Lead Opinion
On August 21, 2001, аppellant,. James T. Williams, a.k.a. “Mathematics,”
On May 29, 1995, Richard White, a.k.a. “Pookie,” telephoned Lamar Peterson, a friend of appellant, seeking to buy a large quantity of marijuana to replenish the inventory for his drug dealing operation. Peterson concluded that if White had sold all his marijuana, White would have a significant amount of cash on hand. Peterson suggested to appellant that they rob White through a “stinger;” Peterson would engage White in a drug transaction, during which appellant would suddenly appear and rob them both. Peterson and appellant would reconnect later and share in the pelf.
Peterson, appellant, and Curtis French set out to find White, but Peterson could not remember the exact location of White’s apartment. The three returned to Peterson’s apartment where they informed Ralph Logan, a.k.a. “Rah-Rah,” and Luis Avila, a.k.a. “T-Bone,” of the plan. The group decided to make another attempt to find White. This time, Avila called White and informed him he would soon drop by to purchase marijuana. Avila, Logan, and appellant set out on another robbery attempt; however, this too was unsuccessful after the trio went to the wrong apartment. Again, appellant and his cohorts returned to Peterson’s apartment.
Giving the “stinger” one last try, Avila called White again and ascertained his apartment’s exact location; appellant, Avila, and Logan again set out to rob him. White was on his balcony when he saw the trio approaching; White tucked a pistol in the rear of his shorts and headed to the street, where he encountered the group. Appellant demanded White take him to his apartment and hand over his cash. When White refused, pleading with his arms in the air that his children were inside sleeping, appellant pulled out a MAC 10 automatic weapon and fired two bullets into
With White lying in the street, the group fled back to Peterson’s apаrtment. Upon their arrival, appellant informed Peterson that because White was uncooperative, he “wetted him lovely,” ie., appellant shot him. N.T. Trial, 7/20/01, at 1891. The other robbers also testified that appellant bragged about shooting White.
Later that summer, Peterson and appellant were arrested in Baltimore by the FBI for an unrelated bank robbery. Facing federal charges, Peterson told authorities of appellant’s role in the robbery and murder of White. Avila, French, and Logan were also arrested and each corroborated Peterson’s account. The three later testified appellant used the same weapon in many subsequent bank robberies. Photographs in Peterson’s possession at the time of his arrest depicted appellant, Peterson, French, and Logan; one showed appellant posing with the MAC 10 used to kill White.
In November, 1996, appellant was convicted in federal court of robbery and was sentenced to 687 months federal incarceration. Having already filed first degree murder charges against appellant, Lehigh County prosecutors monitored appellant’s federal prosecution and attended portions of his federal trial. N.T. Pretrial Hearing, 2/03/00, at 50. Appellant was ultimately transferred to a federal prison in Colorado; Lehigh prosecutors sought extradition. This request was delayed because appellant had previously filed homicide charges pending against him in New Jersey, which was also attempting to secure him. Eventually appellant was transferred to Lehigh County.
Despite repeated warnings and recommendations from the court to the contrary, appellant represented himself during pretrial hearings and at trial. At trial, and with standby counsel assisting when appellant permitted, appellant attempted to undermine the credibility of his accusers, but took the opportunity to personally attack Commonwealth prosecutors, officers, and criminal justice personnel. See N.T. Pretrial Hearing, 10/12/00, at 4 (appellant repeatedly slurred one black prosecutor as “house n* * * *r” and lead prosecutor as conspirator and liar).
Since the majority of the Commonwealth’s witnеsses were co-conspirators in numerous robberies and were currently serving time for other crimes, appellant harangued each about the reduced sentences they received in exchange for their cooperation with the Commonwealth. See, e.g., N.T. Trial, 7/23/01, at 2197-98, 2205-09, 2213-14; id., 7/24/01, at 2407-09; id., 7/27/01, at 3307-08. Appellant suggested French was the triggerman in White’s murder, and maintained a statewide conspiracy was afoot wherein the Lehigh County District Attorney’s Office, numerous police departments, prison staff employees, and even appointed standby defense counsel were acting in concert.
Police came into possession of the murder weapon after a failed robbery attempt by appellant, Peterson, French, and another individual. As was their typical strategy, the group tried to rob a drug dealer but were unsuccessful when the dealer brandished a weapon; French dropped the machine gun as the three fled for their lives. Ballistics tests revealed the gun recovered was used in White’s murder. This same weapon was also linked to the bank robbery appellant was convicted of in federal court. The car used in the perpetration of White’s murder was also tracked down by police; it had been rented by an associate of appellant, and had a dent in the fender consistent with the strike of a bullet. Testimony revealed that when appellant shot White, one of the bullets exited
In addition to the physical evidence, the Commonwealth offered expert medical testimony consistent with its other ■witnesses’ version of the killing, particularly the fact that White was shot while his arms were raised. Id., 7/23/01, at 2270, 2293-94. The Commonwealth also presented David Miller, an inmate at Lehigh County Prison, who testified appellant admitted to him he had killed somebody and was seeking Miller’s legal advice concerning his case. Id., 7/26/01, at 3078.
Besides soliciting Miller’s assistance, appellant spoke to another inmate, Louis Washington, about having one of Washington’s family members provide an alibi for appellant’s whereabouts on the night of White’s murder. See id., 7/30/01, at 3584-87 (“So then [appellant] offered me some money, and he offered my family some money to have my mother be his alibi.... ”). Coached by appellant, this woman was to tеstify appellant was with her during the homicide, and because she had no criminal record or prior involvement with appellant, her story would be believed over appellant’s criminal cohorts. After being threatened by appellant, Washington told the Commonwealth of appellant’s fabrication plans. As a result, and at the meeting arranged by appellant to “go over” this testimony, Washington’s mother was portrayed by state Trooper Regina Stafford; the Commonwealth had previously secured warrants to record the conversations. During the conversation, appellant orchestrated a time sequence placing him with Washington’s mother at the time of White’s murder, and informed her exactly what she was expected to say.
At trial, appellant called Washington to authenticate an affidavit exonerating appellant which Washington had signed; Washington testified he signed the affidavit only after being threatened. N.T. Trial, 7/30/01, at 3549-62. Appellant attacked Washington’s credibility and the suggested alibi fabrication story; on cross-examination, the Commonwealth further explored the fabrication story. After appellant again tried to discredit Washington by alleging he invented the alibi story to curry favor with the Commonwealth, the prosecution was granted permission, in rebuttal, to verify Washington’s version of events. Officer Stafford testified to the alibi plot, and the tape recording of the conversation was played for the jury. Appellant was convicted on all charges.
