Commonwealth v. FisherCommonwealth v. Fisher
- Reporters:
- , ,
- Before:
- Cirillo
OPINION
CIRILLO, Judge:The Commonwealth appeals from an order discharging appellee Raymond Fisher under Pennsylvania Rule of Criminal Procedure 1100.
This case arose from the rape of a seventeen-year-old girl in Philadelphia on July 20, 1976. A criminal complaint charging Fisher with the crime was filed the next day; however, Fisher managed to elude apprehension until November 11, 1978. At least seven times over the course of the next four years, Fisher was adjudged incompetent, and consequently could not be brought to trial for most of that period. On August 26, 1982, the Court of Common Pleas of
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Philadelphia County found Fisher to be competent and ordered his case to proceed to trial on September 22, 1982. Before the date set for trial, Fisher’s counsel, pursuant to
Rule 1100, as applicable to this case, provides that the Commonwealth has 180 days from the filing of a criminal complaint to bring the defendant to trial.
After analyzing the long and tortuous procedural history of this case, we have concluded that all periods of delay beyond 180 days were properly accounted for under the rule, and hence discharge was erroneous.
It is beyond dispute that Fisher was a fugitive from justice for the period from 7/21/76 to 11/11/78, when finally he was arrested. Fisher absented himself throughout this entire period despite duly diligent efforts by the police to locate him, and the entire period must therefore be chalked up to unavailability and excluded from the Rule 1100 computation. Commonwealth v. Winn, 327 Pa.Super. 296, 475 A.2d 805 (1984); Commonwealth v. Lyles, 315 Pa.Super. 194, 461 A.2d 1237 (1983). Thus the 180 days the Commonwealth had to bring Fisher to trial did not begin to run until November 11, 1978.
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The running of the period was tolled soon thereafter when, on December 21, 1978, the defendant requested and received a continuance of the preliminary hearing in order to undergo psychological evaluation of his competency.
See
Mental Health Procedures Act of July 9, 1976, P.L. 817, No. 143, § 402, effective in 60 days,
as amended by
Act of Nov. 26, 1978, P.L. 1362, No. 324, § 2, effective in 60 days,
The period of exclusion attributable to the December 21 continuance lasted until May 7, 1979, when Fisher was declared competent. 1 At that point, Rule 1100 commenced again to run until May 22, 1979, when the court ordered further psychiatric testing to determine Fisher’s competency to stand trial. Fisher’s psychological status remained undetermined until September 5, 1979, when again he was found incompetent. 2 Over the next year and a half, Fish *454 er’s condition was repeatedly reevaluated; the incompetency finding of 9/5/79 was not reversed, however, until February 19, 1981, when the court declared him competent to stand trial.
The 180-day period ran again until May 5, 1981, on which date defense counsel was unavailable for trial and the defendant waived the running of the rule until September 28, 1981. Meanwhile, on September 1, 1981, the court again ordered Fisher to undergo psychiatric examination, thus tolling the rule. On October 1, 1981, the court found Fisher incompetent and ordered him committed for treatment pursuant to the Mental Health Procedures Act. Fisher was not again adjudged competent until November 6, 1981. The entire period between 5/5/81 and 11/6/81 must be excluded from the Rule 1100 computation as attributable to appellee’s waiver of the rule,
see Commonwealth v. Dunbar,
508 Pa. 590, 470 A.2d 74 (1983);
cf.
The running of the rule was tolled again on November 20, 1981, when the case was continued due to Fisher’s apparent relapse to incompetency. On November 24, he was recommitted for lack of competency. He was next found competent on December 30, 1981. As of the 30th of December, 1981, according to our calculation, only 140 days of the Rule 1100 period had elapsed. These 140 days not excludable under Rule 1100(d) were:
11/11/78-12/20/78 39 days
5/7/79 - 5/21/79 14
2/19/81- 5/4/81 74
11/6/81 -11/19/81 13
Total 140 days
In arriving at our figure, we have applied
Returning our attention to the adjudication of competency entered 12/30/81, the court that same day, by agreement of counsel, extended the Rule 1100 run date to March 30, 1982, and continued the case to February 18, 1982. On February 18, the defendant received a continuance so that the public defender could withdraw from the case and new counsel be appointed. Shortly thereafter, the court again ordered psychiatric testing for the defendant, who was again declared incompetent on February 25, 1982. He remained under incompetency commitment until August 26, 1982, when he was found competent again. There is no question that the entire period commencing February 18 and ending August 26 was excludable from the Rule 1100 period, as time consumed either by a defense-requested continuance, see Rule 1100(d)(3)(h) & Note, or the unavailability of the defendant, Rule 1100(d)(3)(i).
