Commonwealth v. Lyles

ROWLEY, Judge:

This is an appeal by the Commonwealth from an Order granting appellee’s Motion in Arrest of Judgment on the ground that the Commonwealth had violated Pa.R.Crim.P. 1100.

On June 24, 1977, a criminal complaint was filed in Chester County against appellee charging him with robbery, criminal conspiracy, theft, receiving stolen property, recklessly endangering another, terroristic threats, and unlawful restraint. Appellee was arrested on June 28, 1977. A preliminary hearing was held on July 22, 1977, at which appellee was granted bail and given written notice of his arraignment scheduled for August 29, 1977.¹ Appellee ■ failed to appear for arraignment and a bench warrant was subsequently issued on September 12, 1977. On November 2, 1977, appellee was hospitalized at St. Luke’s Hospital in Philadelphia with serious injuries as a result of a “shootout” with the Philadelphia police. On December 8, 1977, the Commonwealth filed a Petition to Extend the time for trial. The petition was unopposed by appellee. On February 22, 1978, a ninety (90) day extension was granted to the Commonwealth. On May 3, 1978, appellee was transferred from St. Luke’s Hospital to the Graterford Prison Medical Unit in Montgomery County. On May 17, 1978, the Commonwealth filed a second Petition to Extend the time for trial. On August 17, 1978, after an evidentiary hearing, the Commonwealth’s second petition was granted and the time for trial was extended to August 28, 1978. This second extension is the subject of this appeal. Trial began on August 28, 1978. Appellee was convicted of two counts of robbery. Post-trial motions resulted in the granting of appellee’s Motion in Arrest in Judgment by the court en banc. This appeal followed.

Four issues, as stated by the Commonwealth, are raised on appeal: 1) Whether appellee waived his right to raise the Rule 1100 issue?; 2) Whether the Commonwealth must establish that it exercised due diligence in attempting to execute a bench warrant in order to qualify for exclusion of time under Rule 1100?; 3) Whether the court en banc may make findings of fact contrary to that of the hearing court? and 4) Whether the Commonwealth has exercised due diligence when it tries a defendant within the time period of Rule 1100 as extended?

The Commonwealth first argues that appellee waived the Rule 1100 issue by failing to file a Motion to Dismiss prior to trial. It is undisputed that appellee opposed the second Petition to Extend, consequently, the issue has been preserved for appellate review. Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978).

The Commonwealth’s next three arguments deal with whether it exercised due diligence so as to justify the extension granted on August 17, 1978.

In reviewing an alleged Rule 1100 violation, all periods of delay beyond the prescribed period of 180 days must be either excluded from the computation or justified by an order granting an extension, pursuant to the terms of the rule, if the Commonwealth is to prevail. Commonwealth v. Hoffman, 255 Pa.Super. 66, 386 A.2d 138 (1978). The trial court found a total of 248 days to be excludable: they are the sixty-five (65) day period from August 29, 1977 until November 2,1977 when appellee was a fugitive, and the 183 day period from November 2, 1977 until May 3, 1978 during which appellee was hospitalized.² The trial court concluded, however, that even excluding the 248 days, appellee was brought to trial after the Rule 1100 period had expired. The court calculated that 431 days had elapsed between June 24, 1977 and August 28, 1978. Therefore, subtracting the 248 days excludable time from the 431 days, the court concluded that appellee was brought to trial 183 days after the complaint was filed. Consequently, the court went on to determine whether the Commonwealth had exercised due diligence in attempting to bring appellee to trial so as to justify the extension of the date for commencement of trial to August 28, 1978. The trial court concluded that the Commonwealth had not exercised due diligence and granted appellee’s Motion in Arrest of Judgment.

We agree with the trial court that the sixty-five (65) day period from August 29, 1977 until November 2, 1977 when appellee was a fugitive, and the 183 day period from November 2, 1977 until May 3, 1978, during which appellee was hospitalized, were properly excluded.³ Nevertheless, because our calculation of the time which elapsed between the filing of the complaint and the date of trial differs from that of the trial court, we have found no Rule 1100 violation and, therefore, reverse and remand for further proceedings.

With respect to the two excludable periods of time, we note that Rule 1100(d), pertaining to “exclusions” for periods of delay attributable to the accused or his attorney, has been held to require proof of “due diligence in order for the Commonwealth to avail itself of [the] exclusion^].” Commonwealth v. Mitchell, 472 Pa. 553, 561, 372 A.2d 826, 830 (1977). Under Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978), however,” a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself.” (Emphasis added). In such a situation, “the concept of due diligence ... is misplaced in a speedy trial analysis.” Id., 481 Pa.Superior at 355, 392 A.2d at 1331. Consequently, in the case at hand, the sixty-five (65) day period from August 29, 1977 until November 2, 1977 when appellee was a fugitive, was, under Cohen, properly excluded. A due diligence inquiry during that period of time would be “misplaced.”

As for the 183 day period of appellee’s hospitalization which extended from November 2, 1977 until May 3, 1978, such a period is excludable so long as the Commonwealth was “satisfied ... that [appellee] was seriously ill and hospitalized.” Commonwealth v. Haynes, 245 Pa.Super. 17, 21, 369 A.2d 271, 273 (1976). The Commonwealth knew that appellee had been seriously injured on November 2, 1977, in an incident involving the police which had left him with some form of paralysis. Two attempts to list appellant’s case in December of 1977 and January of 1978 were striken because appellee was still hospitalized. The Commonwealth explained its understanding of the magnitude of appellee’s injuries and his resulting unavailability at the February 22, 1978, hearing on its first Petition to Extend. At that hearing the attorney for the Commonwealth stated:

MISS TROIANI: Your honor, Mr. Lyles is in the hospital and it seems that he will be there for a number of months. He was shot by Philadelphia police, and, therefore, we would ask for an extension possibly until this summer because it doesn’t look like he is going to be available for quite awhile.

