Commonwealth v. Baird

DISSENTING OPINION BY

BENDER, J.:

¶ 1 I must respectfully dissent, as I conclude that the trial court did not abuse its discretion in its application of Pa. R.Crim.P. 600. I agree with the Majority that a “defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is deemed unavailable from the time of that proceeding until he is subsequently apprehended -or until he voluntarily surrenders himself.” Majority Opinion at 260 (citing Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327, 1331 (1978)) (emphasis added). However, the Cohen Court emphasized that a defendant who is out on bail will be charged with appearing at a scheduled court proceeding of which he had received “reasonable notice[,]” and that where the delay in bringing him to trial results from his “willful failure to appear at the appointed time[,]” exclusion of time for Rule 600 purposes is not warranted. Cohen, 392 A.2d at 1330 (emphasis added). Indeed, the Cohen Court indicated that only where “the accused is aware of his obligation to appear and fails to do so, he may legitimately be held accountable for any resultant delay.” Id. at 1331. Thus, I depart from the Majority’s opinion because the trial court found, as a matter of fact and with support in the record, that Appel-lee was not properly notified of his scheduled arraignment. However, I also depart from the Majority’s opinion, as it is in direct contravention of plain, unambiguous language in the applicable state and local court rules.

¶ 2 Initially, I disagree with the Majority’s sweeping pronouncements of law that (1) “it is the responsibility of defense counsel to advise a defendant of court proceedings requiring the defendant’s presence[;]” and (2) “[wjhere defense counsel has actual notice of a proceeding and fails to so inform his or her client, the onus and consequences of such failure fall upon the defendant.” Id. at 261. These appear to be new rules of law5 created by the Ma*265jority upon which it concludes that “notice to Appellee’s counsel constituted proper notification to Appellee of the date of his arraignment.” Id. at 261. The Majority’s sweeping proclamations and its resultant holding are in sharp conflict with the plain language of the following local and state rules of criminal procedure.

¶ 3 First, the Westmoreland County local court rules unambiguously mandate that proper notification to a defendant of the date of his or her formal arraignment be provided by the court, not by defense counsel. Specifically, the Westmoreland County Rules of Criminal Procedure (“WC”), Rule 541 (“Waiver of Preliminary Hearing”), instructs as follows: “The district justice may accept a Waiver of the Preliminary Hearing in accordance with Pa.R.Crim.P. 541. The district justice will schedule the court arraignment in accordance with Westmoreland County Rule of Criminal Procedure WC542(b) and inform the defendant of the time and place of arraignment.” WC541 (emphasis added). Accordingly, proper notice to the defendant of the scheduled arraignment is to be provided by the court directly to the defendant. Contrary to the Majority’s holding, the onus of notification under these circumstances is not on defense counsel, it is on the court.

¶ 4 This conclusion is bolstered by consideration of local rule WC542 (“Preliminary Hearings”), which reads in pertinent part:

(b) Scheduling Court Arraignment

(2) The magisterial district judge shall:
A. advise the defendant and counsel of the time, date, and place of arraignment, and that failure to appear at arraignment may result in the defendant’s arrest and forfeiture of bond;
B. complete a court arraignment form;
C. require the defendant to sign the court airaignment form indicating that the defendant is aware of the time and place of arraignment and the obligation to appear; and
D. provide the defendant with a copy of the court arraignment form, retain a copy; and forward the original with the official record to the clerk of courts as required by Pa.R.Crim.P. 547.

*266WC542(b)(2) (emphasis added). Again the Majority’s blanket holding that defense counsel must inform his or her client of court dates requiring the defendant to appear is in sharp contrast with the plain language of the above rule, which requires (1) the court to advise the defendant and (not “or”) counsel of the scheduled arraignment; and (2) the defendant (not just counsel) to sign the court arraignment form to ensure that the defendant (not just counsel) is aware of the scheduled arraignment. The Majority’s holding cannot be reconciled with the plain language of the above-quoted local rules.

¶ 5 Additionally, Pa.R.Crim.P. 541 reads as follows:

Rule 541. Waiver of Preliminary Hearing
(A) The defendant who is represented by counsel may waive the preliminary hearing at the preliminary arraignment or at any time thereafter.
(B) The defendant who is not represented by counsel at the preliminary arraignment may not at that time waive the preliminary hearing.
(C) If the defendant waives the preliminary hearing and consents to be bound over to court, the defendant and defense attorney, if any, shall certify in writing that the issuing authority told the defendant of the right to have a preliminary hearing; and that the defendant voluntarily waives the hearing and consents to be bound over to court.

Pa.R.Crim.P. 541 (emphasis added). Although the local rules provide more detail with regard to notification to a defendant of his or her formal arraignment .date, Pa.R.Crim.P. 541, while permitting waiver of a preliminary hearing, requires the presence of the defendant to do so or, in the absence of the defendant, a written waiver signed by the defendant to do so. In other words, like the local rules, subsection (C) requires the written certification of the defendant and the defense attorney, if any. Subsection (C) does not state the certification can be signed by the defendant or the defense attorney. Thus, the position taken by the Majority and the Commonwealth, ie., “when the Defendant’s attorney signed the written notice of the arraignment, the Defendant must be found to be on notice of the hearing[,]” see Commonwealth’s brief at 9, is untenable under the plain language of the applicable rules and contrary to case law, see, e.g., Cohen, 392 A.2d at 1330-31.

