Com. v. Williams

284 Pa. Superior Ct. 125 (1981)

425 A.2d 451

COMMONWEALTH of Pennsylvania, Appellant, v. Rodney WILLIAMS.

Superior Court of Pennsylvania.

Argued March 17, 1980.

Filed January 23, 1981.

*126 Nancy Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

*127 Mary Willmann, Assistant Public Defender, Philadelphia, for appellee.

Before HESTER, WICKERSHAM and LIPEZ, JJ.

LIPEZ, Judge:

Appellee was found guilty, after a non-jury trial, of simple assault[1] and robbery.[2] The trial court granted appellee's motion in arrest of judgment on the grounds that his constitutional right to a "speedy trial," as delineated by Pa.R.Crim.P. 1100,[3] was violated. The Commonwealth appeals, and we reverse.

The armed robbery with which appellee was charged was committed on August 31, 1976. Following is a chronology, taken from the record, of the events relevant to this appeal:

 1 September 1976   Appellee was arrested in Washington, D.C.,
                    on charges unrelated to the instant case.
14 September 1976   Detective Robert Groat, of the District of
                    Columbia Metropolitan Police Department,
                    informed the Philadelphia police, by telephone,
                    that, on the basis of the evidence
                    seized when appellee was arrested, he
                    (Groat) suspected appellee's involvement
                    with the Philadelphia robbery of 31 August.
13 December 1977    The Commonwealth of Pennsylvania formally
                    requested custody of appellee under the
                    Interstate Agreement on Detainers.[4]

*128
13 October 1976     Appellee told Detective Groat that he had
                    committed the Philadelphia robbery.
                    The Philadelphia police informed the Philadelphia
                    District Attorney's Office that
                    appellee was in custody in Washington.
                    Richard di Benedetto, in charge of the
                    district attorney's Extradition Unit, telephoned
                    Detective Groat and was told that
                    appellee's trial (on charges arising from
                    crimes committed in Washington) had not
                    yet been scheduled. Detective Groat
                    promised to advise Mr. di Benedetto as soon
                    as the date was set.
14 October 1976     A criminal complaint was filed against
                    appellee in Philadelphia, charging him with
                    the above-mentioned robbery.
13 December 1976    Extradition Unit staff members telephoned
28 December 1976    the office of the United States Attorney
     and            for the District of Columbia and were
21 April 1977       advised that no date had yet been set for
                    appellee's trial.
 4 May 1977         Assistant U.S. Attorney Edward McGuire
                    advised the District Attorney's office that:
                    1) appellee had been indicted in Washington
                    on 9 February 1977; 2) since he had
                    not yet been tried, Washington would not
                    allow extradition to Pennsylvania; and
                    3) extradition would not have been permitted
                    at any time since 1 September 1976
                    (the date of appellee's arrest in Washington).
 9 September 1977   Assistant U.S. Attorney Richard Saltzman
                    informed the District Attorney's office that
                    appellee had pled guilty to the Washington
                    charges on 25 August 1977, and that
                    sentencing had been set for 26 September
                    1977.
28 September 1977   The District Attorney's office was informed
                    that sentencing had been postponed to 5
                    December 1977 because of the commitment
                    of appellee to the Lorton, Va., Youth
                    Center for a sixty day evaluation period.
 5 December 1977    Appellee was sentenced, in Washington, to
                    an indeterminate term of imprisonment
                    with a maximum of eight years.

*129
23 December 1977    The appropriate executive authority in the
                    District of Columbia advised Mr. di Benedetto
                    by letter that the request for custody
                    would be granted.
   January 1978     Delbert Jackson, Director of the Washington
                    Department of Corrections, advised
                    Mr. di Benedetto by letter that appellee
                    had been transferred to the federal prison
                    in Petersburg, Virginia, on 29 December
                    1977. Mr. di Benedetto then telephoned
                    the Petersburg prison and confirmed that
                    the Detainer Agreement forms had been
                    forwarded there. Mr. di Benedetto then
                    sent additional necessary forms to the
                    Virginia prison.
31 January 1978     Appellee was returned to Pennsylvania.
23 May 1978         Appellee was tried and found guilty of the
                    charges arising from the crimes of 31
                    August 1976.

The Court below, Smith, J., denied appellee's pretrial petition, filed pursuant to Pa.R.Crim.P. 1100(f),[5] to dismiss the charges, but the trial court, Lord, J., arrested judgment, concluding that the Commonwealth had not diligently attempted to secure appellee's return to Pennsylvania.

Since Rule 1100 requires commencement of the trial of a criminal defendant within 180 days of filing a complaint against him, and since, in the case before us, appellee was tried more than nineteen months after the complaint's filing, his discharge from criminal liability must be sustained, unless the delay beyond the Rule's limit be justified by an order granting an extension of time, or unless sufficient time as would allow the conclusion that the trial began, in law, before the expiration of the mandated period be excluded, because of appellee's unavailability, from the calculation of the final day. See Commonwealth v. Davis, 261 Pa.Super. *130 204, 209, 395 A.2d 1388, 1390 (1978). The Commonwealth, in the instant case, filed no petition to extend; they contend that appellee was unavailable for trial from 1 September 1976 to 31 January 1978. We agree.

Pa.R.Crim.P. 1100(d) provides, in relevant part:

In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant. . . .

