Commonwealth v. HuntCommonwealth v. Hunt
¶ 1 Appellant, the Commonwealth of Pennsylvania, asks us to review whether the trial court erred when it granted the motion to dismiss the charges against Ap-
¶ 2 The relevant facts and procedural history of this case are as follows. On January 21, 2000, the Commonwealth filed a complaint charging Appellee with rape, 1 two counts of involuntary deviate sexual intercourse, 2 aggravated indecent assault, 3 endangering welfare of children, 4 and corruption of minors. 5 Trial was scheduled for October 16, 2000. On that date the Commonwealth requested a continuance, because the victim was out of the country and unavailable. Appellee’s counsel entered “preserve Rule 1100” 6 as a reason for opposition to the Commonwealth’s request, and did not sign the Commonwealth’s application for postponement. Trial was rescheduled for January 9, 2001.
¶ 3 On January 9, 2001, the Commonwealth was prepared to go to trial, and Appellee requested and was granted a continuance due to a scheduling conflict. Trial was rescheduled for April 9, 2001.
¶ 4 On April 9, 2001, the Commonwealth requested a continuance, because the victim was again unavailable. Appellee’s counsel signed the “consents” section of the Commonwealth’s application for postponement, and did not note on the form any defense opposition. 7 Trial was rescheduled for April 23, 2001.
¶ 5 On April 23, 2001, Appellee requested a continuance to allow time to obtain the victim’s medical records. Trial was rescheduled for October 10, 2001. On October 10, 2001, Appellee requested a continuance, because his counsel was unavailable, and trial was rescheduled for January 30, 2002.
¶ 6 On January 30, 2002, Appellee and the Commonwealth filed a joint “notice” stating that the case could not be heard due to the court’s unavailability, and trial was rescheduled for April 30, 2002. On March 25, 2002, Appellee filed a motion to dismiss the charges pursuant to
• 1/21/00 — Complaint filed.
• 10/16/00 — Original trial date. The Commonwealth requests a continuance, because the victim is out of the country and unavailable. Trial is rescheduled for 1/9/01.
• 1/9/01 — Appellee requests a continuance due to a scheduling conflict. Trial is rescheduled for 4/9/01.
• 4/9/01 — The Commonwealth requests a continuance, because the victim is again unavailable. Trial is rescheduled for 4/23/01.
• 4/23/01 — Appellee requests a continuance to allow him time to obtain the victim’s medical records. Trial is rescheduled for 10/10/01.
• 10/10/01 — Appellee requests a continuancе, because defense counsel is unavailable. Trial is rescheduled for 1/30/02.
• 1/30/02 — Appellee and the Commonwealth file a joint “notice” stating that the case cannot be heard due to the court’s unavailability. Trial is rescheduled for 4/30/02.
• 3/25/02 — Appellee files a motion to dismiss the charges pursuant toPa. R.Crim.P. 600 .
¶ 7 An evidentiary hearing on Appellee’s motion to dismiss proceeded on April 30, 2002, and the court granted the motion on May 8, 2002. The Commonwealth filed a motion for reconsideration, which the trial court denied on May 22, 2002. On May 30, 2002, the Commonwealth timely appealed. On May' 5, 2003, a panel of this Court reversed the trial court’s decision and remanded the matter for further proceedings. On May 19, 2003, Appellee sought en banc reconsideration/reargument, which this Court granted on July 18, 2003.
¶ 8 The Commonwealth raises one issue for our review:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED APPELLEE’S MOTION TO DISMISS PURSUANT TO ■RULE 600 WHERE EVIDENCE DEMONSTRATED THAT THE DEFENSE ACCEPTED THE PROSECUTION’S INADVERTENT MISCALCULATION THAT MOVED THE TRIAL DATE THREE DAYS BEYOND THE ADJUSTED RUN DATE, AND WHERE THE EVIDENCE SHOWED THAT THE COMMONWEALTH WAS DILIGENT IN ATTEMPTING TO BRING APPELLEE TO TRIAL AND HAD ONLY REQUESTED THE POSTPONEMENT BASED ON A CIRCUMSTANCE BEYOND ITS CONTROL?
(Appellant’s Brief at 4).
¶ 9 “In evaluating Rule [600] issues, our standard of review of a trial court’s decision- is whether the trial court abused its discretion.”
Commonwealth v. Hill,
¶ 10 “The proper scope of review. . .is limited to the evidence on the record of the Rule [600] evidentiary hearing, and the findings of the [trial] court.”
Hill, supra
at 244,
Additionally, when considering the trial court’s ruling, this Court is not permitted to ignore the dual purpose behind Rule [600]. Rule [600] serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society. In determining whether аn 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. Aaron,
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. In considering [these] matters..., 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. Corbin,
¶11 Initially, the Commonwealth contends Appellee consented to its April 9, 2001 request for continuance until April 23, 2001, by signing the Commonwealth’s application. The Commonwealth asserts it raised the issue of “consent” at Appellee’s Rule 600 evidentiary hearing; however, the court misapprehеnded the Commonwealth’s argument. Nevertheless, by virtue of defense consent, the Commonwealth maintains Appellee waived his Rule 600 rights for the three (3) calendar days between the adjusted run date of Friday, April 20, 2001, and the scheduled trial date of Monday, April 23, 2001.
