Commonwealth v. Barbour, D., Aplt.

[J-22-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 13 WAP 2017
:
Appellee : Appeal from the Order of the Superior
: Court entered July 22, 2016 at No.
: 260 WDA 2015, reversing the Order
v. : of the Court of Common Pleas of
: Washington County entered January
: 20, 2015 at Nos. CP-63-CR-
DAREL BARBOUR, : 00001701-2003 & CP-63-CR-
: 00002018-2003.
Appellant :
: ARGUED: April 10, 2018
OPINION
JUSTICE WECHT DECIDED: JULY 18, 2018
In Commonwealth v. Steltz, 560 A.2d 1390 (Pa. 1989), this Court held that a
criminal defendant’s failure to appear at a trial scheduled within the time period provided
by the speedy trial guarantee of the Pennsylvania Rules of Criminal Procedure1
1 See Pa.R.Crim.P. 600. Rule 600 formerly was numbered as Rule 1100, including
during the years in which this Court decided Steltz and several other cases discussed
herein. Rule 1100 was amended and renumbered as Rule 600 on April 1, 2001.
However, because much of the rule’s substance remained consistent throughout the
amendment, this Court has continued to apply our precedents interpreting former Rule
1100 to the analogous provisions of Rule 600, sometimes employing Rule 600
nomenclature to facilitate discussion of Rule 1100 precedents. See, e.g., Commonwealth
v. Sloan, 907 A.2d 460, 463 n.5 (Pa. 2006) (explaining that, because “the substance of
the sections of current Rule 600 and former Rule 1100 under scrutiny are identical,” the
Court would “for the sake of convenience and clarity . . . substitute the applicable
numbering nomenclature of Rule 600 for that of old Rule 1100”). Except where necessary
to avoid confusion, we continue this practice herein, and will refer to the rule-based right,
generally, as “Rule 600.”
constitutes a waiver of that defendant’s right to seek a remedy under that rule. Today,
we consider whether the Steltz waiver rule applies to a defendant who absented himself
from an untimely trial—one that violated Rule 600 before the defendant failed to appear.
The Superior Court determined that the Steltz rule applies without regard to the timeliness
of the trial, and accordingly reversed the order of the Washington County Court of
Common Pleas granting Darel Barbour relief under Rule 600. We conclude that the Steltz
rule is inapplicable. Consequently, we reverse the order of the Superior Court.
By the terms of Rule 600, the Commonwealth must bring a defendant to trial within
365 days from the date upon which a written criminal complaint is filed. Pa.R.Crim.P.
600(A)(2)(a). However, the Rule 600 run date may be adjusted pursuant to the
computational directives set forth in Subsection (C) of the Rule. For purposes of the Rule
600 computation, “periods of delay at any stage of the proceedings caused by the
Commonwealth when the Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must commence.” Id. 600(C)(1).
“Any other periods of delay,” including those caused by the defendant, “shall be excluded
from the computation.” Id. When considering a Rule 600 motion, the court must identify
each period of delay and attribute it to the responsible party, then adjust the 365-day tally
to arrive at the latest date upon which the Commonwealth may try the defendant. Absent
a demonstration of due diligence, establishing that the Commonwealth has done
“everything reasonable within its power to guarantee that [the] trial begins on time,”
Commonwealth v. Matis, 710 A.2d 12, 17 (Pa. 1998), the Commonwealth’s failure to bring
the defendant to trial before the expiration of the Rule 600 time period constitutes grounds
for dismissal of the charges with prejudice. See Pa.R.Crim.P. 600(D)(1).
The particulars of the Rule 600 computation in the instant case are not in dispute.
Nonetheless, some factual background is required in order to provide context to the
[J-22-2018] - 2
dispositive inquiry. Darel Barbour originally was scheduled for a trial on October 18, 2004,
on two consolidated criminal cases, which were commenced by criminal complaints filed
on August 4, 2003 and August 20, 2003, respectively. Barbour did not appear for his trial,
and, due to his absence, the trial court issued bench warrants for his arrest. Those
warrants remained outstanding for nearly a decade, until Barbour was arrested for an
unrelated criminal offense on September 8, 2014. Following that arrest, Barbour’s older
cases were scheduled for trial on October 20, 2014. However, on October 3, 2014,
Barbour moved to dismiss both cases under Rule 600, contending that his original trial
date of October 18, 2004—the date upon which he failed to appear—was scheduled in
violation of the rule.