Appellant again represented himself during the penalty hearing, asking the jury to consider his character and the circumstances surrounding the crime, 42 Pa.C.S. § 9711(e)(8), and his allegedly minor criminal record, id., § 9711(e)(1). Appellant argued he was not a violent person and made repeated attacks on the character of the victim, i.e., the victim was armed, a neglectful parent, and a notorious drug dealer. The Commonwealth offered the jury two aggravating circumstances, namely, appellant’s history of violent felonies, id, § 9711(d)(9), and that appellant committed the murder while in the course of a felony, id, § 9711(d)(6). The jury found the Commonwealth proved both aggravating circumstances, and rejected all appellant’s proposed mitigating evidence; appellant was sentenced to death.
Reordered, but taken verbatim from his brief, these issues are raised by appellant:
Did the trial court err in denying appellant’s Motion to Dismiss under former Rule 1100 and the Interstate Agreement on Detainers where trial commenced approximately five (5) years after appellant was charged and over 180 days after his request for final disposition of the charges pending against him, where appellant was in custody the entire time and where appellant was available to the Commonwealth had its agents promptly instituted the proper procedures to secure his presence?
Jury Selection:
Was appellant denied due process and a fair penalty phase under both the state and federal constitutions when the trial prosecutor repeatedly misled every venireperson, including those who ultimately comprised the petit jury, regarding the “mandatory” nature of the death sentence (contrary to 25 years of United States Supreme Court precedent) where the trial court did not correct these errors and in fact compounded them and the trial prosecutor repeated them in her penalty phase closing argument?
Guilt Phase:
Did the trial court err in admitting the testimony of Corporal Regina Stafford, who was sent in to appellant’s jail during the pre-trial stage by pretending to be a civilian witness out to help appellant in order to obtain incriminating statements from appellant, in the absence of Miranda [v. Arizona,
Was appellant denied his state and federal rights to due process when the Commonwealth violated the trial court’s ruling limiting the admissibility of “other crimes” evidence to two (2) relevant crimes and proceeded to introduce overwhelming evidence of appellant’s alleged participation in several additional violent felonies completely unrelated to this case, and where the trial court failed to issue cautionary instructions (assuming the evidence was admissible for a limited purpose)?
Did the trial prosecutor deliberately mislead the 'jury in violation of appellant’s state and federal due process rights when she repeatedly stated that all of appellant’s co-conspirators “were not murderers” when, even under the Commonwealth’s theory of prosecution and the co-conspirators’ version of their own involvement, they were fully guilty of second-degree murder having participated in a killing that occurred during a robbery, where such a mischaracterization necessarily created the erroneous impression that the co-conspirators-turned-Commonwealth witnesses were not receiving as a benefit for their cooperation immunity from prosecution for murder when in truth they were?
Did the trial prosecutor improperly vouch for the credibility of her witnesses in violation of appellant’s state and federal due process rights when she incessantly introduced evidence that the plea agreement of each witness required him “to tell the truth,” thereby placing the official imprimatur and force and weight of the state behind the testimony of each witness?
Did the Commonwealth fail to disclose all of the benefits it provided its career criminal witnesses in violation of appellant’s state and federal due process rights and the rule of Brady v. Maryland [,
Did the trial court err in failing to instruct the jury on accomplice liability as to first degree murder where part of appellant’s defense was that co-conspirator Curtis French was the actual shooter?
Did the trial prosecutor commit misconduct and thereby deprive appellant of a fair trial and due process when she (a) exhorted the jury to disregard its obligation to apply the law by erroneously instructing it that “this case is not about the law; if you find it’s him, it’s murder one” when the facts were at least equally consistent that this was second-degree murder; (b) deliberately misled the jury into believing that her career criminal witnesses did not receive “deals” in state court for their testimony when in fact each witness was granted immunity from prosecution on this murder, two of her witnesses were granted immunity from prosecution on somewhere between 20-60 other robberies and one witness was granted immunity from prosecution on perjury and obstruction of justice charges for lying to the grand jury in this matter; and (c) mischaracterized the applicable law by instructing the jury that the “deals” her -witnesses received were “not relevant” to its decision-making when the law provides that such evidence is highly relevant?
Is appellant competent to represent himself on this appeal, was appellant incompetent to represent himself at trial and did the trial court err in denying appellant funds to retain the expert witnesses necessary to establish his incompetence?
Penalty Phase:
Was appellant denied his state and federal rights to due process when the Commonwealth introduced at the penalty phase evidence of appellant’s (a) alleged participation in unrelated robberies for which he was never convicted and (b) status as a parole violator, where such evidence amounts to inadmissible non-statutory aggravation?
Was appellant denied his state and federal rights to due process when the jury at the penalty phase was permitted to consider “other crimes” and “bad acts” evidence previously introduced at the guilt phase, where such evidence amounts to inadmissible non-statutory aggravation?
Was appellant denied the protections of the state and federal privilege against self-incrimination and due process clause when the prosecutor expressly commented on appellant’s failure to express remorse, in violation of the rule of Griffin v. California [,
Did the trial court err in failing to instruct the jury that in order for it to consider the aggravating circumstance that appellant “committed a killing” in the perpetration of a felony, it must unanimously agree that appellant was the actual killer, an issue not necessarily foreclosed by its guilty-phase verdict?
Was appellant’s April, 2000 waiver of counsel sufficiently valid to apply to the September 2001 penalty phase proceedings where (1) the colloquy to determinе whether the waiver was valid was completely deficient as to capital sentencing issues rendering the waiver unknowing and (2) the earlier waiver, assuming it was valid at some point, expired at the conclusion of the guilt phase six weeks earlier or at some earlier point?
Was the evidence insufficient as a matter of law to make out the aggravating circumstance of “prior felony convictions” under 42 Pa.C.S. § 9711(d)(9) where there exists no evidence in the record to show that appellant’s prior convictions were in fact “felonies”?
Did the cumulative effect of some or all of the errors raised herein deprive appellant of a fair trial and due process?
Although appellant does not challenge the sufficiency of the evidence underlying his first degree murder conviction, in all capital cases, we self-impose such a duty and review the evidence supporting the conviction. Commonwealth v. Zettlemoyer,
First degree murder is a criminal homicide committed by an intentional killing. 18 Pa.C.S. § 2502(a). To sustain a first degree murder conviction, the evidence must establish: (1) a human being was unlawfully killed; (2) the defendant did the killing; and (3) the killing was committed in a willful, deliberate, and premeditated way. Id,., § 2502(a), (d); Commonwealth v. Malloy,
The evidence admitted at trial established that appellant and his cohorts attempted numerous times to locate White in order to rob him; appellant brought along an automatic weapon to effectuate the robbery and for any contingencies. When the three men found White, appellant approached him and demanded money and entrance into his apartment. The evidence shows that White pled with appellant not to enter his apartment and endanger his sleeping children. For not following his demands, appellant shot White once in the thigh and twice in the chest, killing him. These actions, coupled with appellant’s boastful admission minutes after the killing that he “wetted [White] lovely” are sufficient to sustain appellant’s first degree murder conviction.