¶ 12 Furthermore, the Commonwealth alleges it exercised due diligence in bringing Appellee to trial, where both of the Commonwealth’s requests for postponement were due to circumstances beyоnd its control, and where the Commonwealth had been prepared to try the case on January 9, 2001, before the initial run date, when the defense requested a continuance. The Commonwealth concludes the trial court erred and abused its discretion in dismissing the charges against Appellee, and the order granting Appellee’s Rule 600 motion should be vacated.
¶ 13 Appellee counters the Commonwealth should have brought him to trial on Friday, April 20, 2001. Aрpellee insists the trial court discredited the Commonwealth’s efforts to bring him to trial in a timely fashion. Moreover, Appellee maintains the Commonwealth did not demonstrate reasonable efforts to secure the attendance of the victim at trial. In his “Substituted Reply Brief,” Appellee claims the Commonwealth waived its right to argue “consent” by the defense to the new trial date of April 23, 2001, where the Commonwealth failed to raise this contention at the Rule 600 evidentiary hearing. Alternatively, Appellee submits for the
¶ 14 Rule 600 sets forth the speedy trial requirements and provides in pertinent part:
Rule 600. Prompt Trial
(A)(3) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.
(C) In determining the period for commencement of trial, there shall be excluded therefrom:
(1)the period of time between the filing of the written complaint and the defendant’s arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly wаives Rule 600;
(3) such period of delay at any stage of the proceedings as results from:
(a) the unavailability of the defendant or the defendant’s attorney;
(b) any continuance granted at the request of the defendant or the defendant’s attorney.
(G) For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant’s attorney may apply to the court for an order dismissing the charges with prejudice on thе ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed fоr trial on a date certain.
¶ 15 In assessing a Rule 600 claim, the court must exclude from the time for commencement of trial any periods during which the defendant was unavailable, including any continuances the defendant rеquested and any periods for which he expressly waived his rights under Rule 600.
¶ 16 The law recognizes the distinction between “excludable time” and “excusable delay” in the context of Rule 600 has been blurred.
Jackson, supra.
“Excludable time” is defined in Rule 600(C) as the period of time between the filing of the written complaint and the defendant’s arrest, provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence
10
; any period of time for which the defendant expressly waives Rule 600; and/or such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant’s attorney; (b) any continuance granted at the request of the defendant or the defendant’s attorney.
¶ 17 If the Commonwealth attempts to
bring
a defendant
to
trial beyond the 365 day-period prescribed by Rule 600, and the defendant files a Rule 600 motion to dismiss, the court must assess whether there is excludable time and/or excusable delay.
Hill, supra
at 263,
¶ 18 “Due diligence is a fact-specific concept that must be determined on a case-by-case basis.”
Id.
at 256,
¶ 19 “Reasonable effort” includes such actions as the Commonwealth listing the case for trial prior to the run date “to ensure that [defendant] was brought to trial within the time prescribed by Rule [600].”
Aaron, supra
at 43-44.
See also Hill, supra
at 264,
¶ 20 In the instant case, the Commonwealth filed its complaint on January 21, 2000. The mechanical run date was January 20, 2001, because 2000 was a leap year. Trial was originally scheduled for October 16, 2000, but was rescheduled for January 9, 2001, at the Commonwealth’s request, because the victim was out of the country and unavailable. Nevertheless, the new trial date of January 9, 2001, was still well within the time limit set by Rule 600.
¶21 On Jаnuary 9, 2001, the defense requested a continuance, and trial was rescheduled for April 9, 2001. This 90-day continuance yielded an adjusted run date of April 20, 2001. On April 9, 2001, the Commonwealth requested a postponement, because the victim’s mother had entered a drug and alcohol rehabilitation facility without notifying the Commonwealth of her whereabouts. The victim in this ease was a minor and could not come to court on her own. Hence, she was again unavailаble. Defense counsel signed the “consents” section of the Commonwealth’s application for postponement until April 23, 2001, and did not note any objections or reasons for opposition. The new trial date was three calendar days after the adjusted ran date.
¶ 22 On April 23, 2001, the defense requested a continuance to allow time to obtain the victim’s medical records. Trial was rescheduled for October 10, 2001. On October 10, 2001, Appelleе requested another continuance, because his counsel was unavailable, and trial was rescheduled for January 30, 2002. On January 30, 2002, Appellee and the Commonwealth filed a joint “notice” stating that the case could
¶23 At the April 30, 2002 evidentiary hearing on Appellee’s Rule 600 motion, the Commonwealth argued Appellee agrеed to the April 23, 2001 trial date. (N.T., 4/30/02, at 11-12). Specifically, the Commonwealth claimed, “With counsel present we agreed to try it on Monday.” (Id.) The transcript of the hearing makes clear that the trial court immediately misapprehended the Commonwealth’s position, took the inquiry in a different direction, and thereby prevented the Commonwealth from elaborating on the consent issue. (Id.). Thus, we reject Appellee’s contention that the Commonwealth waived this argument by not raising it at the Rule 600 hearing.