It is obvious from that statement that the information the Commonwealth had concerning the nature of appellee’s injuries led it to believe that appellee would be unavailable for trial while he was hospitalized,. That belief was left unchallenged by counsel for appellee. “Due diligence” being a relative concept which varies with the circumstances of each particular case, it is our conclusion that, under the circumstances of this case, the Commonwealth exercised due diligence so as to avail itself of the 183 day period of exclusion. We are satisfied that the record shows that the Commonwealth took measures to ascertain that appellee, who was injured as a result of his own criminal conduct, “was seriously ill and hospitalized,” Haynes, supra, and that the Commonwealth was justified in concluding that the extent and nature of appellee’s injuries was such as to render him unavailable for trial during his period of hospitalization. Consequently, this 183 day period when added to the sixty-five day period noted above produced 248 days of excludable time.

Contrary to the calculations of the trial court, we have determined that 430 days elapsed between the filing of the complaint and date of trial, since the first day of the period is excluded from the computation.⁴ 1 Pa.C.S.A. § 1908; Pa.R.Crim.P. 2; Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977). Thus, excluding a total of 248 days, the operative date for commencement of trial under Rule 1100 was extended by that number of days, placing the run date at August 26, 1978. However, August 26, 1978 was a Saturday. Under the Rules of Statutory Construction, Saturday, August 26 and Sunday, August 27 are excluded from our computation. 1 Pa.C.S.A. § 1908. Therefore, the run date in this case was actually August 28, 1978, the date of trial. Since by our calculations appellee was brought to trial in accordance with the provisions of Rule 1100, we hold that the trial court erred in concluding that Rule 1100 had been violated.⁵

In his Motion in Arrest of Judgment, appellee also questioned the sufficiency of the evidence. This issue was not addressed by the trial court, nor was it raised on appeal by the Commonwealth. On remand, the question of whether the evidence presented was sufficient to convict appellee must be disposed of by the trial court before sentencing.

Order reversed and case remanded for further proceedings.

Jurisdiction is relinquished.

SPAETH, J., files a dissenting opinion.

1 . Appellee acknowledged receipt of this notice on July 22 by placing his signature on the same, the original of which is found in the record lodged with this Court on appeal. The notice signed by appellee was a form notice with the appropriate information typed in the alloted spaces. August 29, 1977, was typed in the space provided on the notice form for the date of formal arraignment. An examination of the entire record in the case reveals no change in or continuance of that August 29, 1977 formal arraignment date. The fact that the docket shows that an order issuing a bench warrant for appellee was signed on September 12, 1977, is conclusive of nothing except that an order issuing a bench warrant for appellee was signed on September 12, 1977. To infer that September 12, 1977, was the date of formal arraignment because the bench warrant was issued on that date is to engage in speculation. Although the Commonwealth at the hearing on its second petition for extension misstated the date of formal arraignment as September 12, 1977, the Commonwealth in its brief to this Court has corrected its error and now agrees that August 29, 1977, was the proper date. Finally, and dispositively, the trial court, as the finder of fact, determined that August 29, 1977, was the date set for appellee's formal arraignment and based its computation of time on that date. Because the record supports the trial court’s finding in this respect, we, as an appellate court, are bound to that finding and are not free to disregard it. Therefore, the date of appellee’s formal arraignment stands as August 29, 1977.

2 . The Commonwealth now argues that another time period, May 4, 1978, to May 14, 1978, should be excluded. The Assistant District Attorney testified that he discovered appellee had been released from the hospital by means of a newspaper article on May 14, which stated that appellee had appeared in Montgomery County court the day before. The Commonwealth did not discover for ten days that appel-lee had been released from the hospital because of its own lack of diligence. This period, therefore, is not excludable.

3 . We note, for reasons of clarity, that the sixty-five (65) day period when appellee was a fugitive is calculated as beginning on August 29, 1977, and ending on November 1, 1977. The 183 day period when appellee was hospitalized is calculated as beginning on November 2, 1977, and ending May 3, 1978. In mathematically computing the first period of excludable time, we count August 29, 1977, as the first day of that period because appellee was, under the facts, unavailable as of that date as a fugitive from justice. Likewise, November 2, 1977, is counted as the first day of the second period of excludable time because appellee was, as of that date, confined in the hospital with serious injuries. Whether a criminal defendant or his attorney is unavailable within the meaning of Rule 1100(d) is a factual determination. The duration of such “unavailability", if any, is also factual determination. Because such periods of time are factually determined and not statutorily prescribed, they do not, unlike the 180 day period specified in Rule 1100(a)(2), fall within the purview of 1 Pa.C.S.A. § 1908.

4 . Thus, our calculation is as follows:

1977 - June 6 days

July 31 days

August 31 days

Sept. 30 days

Oct. 31 days

Nov. 30 days

Dec. 31 days

1978 - Jan. 31 days

Feb. 28 days

March 31 days

April 30 days

May 31 days

June 30 days

July 31 days

August 28 days

430 days

5 . Rule 1100 does not necessarily require that a criminal defendant be tried within 180 calendar days from the date on which the complaint was filed in order for trial to commence in a timely fashion. The running of the 180 day interval can either be suspended by period of delay justifiably excluded under Rule 1100(d), or extended by period of delay adequately explained under Rule 1100(c). In this case, the running of the 180 day period was suspended during appellee’s two periods of unavailability.