The trial court held a hearing on Barbour’s motion on December 29, 2014. In
support of its position that Barbour’s October 18, 2004, trial date complied with Rule 600,
the Commonwealth presented the testimony of Assistant District Attorney Josh Carroll,
who was the prosecutor assigned to Barbour’s cases. ADA Carroll explained that, in
2004, trial scheduling in Washington County was largely an informal process. Oftentimes,
ADA Carroll testified, defendants were provided no written notice of when their
appearance was required, and no formal court orders were prepared or placed on the
docket. Instead, defendants generally were given oral notice of court proceedings, and,
“[a]t that point, there would not have been any notices sent out or any [o]rders. It was
much more informal, just . . . here is the date, show up.” Notes of Testimony, Rule 600
Hearing (“N.T.”), 12/29/2014, at 15.
Due to the informality of this process and the lack of detailed recordkeeping,
evidence of the procedural history of Barbour’s cases was sparse. The official docket
reflected the dates of Barbour’s preliminary hearings and arraignments, but offered little
insight into the purpose and outcome of several later proceedings. It was clear that,
[J-22-2018] - 3
following a hearing on March 5, 2004, Barbour was granted a nominal bail and released
from pre-trial incarceration. Several months later, on September 14, 2004, the court
issued a bench warrant due to Barbour’s failure to appear for an unspecified proceeding.
However, because Barbour was not given sufficient notice that his appearance was
required, the court vacated that warrant three days later. The order vacating the bench
warrant stated that Barbour and his counsel were expected to be prepared to proceed to
trial during the October 2004 trial term. This was the first clear reference to a trial date in
the record.
The period of time following Barbour’s nominal bail hearing was a subject of
contention at the December 2014 hearing. ADA Carroll testified that, following Barbour’s
release on bail in March 2004, he “would have” scheduled the cases for the next available
trial term, in April 2004. N.T., 12/29/2014, at 20. However, the official docket contained
no reference to any criminal proceeding scheduled during the month of April. The court
questioned ADA Carroll about the sequence of events in April:
THE COURT: Can I interrupt for a second, before we get too far off here?
You said it was initially called for trial in April; correct?
[ADA Carroll]: Yes.
THE COURT: Why didn’t you request a bench warrant when he didn’t show
up in April?
[ADA Carroll]: I don’t know that he didn’t show up in April.
THE COURT: You don’t know what happened then?
[ADA Carroll]: What would have happened, Your Honor, would have been,
as indicated, we were set up to put this one on the trial list. In some cases,
it was a notebook, like you have in front of you, that had cases written down
on it that were just called for trial. There was no formal [o]rder.
What would have transpired between April and September may have been
— there may have been other trials or things that took precedence.
[J-22-2018] - 4
As I indicated, I know the senior judges were only, I think, only allowed,
actually, by law to be here five or seven days a month. I think it was five.
So, there was a very small window.
THE COURT: So, you don’t really know what happened between April and
September?
[ADA Carroll]: No. I don’t recall.
N.T., 12/29/2014, at 23-24. ADA Carroll also suggested that Barbour’s trial was
scheduled for September 2004, but conceded that “there is nothing in the docket” to
corroborate his assertion. Id. at 22.
The trial court ultimately granted Barbour’s Rule 600 motion and dismissed both
cases with prejudice. After accounting for the periods of delay excluded from the
computation, the court determined that the Rule 600 run dates for Barbour’s cases were
August 18, 2004, and September 1, 2004, respectively. Barbour’s trial date of October
18, 2004, indisputably lay beyond either of those dates. Although ADA Carroll asserted
that he scheduled Barbour’s trial sometime before October 18, 2004, the trial court
rejected this testimony, finding that “[t]here is absolutely nothing in the official docket that
would indicate a trial for either case was ever scheduled before that date.” Trial Ct. Op.,
4/2/2015, at 18. The court gave little weight to ADA Carroll’s suggestions that he “would
have” scheduled Barbour’s trial at some earlier date, explaining that, “[s]imply put, this
[c]ourt is not concerned with what ‘would’ have happened, or ‘may’ have happened; the
[c]ourt is only concerned with what did happen.” Id. (emphasis omitted).