As his own counsel, and admittedly unversed in trial and appellate advocacy, appellant failed at trial to object to almost all instances of error he now alleges. Normally, this would be fatal to his claims because pro se defendants are held to the same standards as licensed attorneys. Electing to proceed pro se does not excuse issue preservation, see Commonwealth v. Bryant,
In Commonwealth v. Davis,
Here, the trial court found appellant was unavailable while in federal custody for IAD and speedy trial rule purposes, and with delays specifically attributed to him and court procedures beyond the Commonwealth’s control, appellant’s motion to dismiss had no merit. The court reasoned:
Thus, the entire period from February 4, 1999 [the date appellant filed his IAD notice with Lehigh County authorities that he would not contest transportation there], was beyond the control of the prosecutor, who exercised due diligence within that period to obtain [appellant]. In other words, for purposes of Rule [600], only 140 days have elapsed toward the Rule [600] rúndate.
Trial Court Opinion, 3/26/01, at 14 (citation omitted). This assessment is supported by the record, and appellant’s attempt at dismissal was properly rejected.
Appellant alleges the jury pool was corrupted during voir dire and again during the prosecutor’s closing statement to the jury, because the court suggested, and permitted the Commonwealth to argue, that in certain circumstances, the death penalty is mandatory. Appellant highlights the following instructions during voir dire:
The Court: What we are here to do is — The law in this Commonwealth recognizes the death penalty, and in certain cases, mandates its imposition.
The Court: Okay, and do you also understand that the Lеgislature has also said that in certain circumstances, the death penalty is required?
N.T. Voir Dire, 7/10/01, at 241, 451. Additionally, the prosecutor in her penalty phase closing argument stated: “As I told you during voir dire, this point might come where you may be faced with the law that says that in this instance, your sentence must be death.” N.T. Trial, 9/4/01, at 4312.
Appellant posits such death qualification directives leave jury members with the indelible belief that they are required to impose a death sentence, regardless of any reservations they may have concerning the evidence presented. Appellant’s argument is unavailing, because the prosecutor’s and trial court’s recitation of the law was correct, and each instruction was conditioned upon the jury’s findings and its balancing of aggravating and mitigating circumstances. N.T. Voir Dire, 7/10/01, at 227; N.T. Sentencing, 9/4/01, at 4309-4314, 4324-4331.
The General Assembly has ensured by statute that, in a capital case, the jury’s “verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in [42 Pa.C.S. § 9711](d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” 42 Pa.C.S. § 9711(c)(3)(iv) (emphasis added). This Court has interpreted this statute as mandatory upon a jury, and a juror who will not impose the death penalty when mandated may be removed for cause. See Commonwealth v. Morales,
Thus, the trial court was required to instruct the jury on the current state of death penalty jurisprudence in this Commonwealth and ensure that it would be followed; this was done. Further, a prosecutor is permitted, during voir dire, to “death qualify” a jury to ensure that it will uphold the prescribed law. See Lockhart v. McCree,
Appellant argues the trial court erred by permitting the Commonwealth to play the tape recording of his conversation with Trooper Stafford and allowing her to testily to appellant’s alibi-making scheme. Appellant alleges the conversation was unlawful because he was not given Miranda warnings, and the episode took place without the benefit of counsel; absent a valid waiver of counsel, post-indictment police interrogations are prohibited. See Massiah, at 205,
Although “[i]n all criminal prosecutions the accused hath a right to be heard by himself ...,” Pa. Const, art. 1, § 9, this Court has repeatedly admonished pro se advocacy in capital cases, and warned defendants that they will be held to the same level of knowledge and standards as those trained in the law. See Bryant, at 740 (“Appellant may not rely on his own lack of legal expertise as a ground for a new trial ....”) (citing Faretta v. California,
Appellant concedes he dismissed appointed counsel and, following multiple psychological examinations to prove his competency, appellant was permitted to proceed pro se on June 5, 2000, three months before the conversation. Appellant maintains, however, he was not advised his waiver of counsel would pertain to such scenarios as presented here; the pro se colloquy merely warned about pretrial preparations and trial advocacy. As
The trial court was correct in finding the Commonwealth was authorized to investigate appellant’s alibi fabrication scheme because it was a separate, independent crime from that for which he was currently incarcerated; appellant was attempting to tamper with a witness, 18 Pa.C.S. § 4909, offer a witness a bribe, id., § 4952(a)(l)-(6), and intimidate a witness, id., § 5105(a)(3)-(5). See Commonwealth v. Bomar,
Appellant alleges the Commonwealth solicited 15 different occasions of prior bad acts evidence merely to show appellant’s propensity for criminal conduct. Appellant concedes that most of these references, relating to numerous bank robberies, photos with his criminal cohorts, and drug dealer “stings,” would have been proper had the Commonwealth restricted its inquiries into connecting appellant to the murder weapon or if they were merely part of the natural development of this case. However, appellant posits that the Commonwealth used each opportunity to elaborate on his participation in some 50-60 armed robberies to sully his character in violation of Pa.R.E. 404(b).
Evidence is admissible if it is relevant — that is, “if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supрorts a reasonable inference or presumption regarding a material fact.” Commonwealth v. Stallworth,
In each occurrence cited by appellant, the testimony connected appellant either
During her closing, the prosecutor directed the jury to remember the testimony of appellant’s cohorts who were just feet away from appellant as he fired the fatal shots. The prosecutor stated each testified that the plan for White’s robbery was to be like all the others: one person would engage the victim, appellant would rob the victim and leave with the money, and they would meet up later to divide the proceeds. No victim was ever to be harmed. The prosecutor further argued that although these co-conspirators had extensive criminal backgrounds, they were nonetheless “not murderers”; as the triggerman, it was appellant who decided to break with the plan and murder White.
Appellant alleges the prosecution’s characterization of his cohorts misled the jury as to their true culpability — they were murderers. Each, appellant contends, is culpable of at least second degree murder, 18 Pa.C.S. § 2502(b), as a co-conspirator or accomplice, by virtue of participation in the attempted robbery of White which resulted in his death. See id., § 306 (accomplice liability); id., § 903 (criminal conspiracy liability); Commonwealth v. Lambert,
Each testifying co-conspirator admitted his involvement in White’s murder, and revealed he was serving a lengthy sentence for unrelated robberies. Although Peterson and French were not charged with any crimes relating to White’s murder, each testified to this fact on direct examination. N.T. Trial, 7/20/01, at 1871; id., 7/23/01, at 2297. Logan and Avila were both charged with crimes related to White’s murder, and testified to the plea agreements they had with the prosecution for their participation and cooperation in appellant’s trial. Id., 7/25/01, at 2624-25; id., 7/26/01, at 2903. In addition, appellant explored each witness’s plea agreement during cross-examination. See Commonwealth v. Rickabaugh,
Next, appellant argues the prosecutor improperly vouched for each testifying cohort’s credibility by stating, according to their federal plea agreements,
In United States v. DiLoreto,
And you also heard that they [governmental witnesses] have a plea bargain, and you heard what happened when that plea bargain is not fulfilled. If they lie, that bargain is off. That’s it, no bargain. We don’t take liars. We don’t put liars on the stand. We don’t do that.