¶6 Indeed, Appellee’s counsel, Kevin Zinski, Esq., waived Appellee’s preliminary hearing and signed the notice of arraignment. However, Pa.R.Crim.P. 541(C) and local rule WC542(b)(2)(C) clearly do riot permit such a procedure. Rather, these rules require a defendant’s signature on the waiver form, so that he or she cannot later claim that he or she was unaware of the next step in the procedure, ie., the formal arraignment.

¶ 7 The content of the form used for the written waiver of a preliminary hearing supports my interpretation of Pa. R.Crim.P. 541 and the local rules. For example, the language of the waiver form is written in the first-person, e.g., “I, the undersigned, certify that I waive my right to a preliminary hearing ... [,]” “I understand that I have a right ... to .... be represented by counsel ... [,]” etc. Following the enumeration of various rights, the form provides two signature lines — one for the defendant and one for his or her attorney. In the instant case, as the Majority recognizes, the waiver form is signed only by Attorney Ziniski. The signature line provided for the defendant is blank. A separate “Official Court Arraignment Form” was also signed only by Attorney Ziniski in the space provided for the defendant’s signature. These forms appear to *267comport with the state and local court rules to ensure that the defendant is informed of his or her scheduled formal arraignment, and such rules were not followed in the instant case. A defendant’s attorney’s signature only, in the absence of the defendant’s own signature, is inadequate for purposes of “proper notice.”

¶ 8 Moreover, the position taken by the Majority is untenable for practical reasons. In many instances, prior to the time of a preliminary hearing, an attorney has not entered his appearance and has no further obligations until he does so at the formal arraignment. See Pa.R.Crim.P. 571.6 Often, attorneys charge separately for their services at a preliminary hearing and if the case is bound over, and if the defendant and the attorney can reach agreement as to fees, the attorney then enters his or her appearance at the arraignment. See, e.g., WC Rule 120(a) (providing that an entry of appearance may be filed on a Waiver of Arraignment form). The Majority’s interpretation of Pa.R.Crim.P. 541 and the above-noted local rules imposes obligations on defense attorneys that are not workable given the practicalities of a criminal case.

¶ 9 Based on the facts of the present case, especially the trial court’s express finding that Appellee did not receive proper notice of his scheduled arraignment, I respectfully dissent from the Majority’s opinion. Accordingly, I would have proceeded to further examine the Rule 600 issue, and would have also concluded that the trial court did not abuse its discretion by not counting the relevant period of time against Appellee for Rule 600 purposes.

. The Majority's broad propositions of law are also not supported by the cases it cites, i.e., Commonwealth v. Snyder, 373 Pa.Super. 582, 542 A.2d 95 (1988); Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983); and Commonwealth v. Cornish, 311 Pa.Super. 72, 457 A.2d 118 (1983). See Majority Opinion at 5. These cases dealt with situations, unlike that presented here, where the defendant had actual notice of his scheduled arraignment or where the defendant had been deemed properly notified of his trial date that had been postponed by his own attorney. See Snyder, 542 A.2d at 97-99 *265(holding time not excludable for Rule 600 purposes where defendant, who had appeared before the district justice, waived his right to a preliminary hearing, and received written notice of his scheduled arraignment, was found by the trial court to have intentionally and willfully failed to appear at the scheduled arraignment); Derrick, 469 A.2d at 1116 (holding that where the defendant had notice of trial initially scheduled, as evidenced by notices containing his signature, and where defense counsel later requested a continuance and trial was rescheduled, defendant held to have been sufficiently notified of rescheduled date based on oral notice of new date given to his attorney); Cornish, 457 A.2d at 121 (holding that defendant had notice of preliminary hearing upon service of bail certificate, under circumstances where the defendant conceded that he had received the notice, but was challenging the form of the notice). Derrick is not analogous to the instant case, but the holdings in Snyder and Cornish comport with the Cohen Court’s mandate that a defendant must be properly notified of his or her formal arraignment date. Accordingly, these cases do not support the Majority’s newly pronounced, sweeping rules of law, which have the effect of placing the onus of notification on defense counsel in practically every conceivable instance. In fact, all of these cases deal with situations where the defendants were found to have had actual notice of the scheduled court proceeding at issue. Here, the trial court found as a matter of fact that Appellee did not have proper notice, likely based on its credibility determination that defense counsel did not notify Appellee of his scheduled arraignment.

. Even Pa.R.Crim.P. 571(D)(2) requires that, in order to waive appearance at arraignment, both counsel and the defendant must sign the waiver, thereby ensuring that the defendant understands certain rights and procedures.