The court further concluded that the Commonwealth offered no justifiable excuse
for its failure to schedule Barbour’s trial in a timely manner, and, thus, failed to establish
that it acted with due diligence in attempting to bring Barbour to trial. There was no
evidence of administrative error or any other delay that was occasioned by some
circumstance beyond the Commonwealth’s control. “In this matter,” the court reasoned,
[J-22-2018] - 5
“it is clear beyond a preponderance of the evidence that the Commonwealth’s outstanding
negligence in failing to account for the time that had passed since the filing of the criminal
complaints is the sole impetus behind the Rule 600 violations.” Id. at 20.
Finally, the trial court considered the Commonwealth’s argument that to grant
Barbour relief under Rule 600 would be contrary to the “spirit of the law” and would
encourage “procedural gamesmanship” by unduly rewarding Barbour’s failure to appear.
Id. at 22-23. The court disagreed, reasoning that Barbour’s failure to appear at trial was
not the cause of the Rule 600 violations. The court explained that, “[b]ecause the Rule
600 violations . . . occurred before [Barbour] had absconded, the Commonwealth’s
argument regarding ‘procedural gamesmanship’ is totally misplaced.” Id. at 22. In the
trial court’s view, Barbour was deprived of a speedy trial not because of the nearly ten
years’ delay caused by his absence, but rather due to the Commonwealth’s earlier failure
to put forth a reasonable effort to bring the cases to trial within the limits of Rule 600. The
court concluded that, in light of the important rights at stake, and considering “the
inexcusable failure of the Commonwealth to keep track of the time that had elapsed in
these matters,” the court could not “ignore the fact that the Commonwealth waited over a
year, without any reasonable justification, to bring either of these cases to trial.” Id. at 23.
The Commonwealth appealed to the Superior Court, which reversed the trial
court’s order and remanded Barbour’s cases for trial, albeit without a majority rationale
for doing so. See Commonwealth v. Barbour, 260 WDA 2015, 2016 WL 4920328 (Pa.
Super. July 22, 2016) (unpublished).2 The Superior Court’s lead memorandum did not
revisit the trial court’s Rule 600 computation, nor did it dispute the court’s conclusion that
2 The Superior Court announced its disposition in a memorandum authored by then-
Judge, now-Justice, Mundy. Judge Bowes authored a concurring memorandum, in which
she relied upon a distinct theory supporting the same outcome. Judge Jenkins concurred
in the result, but did not join either of her colleagues’ memoranda. For ease of discussion,
we will refer to then-Judge Mundy’s writing as the “lead memorandum.”
[J-22-2018] - 6
Barbour’s October 18, 2004 trial date was untimely. Instead, the lead memorandum
concluded that, pursuant to this Court’s holding in Steltz, Barbour waived the protections
of Rule 600 by failing to appear on his original trial date. In Steltz, this Court held that
“[o]ne’s voluntary absence from a day set for trial within Rule [600] is a waiver of that
rule,” and that, once an absconding defendant is taken back into custody, the trial shall
take place “at the reasonable convenience of the court and the prosecuting authorities.”
Steltz, 560 A.2d at 1391. The Superior Court’s lead memorandum noted that this Court
again had relied upon the Steltz waiver rule in Commonwealth v. Brock, 61 A.3d 1015
(Pa. 2013).
The lead memorandum acknowledged that “in Steltz and Brock the defendants
absconded before the Commonwealth’s Rule 600 time had expired.” Barbour, slip op. at
10. The lead memorandum recognized that Barbour’s circumstance was distinguishable,
in that the trial court concluded that the Commonwealth violated Rule 600 before he failed
to appear for trial. Nevertheless, the lead memorandum reasoned that a court could not
condone Barbour’s absconsion by “permitting a defendant to file a motion to dismiss
under Rule 600 after returning from ten years as a fugitive.” Id. at 9. Noting that it was
uncontested that Barbour’s cases were called for trial on October 18, 2004, and that
Barbour did not appear, the lead memorandum concluded that, pursuant to Steltz,
Barbour “waived his Rule 600 rights and could not file a Rule 600 motion upon his return
to the trial court ten years later.” Id. at 10. Accordingly, the lead memorandum held that
the trial court abused its discretion in granting Barbour’s motion, reversed the trial court’s
order, and remanded Barbour’s cases for trial.