DiLoreto, at 998 (emphasis in original). The court reasoned this mode of argument implied that the prosecution had additional facts the jury may not be privy to, “which convinced the prosecutor that his witnesses were not liars.” Id. This perceived personal reinforcement “clearly jeopardized the defendants’ right to be tried solely on the basis of the evidence presented at trial.” Id., at 1000.
In Tann, this Court awarded a defendant a new trial because the prosecutor was permitted to call to the stand a co-conspirator’s counsel, who testified that his client was waiving his Fifth Amendment right to remain silent so that the client could testify “truthfully.” Tann, at 327. Counsel further detailed how the plea agreement with the Commonwealth would be nullified if his client did not testify truthfully. This Court determined counsel’s testimony regarding the plea agreement, which highlighted the fact that the witness was waiving his right to remain silent, coupled with counsel’s statement that his client would “tell the truth,” improperly vouched for the co-conspirator’s credibility. Id., at 327-28.
No such secondary or personal bolstering took place during appellant’s trial. Each testifying witness, as required under Brady v. Maryland,
Further, appellant lambasted each witness on the terms of his plea agreement, and called for the jury to consider each witness’s motivations for testifying against him. Appellant introduced this testimony during cross-examination, going so far as to use an overhead projector to highlight and summarize statements to attempt to
The prosecutor’s reference to Logan’s sentencing transcript during her closing argument could more plausibly be viewed as improper vouching. The prosecutor stated, “And what does the Judge say? I commend you [Logan] for that. You [Logan] still came in here and told the truth even after you [Logan] were beaten. That’s the Judge in the Federal trial.” N.T. Trial, 7/31/01, at 4007.
The Third Circuit has indicated that once defense counsel’s argument is rebutted concerning the credibility of a government witness, the prosecutor’s references to the witness’s credibility should end. Walker, at 187. If a prosecutor proceeds further and starts arguing in the affirmative that the witness is credible, and does so based on either information not in the record or his own knowledge, then the prosecutor has engaged in improper bolstering. Id.
It is well settled that statements made by the prosecutor to the jury during closing argument will not form the basis for granting a new trial “unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Fletcher,
We do not read Walker so strictly as to prevent a prosecutor from ever mentioning the credibility of a government witness in a closing argument after rebutting that argument in the evidentiary portion of a trial. To read Walker that way would eliminate an inquiry into Walker’s second requirement, that the vouching be based on either information not in the record or part of his own knowledge. Finally, reading Walker strictly would conflict with settled state precedent that a prosecutor has reasonable latitude in presenting a closing argument and may make comments based on the evidence or derived from proper inferences. See Williams, supra; Chester, supra. The prosecutor’s statement here could be seen as an effort to entreat the jurors to believe Logan’s testimony based on the federal judge’s assessment of his credibility, arguably constituting improper bolstering. However, the prosecutor was not personally assuring the jury that Logan’s testimony was credible; she only referenced the federal judge’s comments. Further, since appellant introduced the federal plea agreements into evidence, the prosecutor was not bolstering Logan’s credibility based on information not in evidence.
Appellant posits the prosecutor committed misconduct during her closing by saying: “This really isn’t a case about the law, ladies and gentlemen, because if you find it’s him, and he did this, it’s murder one.” N.T. Trial, 7/31/01, at 3991. Appellant contends a new trial is warranted because the jury could have found he did not have the requisite mens rea for first degree murder, and it could have convicted him of second degree murder. Appellant alleges thе prosecutor misrepresented the law by attempting to channel the jury into believing that only first degree murder was available.
Here, the prosecutor presented evidence that during the robbery attempt, appellant intentionally shot White three times for White’s failure to adhere to his demands. The prosecutor argued that if the'jury accepted these facts, appellant was guilty of first degree murder. The closing statement requesting first degree murder did not mislead the jury, as it was based upon the evidence. Taken in context, it did not preclude the jury from rendering a true verdict. However, we strongly disapprove of advocating a case is “not about the law.” Advocacy in this vein may, in some circumstances, adversely affect the adjudicatory process and potentially undermine the confidence in a verdict.
Appellant maintains his due process and Brady rights were violated when the prosecutor failed to inform the jury, or elicit from each testifying co-conspirator, that each was immune from prosecution for any charges related to White’s robbery and murder; “[t]he prosecutor’s lies here violate her duty to refrain from presenting testimony or information she knows to be false or misleading and that is harmful to the defendant.” Appellant’s Brief, at 67. Appellant contends that although no plea agreement was memorialized in writing, these “unspoken deals” meant cooperation would result in no charges being filed against a testifying co-conspirator. Declarations of each co-conspirators’ counsel attached to appellant’s brief attest that no subsequent charges were in fact filed.
The record shows that two of the four co-conspirators testified they faced charges relating to White’s murder and, although the prosecution decided not to pursue additional or original charges against the other two offenders, the district attorney was the sole arbiter of this decision. See Commonwealth v. Stipetich,
Appellant claims he was not competent during his trial, nor should he be deemed competent now on appeal. Since the time appellant decided to defend himself, appellant and his court-appointed standby counsel have been waging a war for stewardship over his defense; counsel claimed appellant was incompetent to maintain his own defense, and demanded a competency hearing. Before allowing appellant to proceed pro se, the trial court ordered appellant to be evaluated by two psychological experts; both testified appellant was competent. It was only after being sentenced to death that appellant had a change of heart and permitted standby counsel to seek a new competency determination.
Appellant’s request for funds to retain a psychological expert and a new competency hearing were denied by the trial court January 31, 2003. The court found appellant’s belated request was result-driven, commenting:
[I]t is nevertheless apparent that [appellant] proffers no convincing argument or evidence to compel the Court to revisit its determination that [appellant] was competent to waive the right to counsel. Although at this hour he would attempt to impugn the independent expert reports relied upon by the trial court in its determination ... nothing suggests any deficiency in the information which the Court took into account.
Trial Court Order, 1/31/03. Following this reasoning, this Court denied this same request April 29, 2003. We see no basis to reverse this determination.
Appellant’s next cluster of claims revolves around events which transpired at his penalty phase hearing. Initially, appellant contends the Commonwealth violated his federal and state due process rights by incorporating “other crimes” evidence from the guilt phase of his trial to the penalty phase. See N.T. Trial, 9/4/01, at 4190. Specifically, appellant points to testimony from his co-conspirators and police detectives wherein each described numerous robberies and parole violations appellant committed; appellant was not charged with these crimes, and he believes the jury was permitted to infer his propensity to commit criminal acts in deciding whether he had a significant history of felony convictions. 42 Pa.C.S. § 9711(d)(9).