When a criminal defendant is incarcerated in another jurisdiction, and the Commonwealth, notwithstanding its diligence in attempting to do so, cannot secure his return, we may conclude that the defendant has been unavailable. "[T]he Commonwealth has the burden of proving the requisites of Section (d) in order to avail itself of an exclusion and must do so by a preponderance of the evidence. [Citation omitted.] Furthermore, in reviewing a hearing court's ruling that the Commonwealth has met its burden, we shall consider only the evidence presented by the Commonwealth and so much evidence as presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted." Commonwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977); see Commonwealth v. Davis, supra, 261 Pa.Super. at 209-10, 395 A.2d at 1390.

It has been held that

[m]ere incarceration in another jurisdiction does not make defendant unavailable. Appellant will be considered unavailable only for the period of time during which his presence could not be secured despite due diligence by the Commonwealth. Commonwealth v. Richbough, 246 Pa.Super. 300, 369 A.2d 1331 (1977); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977). "There is no question, therefore, that the duty imposed on the Commonwealth by Rule 1100 to bring defendant to trial within the prescribed period is not affected by the fact of his incarceration elsewhere. . . ." Commonwealth v. McCafferty, 242 Pa.Super. 218, 224, 363 A.2d 1239, 1241 (1976).

*131 Commonwealth v. Bass, 260 Pa.Super. 62, 66, 393 A.2d 1012, 1014-15 (1978).

The record of the instant case, as represented in the above chronology, shows that the Commonwealth's efforts to try appellee met the applicable legal standards. Appellee, having fled this jurisdiction, was apprehended elsewhere on the day following his crime here and jailed. There were then, between that date and the day the Commonwealth made formal application for custody of appellee, eight communications between authorities in Philadelphia and the District of Columbia concerning appellee. The Commonwealth requested custody of appellee immediately upon being informed of his sentencing. Appellee was returned to Pennsylvania shortly thereafter, and tried in due course. This situation may thus be distinguished from those obtaining in Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977), where the Commonwealth inexplicably waited six months before seeking custody of the defendant, and in Commonwealth v. McCafferty, 242 Pa. Super. 218, 363 A.2d 1239 (1976), where the Commonwealth did not avail itself of the Interstate Detainer Act.

The lower court's criticism of the Commonwealth for not applying for custody of appellee under the Interstate Detainer Act as soon as it was known that he was in jail in Washington is unfounded, because it is clear that the Act applies only to sentenced prisoners. See 19 P.S. § 1431 Art. III ¶ (a) (repealed). The record of this case shows also that the Commonwealth was not derelict in declining to proceed under the Uniform Criminal Extradition Act (UCEA).[6] The UCEA does not require the return of any prisoner upon demand[7] but merely allows the respective executive authorities of the two states[8] concerned to agree that such a person *132 might be returned under certain conditions.[9] The United States Attorney's communication of 4 May 1977, advising the District Attorney that Washington would not permit appellee's extradition to Pennsylvania until he had been sentenced, and that, for that reason, any request for custody made before 4 May would not have been honored, indicates that initiation of procedures under the UCEA would have been futile.

The facts of this case are quite similar to those of Commonwealth v. Emmett, 274 Pa.Super. 23, 417 A.2d 1232 (1979). In that case, the defendants committed crimes in Pennsylvania, and were later arrested in connection with other crimes in Maryland. This court affirmed the trial court's exclusion, from the Rule 1100 period, of the time between the arrest in Maryland and sentencing on the Maryland charges on the basis of a record showing five communications between appropriate authorities in the two jurisdictions, most of which contacts having been to the effect that Maryland would not allow removal of the defendants to Pennsylvania until they had been sentenced.

Although the issue in Commonwealth v. Hinton, 269 Pa. Super. 43, 409 A.2d 54 (1979), was whether the defendant could have been arrested sooner than he was, the substance of the following statement of this court in that case is not limited to arrests, and may be applied to the matter at hand:

[T]he test is not a venture into hindsight reasoning as to whether, if certain individuals had been contacted, or other things done, an arrest would probably have been made. The matters of availability and due diligence must be judged by what was done by the authorities rather than [by] what was not done. The standard of due diligence demands only reasonable efforts.

Id., 269 Pa.Super. at 50, 409 A.2d at 57-58 (emphasis in original). We think that it is abundantly clear that the Commonwealth did use such reasonable efforts.

*133 The order of the court below is reversed; the judgment is reinstated; and the cause is remanded for imposition of sentence.

NOTES

[1] 18 Pa.C.S. § 2701.

[2] 18 Pa.C.S. § 3701.

[3] Pa.R.Crim.P. 1100(a)(2) provides:

Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

[4] 19 P.S. §§ 1431-1438 (repealed). These sections were subsequently repealed and reënacted as 42 Pa.C.S. §§ 9101-9108, by the Judiciary Act Repealer Act (JARA), Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1330], effective June 27, 1978. In this opinion, however, we shall cite title 19, because generally, an action is governed by procedural rules in effect at its commencement. See Monroeville Land Co. v. Sonnenblick-Goldman Corp. of Western Pa., 247 Pa.Super. 61, 67, 371 A.2d 1326, 1329 (1977).

[5] Pa.R.Crim.P. 1100(f) provides, in part:

At any time before trial, the defendant or his attorney may apply for an order dismissing the charges with prejudice on the ground that this Rule has been violated.

[6] 19 P.S. §§ 191.1-191.31 (repealed), reënacted, by JARA, as 42 Pa.C.S. §§ 9121-9148 and 1 Pa.C.S. §§ 1925 and 1927. We shall cite title 19 herein. See note 4 supra.

[7] See 19 P.S. § 191.5 (repealed).

[8] As defined in the UCEA, "state" includes the District of Columbia. See 19 P.S. § 191.1 (repealed).

[9] See 19 P.S. § 191.1 (repealed).