Judge Bowes concurred, but did not join the lead memorandum because, in her
view, it misapplied the holding of Steltz. Judge Bowes noted that the Commonwealth
presented no grounds to disturb the trial court’s factual findings and Rule 600
[J-22-2018] - 7
computation, and that the Superior Court accordingly was bound by the trial court’s
determination that Barbour’s original trial date of October 18, 2004, was scheduled in
violation of Rule 600. Stressing that, in Steltz, this Court concluded that waiver was
appropriate because the defendant failed to appear on a day set for trial within Rule 600,
Judge Bowes observed that, in other words, “[i]n both Steltz and Brock, the defendants
failed to appear for a trial date that complied with Rule 600.” Concurring Memorandum,
slip op. at 1-2 (emphasis in original). By contrast, in the instant case:
[Barbour’s] absence was not “for a day set for trial within Rule [600].” In
essence, the trial court determined that dismissal of charges was a fait
accompli: had [Barbour] appeared in court on October 18, 2004, as
scheduled, a motion for dismissal would have succeeded. Waiver of the
rule-based right to a speedy trial is justified when a defendant fails to appear
for a date within Rule 600 for a simple reason: he could have had a timely
trial by appearing. By failing to appear, “they go to the end of the line and
must wait their turn after the convenience of the others their absence
delayed.” Steltz, 560 A.2d at 1391. Here, the trial court has determined
[Barbour] was denied the right to timely trial, even if he had appeared in
October of 2004. All that remained for him to do was request dismissal.
Id. at 2-3 (emphasis in original; some alterations in original; citation modified).
Judge Bowes illustrated the potential pitfalls of the lead memorandum’s application
of Steltz with a hypothetical:
Imagine the Commonwealth schedules a case well beyond the mechanical
run date. The defendant fails to appear and a bench warrant is issued. The
next day, the litigant appears and the case is scheduled for the next
available court date. According to the [lead memorandum], this defendant
has forever lost the ability to raise a Rule 600 claim, and the Commonwealth
would not need to establish due diligence.
Id. at 3 (emphasis omitted).
Rather than applying Steltz, Judge Bowes would have denied Barbour relief upon
a distinct, novel theory. Judge Bowes concluded that the ten years that elapsed between
Barbour’s failure to appear and his filing of the Rule 600 motion prejudiced the
[J-22-2018] - 8
Commonwealth’s ability to respond to the motion, in that “the Commonwealth was unfairly
hampered in its ability to convince the trial court that [Barbour] was, in fact, scheduled for
trial well before” October 18, 2004. Id. at 4. Judge Bowes stressed that all rights, even
those of constitutional dimension, may be forfeited by a litigant’s failure to assert the right
in a timely manner. See id. at 9 (quoting United States v. Olano, 507 U.S. 725, 731 (1993)
(“No procedural principle is more familiar to this Court than that a constitutional right, or
a right of any other sort, may be forfeited in criminal as well as civil cases by the failure
to make timely assertion of the right.”) (internal quotation marks omitted)). Judge Bowes
recognized that Rule 600 places a burden upon the Commonwealth, not the defendant,
and that a criminal defendant has no obligation to bring himself to trial. See id. at 11
(citing Commonwealth v. Brown, 875 A.2d 1128, 1141 (Pa. Super. 2005) (“Appellee had
no obligation to bring himself to trial”)). Nonetheless, Judge Bowes reasoned that “there
is a difference between a demand for trial and a demand for discharge.” Id. (emphasis
omitted). When Rule 600 has been violated, Judge Bowes suggested, the defendant
“should bear some duty to assert the allegation of error in a timely manner.” Id.