As discussed previously, appellant’s “other crimes” evidence admitted during the guilt phase of his trial was properly admitted under the res gestae exception to Pa.R.E. 404, or was brought in by appellant opening the door to such evidence via his inquiries during cross-examination. The Commonwealth did not err by incorporating this evidence into the penalty phase because the same jurors had already heard this testimony previously; “[a]ppellant’s guilt had already been determined, and the incorporation of this evidence
Appellant claims his rights against self-incrimination and due process were violated when the prosecutor stated in her penalty phase closing statement: “Mr. Williams has expressed no remorse. You know who he is. You know him to be cold. You know him to be a murderer.” N.T. Trial, 9/4/01, at 4313. Appellant argues this comment referenced his failure to testify, in violation of Griffin v. California,
In Griffin, the United States Supreme Court admonished a prosecutor for stating during his closing: “These things he has not seen fit to take the stand and deny or explain. And in the whole world, if anybody would know, this defendant would know. [Victim] is dead, she can’t tell you her side of the story. The defendant won’t.” Griffin, at 611,
Relying on Griffin, the Third Circuit in Lesko ordered a new death penalty hearing because the prosecutor made an impermissible “appeal to vengeance” during his penalty phase closing, and in response to the defendant’s mitigation testimony, argued the defendant failed to show remorse. The Court held “that both remarks were improper. Considered cumulatively, the errors in the prosecutor’s penalty phase argument were not harmless....” Lesko, at 1541. Unlike Griffin or Lesko, however, the prosecutor’s isolated reference in appellant’s penalty phase closing was not continual or companioned with additional error, and was not directed at appellant’s silence, but his lack of remorse. See Commonwealth v. Rivera,
At the penalty phase of trial, where the presumption of innocence is no longer applicаble, the Commonwealth is permitted to employ oratorical flair and impassioned argument for the death sentence. See Commonwealth v. Baker,
Appellant argues the trial court erred in failing to charge the jury that it could not find aggravating circumstance 42 Pa.C.S. § 9711(d)(6) (killing committed in perpetration of felony), unless it found appellant was the actual shooter. Since this was his version of events, appellant contends the jury could have believed he was merely an accomplice, and this aggravator would not apply to him. See Commonwealth v. Lassiter,
All three co-conspirators testified appellant was the trigger-man, and the Commonwealth’s entire case was built on this fact; appellant confessed to Peterson that he in fact shot White. The guilt phase jury charge presented the jury with the only option the verdict allowed — appellant was guilty of first degree murder as the principal. After the jury found appellant guilty of first degree murder as the shooter, the Commonwealth properly sought the § 9711(d)(6) aggravator. In addition, although appellant can rely upon relaxed waiver to avoid waiver of this issue, Freeman, at 403, we would be hard pressed to fault a trial court for failing to give a jury instruction not requested by either party, and which was not consistent with any evidence presented at trial. See Commonwealth v. Cuevas,
Appellant claims his initial waiver of counsel рrior to trial was insufficient to carry over to the penalty phase. Appellant’s contention is that his initial waiver did not apprise him of the gravity of the penalty phase, and the court should have sua sponte held another waiver colloquy to ensure appellant intended to continue self-representation. This position is meritless. Appellant was asked whether he wanted to continue self-representation or if he wished for standby counsel to take over prior to commencement of the penalty phase. He initially stated counsel would conduct the hearing, but later reneged and refused to permit counsel to advocate. See N.T. Trial, 9/4/01, at 4175. Further, appellant was repeatedly advised by the court and standby counsel what evidence was germane to the penalty phase; the fact that he chose to ignore such guidance does not entitle him to relief.
Appellant maintains the Commonwealth failed to prove, beyond a reasonable doubt, that he had a significant history of felony convictions involving the use or threat of violence. 42 Pa.C.S. § 9711(d)(9). Appellant posits that although the Commonwealth introduced into evidence his three armed robbery convictions, it failed to prove these convictions
Appellant alleges he should have been permitted to argue, as mitigating evidence, the unfairness of subjecting him to the death penalty when his equally-culpable co-conspirators received lenient treatment. Relying on Lockett v. Ohio,
Capital phase mitigating evidence is limited to those criterion enumerated in 42 Pa.C.S. § 9711(e); a cohort’s ultimate criminal punishment is not among those established by the General Assembly. The phrase “the circumstances of the particular offense” refers to mental states and surrounding events leading up to the criminal act — not what punishment will be imposed later. This Court has routinely rejected the argument that the criminal disposition of a defendant’s cohorts has any relevance in mitigation to a defendant’s own punishment. See Commonwealth v. Haag,
In Commonwealth v. Lopez,
There is no mitigating circumstance which provides for the type of comparison appellant suggests; even the “catch-all” mitigation circumstance [42 Pa.C.S. § 9711(e)(8)] would not encompass evidence of co-conspirators’ sentences because such evidence has nothing to do with “the character and record of the defendant” or “the circumstances of his offense.”
Id., at 471 (citation omitted).
Appellant’s last issue is that the cumulative effect of all the alleged errors
Finally, having concluded appellant is not entitled to relief on any of the claims that he raises, we must also conduct the review mandated by 42 Pa.C.S. § 9711(h)(3), which requires this Court to affirm the sentence of death unless we determine:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; or
(ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d).
42 Pa.C.S. § 9711(h)(8).
Our review of the record establishes the sentence imposed was not the product of passion, prejudice, or any other arbitrary factor. Additionally, we conclude the evidence presented was sufficient to support the jury’s finding of two aggravating circumstances: (1) appellant had a history of violent felonies, id., § 9711(d)(9), and (2) appellant committed the murder while in the course of a felony (robbery), id., § 9711(d)(6). Accordingly, we affirm the verdict and the sentence of death.
Appellant’s judgment of sentence is affirmed.
Notes
. All aliases mentioned are the names by which the circle of friends were known in their neighborhoods; each testified at trial using the aliases cited.
. 18 Pa.C.S. § 2502(a); id., § 3701(a)(1) (inflicting serious bodily injury); id., § 903(a)(1) and (2), respectively.
. It deserves repeating the often-cited maxim: "the number of claims raised in ail appeal is usually in inverse proportion to their merit....” Commonwealth v. Ellis,
. Former Rule 1100 provided, in pertinent part: "Trial in a court case in which a written complaint is filed against the defendant, when the defendant is incarcerated on that case, shall commence no later than 180 days from the date on which the complaint is filed." Pa.R.Crim.P. 1100 (renumbered Pa.R.Crim.P. 600).
