separately to respond to the dissenting opinion, and note several other factors contributing to this jurist’s determination.

¶ 2 As noted by both the Majority and the Dissent, Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978) is instrumental in resolving this appeal. There, our Supreme Court stated,

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 *262appointed time it is obviously not the type of harm envisioned in the protections 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.

Cohen, 392 A.2d at 1330. A defendant will be deemed unavailable if he is on bañ and fails to appear at a scheduled court proceeding “of which he has been properly notified.” Id. at 1331. Hence the question becomes “what is reasonable and/or proper notice?”

¶ 3 The dissenting opinion answers this question by referring to the local rule of Westmoreland County.3 Specifically, WC 542 states that it is the district justice’s duty to set the arraignment date, notify the defendant and defense counsel of that date, and require the defendant to sign an arraignment form verifying his awareness of the arraignment and the obligation to appear. Of course, this is an iron clad method of resolving issues as the one sub judice, as actual notice is rarely debatable. Clearly, this local rule was not complied with, and actual notice was not provided to Appellee himself. However, the issue does not end there.

¶ 4 Our courts have regularly upheld the concept of constructive notice in a variety of areas of the law. See e.g. Commonwealth v. Edwards, 588 Pa. 151, 903 A.2d 1139 (2006) (holding that appellant had constructive notice of the Commonwealth’s notice of aggravating circumstances even though the language contained in the notice did not conform to the statutory language and did not cite to the correct subsection of the statute relating to multiple deaths). Indeed, “it is unimportant in itself whether the notice takes the form of personal service, general publication, oral notification, regular or certified mail. Any notice, regardless of form, may satisfy due process of law” so long as the notice is “of such nature as reasonably to convey required information, and it must afford reasonable time for those interested to make their appearance.” Commonwealth v. Cornish, 311 Pa.Super. 72, 457 A.2d 118, 121 (1983) citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). See e.g. Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111, 1116 (1998) (oral notice to defense counsel of continuation of trial is sufficient notice to defendant).

¶ 5 Applying the above standard, the notice provided to Appellee’s attorney is of such a nature that it is reasonable that the information would have been conveyed to Appellee. It should be noted that the actions of counsel are imputed to a client relative to this issue. Commonwealth v. Snyder, 373 Pa.Super. 582, 542 A.2d 95, 98-99 (1988). Moreover, it is certainly reasonable that counsel, who waived Ap-pellee’s preliminary hearing without him being present, and who represented Ap-pellee on other cases during the same timeframe, would communicate the arraignment date to his client. Had this information been conveyed promptly, Appel-lee would have had six weeks from his preliminary hearing date until his arraignment to make his appearance. See WC 542(b)(1) (“The district justice shall set the next scheduled court arraignment date which falls no sooner than the sixth Monday following the preliminary hearing or waiver of the same as the date for court arraignment.”). These facts establish that it is reasonable that counsel would commu*263nicate the arraignment date to Appellee with plenty of time for him to make his appearance thereby meeting the test enunciated in Cornish. Thus, while Appellant did not receive actual notice of his arraignment, he did receive constructive notice. Under this reasoning, I would find that the notice to Appellant was reasonable and/or proper, and that the time was excludable against him per Pa.R.Crim.P. 600.

¶ 6 I add that the Majority’s decision not only comports with the obligations of one released on bail, but also with the purpose and spirit of Rule 600, which is a follows.

When considering the trial court’s ruling, an appellate court may not ignore the dual purpose behind Rule 600. The Rule 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 good faith prosecution delayed through no fault of the Commonwealth.

Commonwealth v. Murray, 879 A.2d 309, 312-313 (Pa.Super.2005) (citations omitted). 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. Commonwealth v. Hunt, 858 A.2d 1234, 1239 (Pa.Super.2004). A primary purpose of Rule [600] is to prevent prejudice to the appellant in the preparation of his defense. Commonwealth v. DeMarco, 332 Pa.Super. 315, 481 A.2d 632, 637 (1984).

¶7 Presently, Appellee was obviously aware that he was facing criminal charges for burglary and related offenses since he retained an attorney. That Appellee could just then ignore, evade or otherwise disregard the criminal action against him by failing to keep abreast of his proceeding via counsel should not result in a windfall to him. While it appears that Appellee was not present at the preliminary hearing because he was in a rehabilitation center, it should be noted that Appellee had other charges pending against him in Allegheny County; thus, he was not a novice to the legal system and certainly was aware that he had to face the charges against him. Most importantly, his counsel, who waived the preliminary hearing on Appellee’s behalf did, in fact, receive notice of the arraignment. Counsel’s lack of diligence in advising Appellee of the arraignment combined with Appellee’s complete apathy or utter disdain for the system was the cause of the delay and, therefore is directly attributable to Appellee. The Commonwealth cannot be held accountable.4 Moreover, society, and particularly the victims in this case, should not pay the price when the one who committed crimes •willfully evades the system. Such willfulness is eminently displayed when one knows that he has criminal charges pending, yet shirks the system and his responsibilities *264under the guise of ignorance, ultimately releasing him from any punishment whatsoever.

¶ 8 For the foregoing reasons, I join the Majority’s opinion reversing the order of the Court of Common Pleas of Westmore-land County.

. The Westmoreland County rules referred to in this Concurring opinion were revised effective September 18, 2006. This concurring opinion cites the rules that were in effect at the time relevant to Appellee's proceedings.

. “Where 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. To rule otherwise would permit a defendant who intentionally absented himself from a scheduled court hearing to have the charges against him dismissed if the Commonwealth’s efforts to locate him did not measure up to a court’s standard of due diligence. Such a result is obviously absurd.” Commonwealth v. Cohen, 392 at 1331.