In the instant case, Judge Bowes observed “strong indications the Commonwealth
was prejudiced by the delay.” Id. at 12. Although the official record provided scant details
of the proceedings leading up to Barbour’s October 18, 2004 trial date, the evidence
suggested that some type of proceeding was scheduled before that date. After ten years,
Judge Bowes opined, the parties were unable to recall effectively the sequence of events
in 2004. Judge Bowes concluded that “the Commonwealth was prejudiced by the loss of
evidence and faded memories due to [Barbour’s] lack of diligence in pursuing discharge.”
Id. at 13. Accordingly, she would have concluded that Barbour forfeited his right to the
Rule 600 remedy.
[J-22-2018] - 9
Judge Bowes recognized that the text of Rule 600 does not impose her suggested
time limitation upon the filing of the motion, and further acknowledged that the Superior
Court is not authorized to promulgate rules of procedure, which is the exclusive province
of this Court under Article V, Section 10(c) of the Pennsylvania Constitution.
Nonetheless, Judge Bowes invoked a passage from former Chief Justice Castille’s
concurring opinion in Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), wherein he stated
that, although the Superior Court is not authorized to adopt or amend our procedural
rules, he had “no fixed objection to the [Superior Court] undertaking to adopt efficiencies
and improvements in order to better serve justice.” Id. at 881 (Castille, C.J., concurring).
Judge Bowes suggested that her proposed disposition was consistent with that position.
We granted Barbour’s petition for allowance of appeal in order to consider the
applicability of the Steltz waiver rule in light of the untimeliness of Barbour’s original trial
date. We also directed the parties to address the viability of Judge Bowes’ novel Rule
600 forfeiture theory.3
Before this Court, Barbour argues that the Superior Court’s lead memorandum is
inconsistent with both the plain language of Rule 600 and this Court’s decisions in Steltz
and Brock. Barbour notes that the Rules of Criminal Procedure are to “be construed in
consonance with the rules of statutory construction,” and that, under the Statutory
3 Adopting Barbour’s statement of the issue, but directing additional briefing, we
granted allocatur in order to consider these questions:
Did the Superior Court err in creating a new waiver [ ] provision for
[Pa.R.Crim.P.] 600 by holding that a defendant who fails to appear for an
untimely trial can still waive his rights under the rule, in direct contradiction
to this Court’s jurisprudence?
Additionally, the parties are directed to address the viability and applicability
of the waiver theory articulated in Judge Bowes’ concurring memorandum,
particularly in light of the text of Rule 600.
Commonwealth v. Barbour, 168 A.3d 1241 (Pa. 2017) (per curiam).
[J-22-2018] - 10
Construction Act, “[w]hen the words of a statute are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext of pursuing its spirit.” Brief for Barbour
at 19 (quoting Pa.R.Crim.P. 101(C); 1 Pa.C.S. § 1921). Barbour observes that no
provision of Rule 600 mandates a finding of waiver. See id. at 19-23. Accordingly,
Barbour argues that the Superior Court’s decision is contrary to the unambiguous
language of the rule.
With regard to the applicability of this Court’s decisions in Steltz and Brock,
Barbour essentially adopts Judge Bowes’ position on this particular point, distinguishing
his failure to appear for an untimely trial from a defendant’s failure to appear for a timely
trial. In Steltz, Barbour argues, it was the defendant’s failure to appear “which caused the
trial to be rescheduled for a date outside of the Rule 600 requirements.” Id. at 23. Here,
unlike in Steltz, Barbour argues that he “did not fail to appear for a properly scheduled
trial.” Id. at 25. As for Brock, Barbour notes that this Court’s opinion did not specify
whether the defendant’s original trial date complied with Rule 600. However, Barbour
observes that the focus of Brock was not upon the timeliness of the trial, but upon the
inquiry of “exactly when a case is ‘set for trial’” for purposes of Rule 600. Id. at 24.
Barbour contends that the Steltz waiver rule is narrow in application, and permits a finding
of waiver only when a defendant causes a delay by failing to appear for an otherwise-
timely trial. Barbour argues that, in finding that his absence from an untimely trial results
in permanent waiver, and thereby excusing the Commonwealth entirely from its Rule 600
obligations, the Superior Court erroneously and unjustifiably expanded the Steltz rule
beyond its intended scope.