. The IAD is an agreement between 48 states, the District of Columbia, Puerto Rico, and the Virgin Islands that establishes procedures for the transfer of prisoners incarcerated in one jurisdiction to the temporary custody of another jurisdiction which has lodged a detainer against them. Unlike a request for extradition, which is a request that the state in which the prisoner is incarcerated transfer custody to the requesting state, a detainer is merely a means of informing the custodial jurisdiction that there are outstanding charges pending in another jurisdiction and a request to hold the prisoner for the requesting state or notify the requesting state of the prisoner’s imminent release.
Article IV of the IAD provides the procedure by which the prosecutor in the requesting state initiates the transfer:
(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated....
(c) In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state....
42 Pa.C.S. § 9101, Article IV(a), (c). If the requesting state returns the prisoner to the transferring state without having tried him, or should the 120 days pass without a trial, all charges against the prisoner will be dismissed with prejudice, absent good cause shown. See Commonwealth v. Merlo,
. We recently stated that "evidence is only admissible where the probative value of the evidence outweighs its prejudicial impact." Commonwealth v. Treiber,
. Notably, many aggravating circumstances are expressed in a single phrase and in fairly straightforward terms, see 42 Pa.C.S. § 9711(d), and, accordingly, are not readily considered in terms of component elements.
. The Prothonotary is directed to transmit the complete record of this case to the Governor, pursuant to 42 Pa.C.S. § 971 l(i).
Concurrence Opinion
concurring.
I join the majority opinion, except for its analysis of the claim that Appellant brought under the Interstate Agreement on Detainers Act (“IADA” or “Act”), 42 Pa.C.S. § 9101. I write separately to set forth my reasoning for affirming the trial court’s decision to deny Appellant relief under the IADA. More specifically, I believe that the trial court correctly determined that because Appellant did not demonstrate that he strictly complied with the IADA’s procedural requirements, its 180-day time limit for bringing him to trial did not commence, and the Act was not violated.
By way of background, the IADA is a congressionally sanctioned interstate compact within the Compact Clause of the United States Constitution, U.S. Const. Art. I, § 10, cl. 3, and therefore, is a federal law, subject to federal construction. Cuyler v. Adams,
The Act establishes procedures by which one state (the “Receiving state”) obtains temporary custody from another state of a prisoner (the “Sending state”) against whom a detainer was lodged in order to bring him to trial on a pending indictment, information, or complaint. Art. II; Cuyler,
In this regard, Article 111(a) sets forth certain actions for a prisoner to complete in order to invoke the Act’s protection. Article 111(a) provides:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate comí of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: ... The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
Art. 111(a) (emphasis added). In addition, under Article III, “[i'Jf trial is not had on any indictment, information, or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information, or complaint shall not have any further force or effect and the court shall enter an order dismissing the same with prejudice.” Art. 111(d).
The courts, both state and lower federal, have addressed what steps a prisoner must take in order to trigger Article Ill’s 180-day time period. Many of these courts have held that the period is not triggered unless a prisoner strictly complies with Article Ill’s procedural requirements and has caused to be delivered to the prosecutor and the appropriate court the materials and information that it sets forth.
In considering the merits of the strict compliance approach, I find decisions of the United States Supreme Court in the area instructive. For example, in Fex v. Michigan,
In light of this guidance, I too conclude that under the IADA, a prisoner must demonstrate that he met all of the procedural requirements that Article III imposes upon him in order for the Act’s 180-day time period to be triggered. This adheres to the text of Article III, which is cast in absolute terms, and follows the Supreme Court’s jurisprudence, which hews to the IADA’s literal language in construing the Act’s provisions. Fex; Carchman, supra, at pp. 4-5; See Alabama v. Bozeman,
My review of the record reveals that Appellant did not show when, if ever, he caused to be delivered to the prosecuting officer and the Court of Common Pleas of Lehigh County the written notice of the place of his imprisonment, request for a final disposition of the charges brought against him, or the certificate that Article III requires. Therefore, I conclude that Appellant failed to meet his burden of proving compliance with Article Ill’s procedural requirements; that Article Ill’s 180-day time limit was not triggered; and that the Act was not violated in the present case.
. In this regard, I disagree with the majority and Mr. Justice Baer in his dissenting opinion that the trial court addressed and resolved the substance of Appellant's IADA claim. In my view, the trial court's decision that Appellant was brought to trial in a timely fashion was rendered only under Pennsylvania’s prompt trial provision at Pa. R.Crim.P. 600 (formerly Pa.R.Crim.P. 1100).
. I note that in connection with Appellant’s IADA claim, the trial court also stated that Appellant was not seeking relief under the IADA, and that the parties had agreed that Appellant's rights to a speedy trial would be considered under the standards set forth in Pa.R.Crim.P. 1100. These statements are not supported by the record. The record reveals no such agreement and shows that Appellant raised, and argued, and never abandoned his IADA claim.
. The majority appears to believe that analysis of Appellant's claim under Pa.R.C.P. 600 suffices as analysis of his IADA claim. In light of these principles, I disagree.
. The other procedure is found in Article IV and is initiated by a prosecuting officer in the Receiving state. Even though it was Appellant who purported to invoke the Act under Article III, the majority appears to be under the mistaken impression that this is an Article IV case.
. See. e.g., United States v. Dent,
. I also conclude that in light of the Act’s language and legislative history and relevant case law, there is no room for Mr. Justice Baer's determination that Article Ill's time period was triggered in this case because neither the trial court nor the Commonwealth asserts that “the notice” that Appellant gave regarding his desire to proceed under the IADA "failed in any way relevant to its purpose of notifying the Commonwealth of [his] desire to return to Pennsylvania to defend his outstanding charges.” (Dissenting Opinion, Baer, J. at
Because I conclude that Article Ill's time limit did not commence to run in the first instance, I do not consider the meaning of the IADA’s tolling provision in Article VI, as has Mr. Justice Baer in his dissent.
. There is a memorandum that Appellant filed in the trial court in July 2001 entitled "Exigent Appeal” and directed to this Court’s attention. ■ The trial court viewed the memorandum to be an interlocutory appeal that was improperly submitted to it and forwarded the document to this Court for purposes of the present appeal. Attached to the memorandum are copies of documents that appear to be IADA forms. Because Appellant submitted these documents for the first time on appeal, I have not considered them nor should this Court consider them. See Pa.R.A.P.1921; Commonwealth v. Young,
Dissenting Opinion
dissenting.
Although the law often provides room for the courts to' forgive procedural missteps, in some cases it affirmatively denies such discretion. The Interstate Agreement on Detainers Act (IADA or Act),
Before addressing the legal concerns animating my dissent, however, it is necessary to visit the procedural history of this case. On October 18, 1996, the Commonwealth filed a written complaint in the Court of Common Pleas of Lehigh County charging Appellant with criminal homicide, robbery, and criminal conspiracy. As of October 21, 1996, however, Appellant was in the custody of federal authorities pending disposition of federal charges associated with a bank robbery unrelated to the Pennsylvania charges. Upon conviction in federal court, Appellant was transferred to a federal correctional facility in Schuylkill, Pennsylvania. Following various preliminary matters, Appellant appeared, by leave of a United States Attorney, for his preliminary hearing on the charges pending in Pennsylvania. There, he waived arraignment and pleaded not guilty to all charges.