¶ 24 Further, we observe defense counsel signed the Commonwealth’s April 9, 2001 application. Notably, counsel had previously refused to sign the Commonwealth’s October 16, 2000 application. Defense counsel signed the Commonwealth’s April 9, 2001 application without noting any objections as she had previously done on the Commonwealth’s October 16, 2000 application. The signature and lack of objection constitute consent to the April 23, 2001 trial date, and a waiver of Appellee’s Rule 600 rights with respect to the three (3) calendar days between the adjusted run date of Friday, April 20, 2001 and the scheduled trial date of Monday, April 23, 2001. Thus, under Guldin, supra; Taylor, supra, and Walls, supra, the April 9, 2001 request for postponement was jointly made and is excludable from the Rule 600 time for commencement of trial.
¶ 25 The April 23, 2001 and October 10, 2001 continuances also constitute excluda-ble time, because they were “granted at the request of the defendant or the defendant’s attorney”.
¶ 26 Moreover, even if Appellee had not consented to the April 23, 2001 date, and a Rule 600 violation had occurred, the inquiry would then be whether the delay in bringing Appellee to trial was excusable because the Commonwealth exercised due diligence in bringing Appellee to trial and the circumstances occasioning the postponement were beyond the control of the Commonwealth.
See Hill, supra
at 263,
¶ 27 The scheduled trial dates of October 16, 2000, and January 9, 2001, were well within the time limit set by Rule 600. The Commonwealth’s October 16, 2000 request for postponement based upon the victim’s absence from the country and unavailability was a circumstance beyond the Commonwealth’s control. The January 9, 2001 defense continuance delayed trial until April 9, 2001, which was close to the Rule 600 adjusted run date of April 20, 2001. On April 9, 2001, the Commonwealth requested a continuance duе to the victim’s unavailability, again a circumstance beyond the Commonwealth’s control. Because of a failure to account for the leap year in 2000, the Commonwealth inadvertently re-listed Appellee’s case for trial on Monday April 23, 2001, instead of the adjusted run date of Friday April 20, 2001. As a result of this administrative error, Appellee’s trial was scheduled to
¶ 28 The Commonweаlth was prepared to proceed on at least one of the prior trial dates. (N.T., 4/30/02, at 10). Further, there is no evidence in the record of any conduct on the part of the Commonwealth calculated to evade Appellee’s speedy trial rights. Under the prevailing law of Aaron, supra and Wroten, supra, the record demonstrates the Commonwealth put forth reasonable efforts to bring Appellee to trial within the limits set by Rule 600. The record also demonstrates thаt most of the circumstances occasioning the postponement were beyond the control of the Commonwealth. Thus, even if the April 9, 2001 continuance had not been jointly requested, the trial court erred when it found the Commonwealth had not exercised due diligence in bringing Appellee to trial.
¶ 29 Based upon the foregoing, we hold the trial court erred when it dismissed the charges against Appellee, based upon the alleged Rule 600 violation. We further hold, the court abused its discretion when it concluded the Commonwealth had faded to exercise due diligence under the circumstances of this case. Accordingly, we vacate the court’s order and remand the matter for trial.
¶ 30 Order vacated; case remanded. Jurisdiction is relinquished.
Notes
. 18 Pa.C.S.A. § 3121.
. 18 Pa.C.S.A. § 3123.
. 18 Pa.C.S.A. § 3125.
. 18 Pa.C.S.A. § 4304.
. 18 Pa.C.S.A. § 6301.
. Rule 1100 was renumbered Rule 600, effective April 1, 2001.
. The Commonwealth’s October 2000 application for postponement states the victim was unavailable bеcause she was out of the country. (See Commonwealth's Application for Postponement, dated October 16, 2000.) Later, the Commonwealth explained that trial was twice postponed, because the victim’s mother had entered a drug and alcohol rehabilitation facility without notifying the Commonwealth of her whereabouts. (See Commonwealth’s Motion to Reconsider Dismissal of Charges Pursuant to Rule 600, dated May 17, 2002, at ¶ 2.) Because the victim in this case was a minor, the victim could not come to court on her own. Accordingly, the victim was deemed unavailable for trial purposes.
. As petitioner for en banc reargument, Appellee filed his substituted brief first, followed by the Commonwealth’s substituted brief, to which Appellee filed a substituted reply brief.
. A reply brief cannot be used as an opportunity to raise additional issues on appeal.
See
Pa.R.A.P. 2113;
Commonwealth v. Potts,
. The “due diligence” required under Rule 600(C)(1) pertains to the Commonwealth’s efforts to apprehend the defendant. We note, the other aspects of Rule 600(C) defining "ex-cludable time” do not require a showing of due diligence by the Commonwealth.