The real crux of this case is the treatment to be accorded the period 12/30/81-2/18/82. We find that this period was
excludable
under the holding of
Commonwealth v. Guldin,
502 Pa. 66, 463 A.2d 1011 (1983).
See Commonwealth v. Byrd,
493 Pa. 178, 183 n. 7, 425 A.2d 722, 724 n. 7 (1981) (it is for the appellate court to decide the legal consequences of periods of delay under Rule 1100(d)). In
Guldin
our Supreme Court held that where the Commonwealth is prepared to go to trial within the Rule 1100 period, and for reasons of trial strategy defense counsel acquiesces in a purported 1100(c) extension beyond the regular run date, the period of extension may be treated as
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excludable
continuance time under 1100(d). Postponement of trial was found to be in the defendant’s best interests in
Guldin
for a number of strategic reasons. In the present case as well, it is clear that postponement of trial on 12/30/81 could only inure to the benefit of the defendant. Fisher’s incompetency was a major factor working in his favor as far as the criminal charges against him were concerned. Indeed, the defendant, through his various counsel twice moved to discharge the prosecution against him on the basis that he was likely to remain incompetent indefinitely.
See
*457 It is said that delay is a defendant’s best lawyer. Where, as here, the defendant has assented to a period of delay and later takes advantage of it, we should be loath to find a violation of the accused’s speedy trial rights. See Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984); Commonwealth v. Dunbar, supra; see also Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981).
Rule 1100 “serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,” Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton 449 Pa. 297, 297 A.2d 127 (1972). 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. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from 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 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, 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. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.
Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-70, 371 (1981).
*458 Here it is crystal clear that the Commonwealth engaged in no misconduct designed to thwart Fisher’s right to be brought speedily to trial. The record shows the contrary, that the Commonwealth was ever ready to afford appellee his precious right to a speedy trial, and was repeatedly frustrated in its efforts by the unfortunate happenstance of appellee‘s bouts with mental infirmity.
When finally the court declared Fisher competent on August 26, 1982, it immediately scheduled the case for trial on September 22, 1982. As we said at the outset, on the trial date the court took up appellee’s Rule 1100(f) motion instead, granting that motion on October 6, 1982. The Commonwealth in the meantime had filed an 1100(c) petition for extension on September 24. The court dismissed this petition as untimely. However, under our calculation there were still forty days of run time left when appellee became available on August 26, 1982. Clearly the Commonwealth’s petition was filed within forty days of August 26, and thus was timely. The court’s erroneous refusal to rule on the merits of the Commonwealth’s extension petition must be remedied by reinstatement of the petition for consideration on remand. Cf. Commonwealth v. Paprocki, 327 Pa.Super. 270, 475 A.2d 792 (1984).
As regards the period following August 26, 1982, we note further that under Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982), the time to be excluded under Rule 1100(d) is not limited to the time during which the defendant is unavailable, but also encompasses the actual delay caused by the defendant’s unavailability. Accord, Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977); Commonwealth v. Bell, supra; Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983); Commonwealth v. Colon, supra; Commonwealth v. Perry, 296 Pa.Super. 359, 442 A.2d 808 (1982). Assuming that on August 26 the hearing court acted diligently and set trial for September 22 because it was the earliest practicable trial date, the entire delay up to and including September 22 was excludable under Rule 1100(d). See Robinson, supra.
*459 The order discharging appellee must be reversed, and the case remanded for proceedings consistent with this opinion.
Reversed and remanded; jurisdiction relinquished.
BECK, J., concurred in the result.
Notes
. On February 28, 1979, a judge of the Philadelphia Court of Common Pleas signed a bench notation that stated, “Information from ADA R. Myers indicates deft, has been declared competent.” In the same notation, the court scheduled a preliminary hearing for March 7, 1979. The hearing took place as scheduled, and Fisher was held for court. We find that the court‘s bare reliance on the representations of assistant district attorney Myers were insufficient to constitute the required judicial finding of competency.
. The trial court erroneously relied on Commonwealth v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1981), for the proposition that appellee was available for *454 those periods during which he was hospitalized for testing but not officially adjudged incompetent. Such a reading of Fisher conflicts with the clear holdings of Millard, Reese, and Quinlan, supra. Fisher held only that a defendant is not unavailable when he has been adjudged competent but remains committed pursuant to the civil provisions of the Mental Health Procedures Act.