In January 1997, Appellant was sentenced by the federal court to approximately fifty-seven years in prison. He then was remitted to the federal prison at Lewisburg, Pennsylvania. The court of common pleas, meanwhile, listed a hearing and a pre-trial conference concerning Appellant’s Pennsylvania charges, and set a trial date of September 8, 1997. In March of 1997, however, the federal Bureau of Prisons determined that Appellant should serve his federal sentence at its facility in Florence Colorado (USP Florence); Appellant arrived at USP Florence on March 5, 1997. On June 6, 1997, Lehigh County lodged a detainer against Appellant, signaling Pennsylvania’s intent to try Appellant on his outstanding charges.
Appellant, however, also faced unrelated homicide charges in New Jersey, which took precedence over the Pennsylvania charges. Federal authorities transported Appellant to New Jersey for trial on July 15, 1997. Following trial in New Jersey, Appellant returned to federal custody, arriving at USP Florence on February 4,1999.
Almost immediately upon his return to Florence, Appellant prepared a petition under Article III of the IADA seeking disposition of the charges in Pennsylvania that were the subject of the Lehigh County detainer.
In the months that followed, the Commonwealth’s efforts to secure Appellant’s presence for trial met only confusion and resistance. The principal disputes appear to have revolved around whether, where
On August 13, 1999, while Lehigh County continued to pursue Appellant’s transfer from federal custody for trial, the court of common pleas entered an order scheduling trial for September 27, 1999. On September 2, 1999, Appellant filed a motion seeking to continue the trial. On September 15, 1999, Appellant filed a motion to dismiss, the gravamen of which was his assertion that the Commonwealth had violated his right to a speedy trial. In September 1999, Appellant remained in federal custody. He did not arrive in Lehigh County until October 4,1999.
On October 14, 1999, the trial court convened a hearing regarding Appellant’s pre-trial motions. This hearing was followed by additional hearings in November 1999, and in February 2000. In February 2000, Appellant notified the court that he wished to waive his right to counsel and proceed pro se. On June 5, 2000, following an April 2000 hearing, Appellant’s request was granted. On the same date, the trial court also granted Appellant’s request for further hearing on his motion to dismiss. Hearings were scheduled and rescheduled, and on two separate occasions in October hearings were convened for Appellant to present witness testimony in support of his motion. On November 29, 2000, while Appellant’s motion to dismiss was still pending, Appellant, in response to court order, filed a letter brief arguing that the IADA required dismissal. On December 1, 2000, the trial court conducted a final hearing. On March 26, 2001, with Appellant’s arguments under Pa.R.Crim.P. 1100 (“Prompt Trial”) and the IADA before it, the trial court denied Appellant’s motion. Although the dispositive order referred only to Rule 1100, the trial court addressed and ultimately rejected Appellant’s IADA arguments. It is the trial court’s erroneous treatment of these arguments, and the Majority’s quiet ratification of the trial court’s reasoning, that compels me to write.
The IADA is
a compact entered into by 48 States, the United States, and the District of Columbia to establish procedures for resolution of one State’s outstanding charges against a prisoner of another State. As a congressionally sanctioned interstate compact within the Compact Clause of the United States Constitution, Art. I, § 10, cl. 3, the [IADA] is a federal law subject to federal construction.
A State seeking to bring charges against a prisoner in another State’s custody begins the process by filing a detainer, which is a request by the State’s criminal justice agency that the institution in which the prisoner is housed hold the prisoner for the agency or notify the agency when release is imminent. After a detainer has been lodged against him, a prisoner may file a “request for a final disposition to be made of the indictment, information, or complaint.” Art. 111(a). Upon such a request, the prisoner “shall be brought to trial within one hundred eighty days,” provided that for good cause shown in open court, the prisoneror his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. * * * If a defendant is not brought to trial within the applicable statutory period, the [IADA] requires that the indictment be dismissed with prejudice. Art. V(c).
New York v. Hill,
[A] prisoner who has a detainer lodged against him is seriously disadvantaged by such action. He is in custody and therefore in no position to seek witnesses or tо preserve his defense. He must often be kept in close custody and is ineligible for desirable work assignments. What is more, when detainers are filed against a prisoner he sometimes loses interest in institutional opportunities because he must serve his sentence without knowing what additional sentences may lie before him, or when, if ever, he will be in a position to employ the education and skills he may be developing.
Id. at 449,
Article III of the IADA permits a prisoner to seek a temporary transfer to the jurisdiction that has filed a detainer for final disposition of outstanding charges in the transferee jurisdiction. A prisoner utilizing Article III must transmit his request to the prosecutor and the court in the detaining jurisdiction. See IADA Art. 111(a). Receipt of these materials triggers the running of a 180-day clock that counts down the period during which the prosecution must commence its case. See Fisher,
The IADA explicitly permits a court to toll the clock and specifies the means at the parties’ and the courts’ disposal to seek such a remedy. Specifically, the statute envisages a trial court’s grant of a continuance “for good cause shown in open court, the prisoner or his counsel being present.”
Even if federal law were not sufficiently instructive, our own caselaw demonstrates the flaw in any analysis that upholds Appellant’s conviction and sentence in the instant case. In Commonwealth v. Fisher,
On appeal, this Court explicitly rejected the Commonwealth’s argument that scheduling conflicts precluded its bringing defendant to trial within the prescribed time limit. Id. at 607. Further, we rejected the prosecution’s reliance on a New Jersey case that permitted “the grant of any necessary or reasonable continuance at any time prior to an actual entry of an order dismissing the indictment.” Id. (citing State v. Lippolis, 55 N.J. 854,
Our decision in Fisher, moreover, followed earlier decisions of this Court under the IADA’s predecessor statute. In Commonwealth v. Bell,
In the case at bar, the trial court, in a footnote, stated that “the IAD was not violated here.” Although a Pennsylvania official had a copy of Appellant’s IADA request on February 17, 1999, it contended, Appellant failed to demonstrate
that he complied strictly with the requirements of the IAD to invoke the 180 day time limit, see U.S. v. Dent,149 F.3d 180 (3d Cir.1998); Commonwealth v. Lloyd,370 Pa.Super. 65 ,535 A.2d 1152 (1988), and is not seeking relief pursuant to the IAD. As further discussed infra, Pennsylvania’s IAD coordinator never requested custody of Defendant.
