Commonwealth v. SnyderCommonwealth v. Snyder
- Reporters:
- , ,
- Before:
- Cavanaugh
Pursuant to the defendant’s motion under
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On March 8, 1977 the defendant was arrested for driving while intoxicated. On the same day a complaint was filed, he waived a preliminary hearing and was released on bond. On April 6, 1977 the Commonwealth sent to the defendant a notice of his trial date by certified mail return receipt requested. This notice was returned to the Commonwealth marked “unclaimed” on April 22, 1977.
1
On the scheduled trial date, June 15, 1977, the defendant did not appear and at the Commonwealth’s request a bench warrant was issued. On August 17, 1978 the defendant was stopped for motor vehicle violations; he was then arrested on the bench warrant and subsequently was released. In September he filed a motion for continuance to the December term of court
2
and in November he filed a motion to dismiss under
The Commonwealth is required to try a defendant within 180 days of the filing of the complaint.
Under 1100(d) the Commonwealth may exclude any period of delay which results from the unavailability of the defendant.
In
Cohen,
the Supreme Court held that “a defendant on bail who fails to appear at a court proceeding,
of which he has been properly notified,
is unavailable [under
We first consider whether certified mail is a sufficient form of notice under
Cohen.
It is true, as the Commonwealth argues, that
Bundridge is the only case we have discovered which discusses forms of notice which are sufficient under Cohen. 3 Relying on Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-14, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), Bundridge states trial notice which is reasonably calculated to give actual notice is sufficient under Cohen. Bundridge, supra, 268 Pa.Super. at 11, 407 A.2d at 412. It specifically mentions that reasonable notice under Cohen includes personal service of written notice to the defendant, oral notice to the defendant and oral or written notice to defendant’s attorney of record. Id. It expressed no opinion as to the propriety of giving notice by certified mail. We hold that since notice by certified mail addressed to the defendant is reasonably calculated to give actual notice, it is a sufficient form of notice under Cohen.
Although notice by certified mail addressed to the defendant may be a sufficient
form
of notice under
Cohen,
it remains for us to determine whether under the facts of this case the defendant was in fact “properly notified.” Although
Cohen
speaks of “receipt of reasonable notice,” “willful failure to appear,” and “where the defendant is on bail and has notice,”
Cohen, supra,
481 Pa. at 354-55, 392 A.2d at 1330-31, we do not interpret it as requiring
actual
notice to appear. However, we also do not interpret
Cohen
as automatically allowing an exclusion under
Here, the judge made findings of fact or there was uncontradicted evidence that, although notice was sent by certified mail and it was correctly addressed, the defendant never received it, he never received the postal notice that stated there was an unsuccessful attempt to deliver the notice and that it was waiting for him at the post office, and he never refused the delivery of the notice. Moreover, the Commonwealth knew he had not received the notice since it was returned to the Commonwealth. Thus, although the Commonwealth employed a reasonable form of notice, since it knew the defendant did not receive the notice and the defendant was not at fault for not receiving the notice, Cohen does not allow the Commonwealth an exclusion of time merely because it sent the notice.
Nevertheless, the Commonwealth may still prevail if it establishes that the defendant could not be located despite its exercise of due diligence.
Commonwealth v. Smith, supra; Commonwealth v. Bundridge, supra; Commonwealth
v.
Clark, supra.
The lower court did not consider whether or not the Commonwealth exercised due diligence. It merely decided that the defendant was not properly notified under
Cohen.
Under
Cohen
a due diligence analysis is misplaced if the defendant is on bail and has notice.
Cohen, supra,
481 Pa. at 355, 392 A.2d at 1331. Having found that proper notice was not given under
Cohen,
the lower court should have determined whether the Commonwealth exercised due diligence. For example, the Common
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wealth may have exercised due diligence through its efforts to execute the bench warrant. We note, however, that the mere issuance of a bench warrant does not establish due diligence.
Commonwealth v. Smith, supra; Commonwealth v. Bundridge, supra; Commonwealth v. Clark, supra; cf. Commonwealth v. Ashford,
277 Pa.Super. 400, 419 A.2d 1206 (1980) (due diligence in context of petition to extend time for trial under
Since the lower court failed to consider the issue of due diligence, we remand for an evidentiary hearing to determine whether the Commonwealth can establish its due diligence in locating the defendant and to determine the amount of time excludable under
Remanded.
Notes
. The time from the filing of the complaint until the time the defendant would have been tried if the case had not been dismissed is so much in excess of the 180-day period that it is unnecessary for us to decide whether the time from the sending of the notice to the time it. was returned unclaimed is excludable under
. If the time for the continuance was excluded as provided by
. This discussion appears in Judge Hoffman’s dissenting opinion. Judge Hoffman dissented since he found the record was inadequate to determine whether proper notice had been given to the defendant. The majority did not discuss the forms of notice which are permissible and thus did not disagree with the dissent on this point.