Tr. Ct. Op., 3/26/01, at 6 n. 5. These cases, however аre distinguishable. Dent, for example, was not decided under the IADA. Furthermore, the defendant in Dent had delayed his trial through affirmative conduct (flight) entirely absent from the instant case. In Lloyd, the defendant filed
Neither the trial court nor the Commonwealth asserts that notice failed in any way relevant to its purpose of notifying the Commonwealth of Appellant’s desire to return to Pennsylvania to defend his outstanding criminal charges. Indeed, the Commonwealth testified that upon receiving Appellant’s Article III notice a Lehigh County law enforcement officer called an IADA administrator to address the situation.
Considering its conviction that the IADA was neither properly invoked nor
The trial court sets forth dates that require dismissal notwithstanding any degree of prosecutorial diligence and federal obstruction. The trial court recognizes that Appellant’s availability under the IADA commenced upon his return to USP Florence' from New Jersey on February 4, 1999. In August 1999, trial was scheduled for mid-September. On September 2, 1999, Appellant sought a continuance to prepare his defense. Two hundred and ten days separate February 4, 1999, from September 2, 1999. If we identify as the start date February 18, 1999, when the Commonwealth acknowledged (and corroborated by conduct) its receipt of Appellant’s IADA notice, the relevant span shrinks to 196 days; the one hundred eightieth day after February 18, 1999, fell on August 16, 1999.
The Majority, summarily acknowledging the gravamen of Appellant’s argument, impugns his failure to recognize that “a trial court has the discretion to extend the deadline or exclude days ‘for good cause shown.’ ” Maj. Op. at
The Majority’s citation to Montione, however, is unavailing. In its parenthetical, the Majority summarizes Montione as follows: “IAD ‘tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court....’” Maj. Op. at
The Majority’s discussion omits to harmonize its reading of Montione with the holdings of this Court in Fisher, the United States Supreme Court in Hill and Mauro, and numerous other federal and Pennsylvania courts, which unwaveringly read “good cause shown” to require an affirmative request for continuance before the applicable IADA time limit has run. These cases consistently refuse to permit courts to justify delay based on a post hoc determination of good cause. Montione, moreover, does not contradict these holdings. The passage quoted by the Majority immediately follows language reaffirming the familiar construction of IADA Article IV to provide for a court-ordered continuance only upon good cause shown in open court. Montione,
Underlying the trial court’s ruling and the Majority’s endorsement of it is the evident desire to borrow permissive rulings under Pennsylvania’s “Prompt Trial” provision to mitigate the severe sanction demanded by the IADA where the failure timely to transfer a prisoner appears not to be a product of bad faith. This Court, hоwever, has rejected the proposition that analyses under Rule 1100 are coextensive with those under the IADA, notwithstanding areas where they overlap due to their related purposes. See Montione,
In this case, the Commonwealth does not dispute that it was on clear notice, effective no later than February 18, 1999, of Appellant’s desire to be returned to Pennsylvania to stand trial on outstanding criminal charges. Indeed, the record reflects that a law enforcement officer on Appellant’s case sought advice on February 18, 1999, from the Harrisburg IADA administrator, an obvious sign that the relevant authorities understood the import of Appellant’s request. Based on a notice date of February 18, 1999, the Commonwealth was obligated by the IADA to bring Appellant to trial by August 16, 1999, or alternatively to satisfy one of the recognized exceptions to the IADA’s time limits.
In Fisher, a case our predecessors on this Court wrote in language difficult to misconstrue, this Court held that
the Legislature adopted the dismissal sanction not because a prisoner would be prejudiced at trial if trial were delayed more than 180 days after demand, but because such a sanction for failure to try defendant within a fixed, reasonable period of time after demand was regarded as essential to produce general compliance with the statutory mandate.
. 42 Pa.C.S. § 9101.
. See Pa.R.Crim.P. 600 (formerly Pa.R.Crim.P. 1100; renumbered effective April 1, 2001). In the following opinion, I refer solely to Rule 1100, which applies to this case. The Rules, in any event, do not differ in any way material to the following analysis.
. Article III of the IADA provides, in relevant part:
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint. Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
42 Pa.C.S. § 9101.
. The trial court fully explicates the improbable difficulties encountered in seeking Appellant’s transfer to Pennsylvania for trial. Tr. Ct. Slip Op., 3/26/01, at 8-14. While I presume good faith on the part of all involved parties, that does not alter the legal impact of the delay.
. The statute then in effect, Act of June 28, 1957, P.L. 428, 19 P.S. § 881, ei seq., did not materially diverge at § 1(a) from Article 111(a) of the current IADA, both setting forth nearly verbatim the same procedure under which a prisoner may request final disposition of outstanding detainers, and providing that, upon receipt of such request, the Commonwealth has 180 days to bring defendant to trial. See Bell,
. Mr. Chief Justice Cappy, in his Concurring Opinion, reliеs upon the United States Court of Appeals for the Third Circuit’s decision in Dent, the United States Supreme Court’s decision in Fex v. Michigan,
Even if Mauro were not conclusive against the imposition of strict compliance against Appellant, w e are not presented with a case like Dent. In that case, the court ruled against the prisoner in part because his communications to prosecutors failed expressly to invoke the IADA. In this case, however, it is undisputed that the prosecutor recognized the gravamen of Appellant's request in the first instance. Indeed, as discussed at greater length infra, within days of its undisputed receipt of Appellant's request for disposition under the IADA Article III, the prosecution contacted Pennsylvania’s IADA coordinator, an act as unequivocаl in its connotation as the IADA is in its consequence. To require uniformly strict compliance is inconsistent with binding interpretations of the Act and manifestly contradicts the Act’s Article IX admonition that we must construe the Act liberally "to effectuate its purposes," one of which the Supreme Court has identified as the "protection] of prisoners against whom detainers are outstanding." Cuyler,
. In its opinion in support of its ruling rejecting Appellant’s motion to dismiss, the trial court claims that "Both parties agree the applicable standard in this case is Pa. R.Crim. P. No. 1100.” Tr. Ct. Op., 3/26/01, at 5 n. 6. This assertion is highly problematic in light of Appellant’s November 29, 2000 filing addressing itself solely to the claim that the IADA required dismissal of Appellant’s conviction.
Nor does waiver for want of preservation apply in this case. Although the Act’s protections are waivable, see Hill,
. August 15, 1999, the actual one hundred eightieth day, fell on a Sunday.
. I pause to note that the Majority mistakenly characterizes IADA Article IV as the relevant provision rather than Article III. Maj. Op. at
. Even where the prisoner affirmatively acts to delay his prosecution such that tolling is appropriate, it is not clear that the statute relieves the prosecution of the burden of seeking a continuance in open court, the prisoner and defense counsel being present, within the 180-day period. The Act's Articles 111(a), VI(a), and IX, read in pari materia, might well be read to require it. Since this case does not present that question, however, it need not be taken up here.
. Appellant's September 2, 1999 request for a continuance, which occurred alter the IADA clock had run, simply does not affect this calculus. See Bell,