In challenging Judge Bowes’ alternative approach, Barbour argues that Rule 600
already provides an unambiguous limitation upon the filing of a Rule 600 motion. Barbour
highlights the subsection of Rule 600 that specifies that a written motion may be filed “at
[J-22-2018] - 11
any time before trial.” Id. at 27 (quoting Pa.R.Crim.P. 600(D)(1)). Thus, Barbour
contends, Judge Bowes’ suggestion—that a defendant must advance a Rule 600 claim
in an unspecified “timely fashion” or lose the right to relief—contradicts the plain language
of the rule. Rather, Barbour argues, “a defendant can move to dismiss a case for a Rule
600 violation any time before trial, with no other time limitations imposed.” Id. at 28.
Barbour further contends that Judge Bowes’ approach would impose a burden upon a
defendant that is inconsistent with the purpose of Rule 600. Barbour notes that it is the
Commonwealth’s duty to prosecute defendants in a timely manner, and that defendants
are neither required nor expected to take any steps to prosecute themselves. Barbour
argues that, “[i]f the Commonwealth forgets about a case and does not pursue it, then the
Commonwealth has failed society,” adding that defendants “should not be punished for
the Commonwealth’s failure.” Id. at 29.
For its part, the Commonwealth contends that the Steltz waiver rule was premised
not upon the timeliness of a trial, but upon the “ripple-effect a defendant’s non-
appearance has on the system.” Brief for Commonwealth at 18. In the Commonwealth’s
view, the Steltz Court primarily was concerned with the delay that an absence from trial
causes for other individuals, in that a defendant who fails to appear wastes judicial and
prosecutorial time and resources that could have been devoted to other individuals
awaiting trial. For this reason, the Commonwealth contends, the Steltz waiver rule should
apply uniformly to all absentees, without regard to the timeliness of the trial under Rule
600. In further support, the Commonwealth notes that, in Brock, this Court applied the
Steltz waiver rule but “did not emphasize where that trial date fell with regard to Rule 600.”
Id. at 19.
The Commonwealth further maintains that, should we afford Barbour the remedy
provided by Rule 600, we would encourage “procedural gamesmanship.” Id. at 19-20.
[J-22-2018] - 12
According to the Commonwealth, Barbour “comes to the court with unclean hands
wanting to profit by his wrongful behavior by manipulating a rule designed to protect the
defendant by bringing his case to trial.” Id. at 21. To discourage such purported
chicanery, the Commonwealth suggests that this Court apply “the logical, common sense
rule that the voluntary absence of a criminal defendant from the date of trial, wherever it
falls relative to the Rule 600 deadline, is a waiver of that rule.” Id. at 22-23. As a final
argument supporting the uniform, automatic application of the Steltz waiver rule, the
Commonwealth notes that a finding of waiver generally relieves a court from
consideration of the merits of a claim. Because a court, in order to discern a Rule 600
violation, ordinarily must hold a hearing, take evidence, and make findings relating to the
exclusion of certain time periods from the Rule 600 computation, the Commonwealth
argues that it would be incongruous to premise a finding of waiver upon the point in time
at which Rule 600 is violated, inasmuch as the merits of the claim must be addressed
before a violation may be found. See id. at 24-27. Ruling in Barbour’s favor, the
Commonwealth warns, would “open Pandora’s Box to litigation in Pennsylvania’s trial
courts and appellate courts as to whether Rule 600 even applies to an absconding
defendant.” Id. at 26-27.
Setting aside the Steltz waiver rule, the Commonwealth suggests that Judge
Bowes provided a reasonable alternative theory, which is acceptable in that it similarly
“does not reward a criminal defendant for intentionally absconding from trial.” Id. at 28.
In the Commonwealth’s view, forfeiture of Barbour’s Rule 600 claim was warranted by the
combination of Barbour’s delay in asserting his right and the prejudice that the
Commonwealth sustained to its ability to defend against his motion. The Commonwealth
likens Judge Bowes’ forfeiture approach to the federal courts’ application of the fugitive
disentitlement doctrine, pursuant to which a court may, in the Commonwealth’s words,
[J-22-2018] - 13
“preclude fugitives from seeking relief from the judicial system whose authority he or she
evades.” Id. at 33; see generally Ortega-Rodriguez v. United States, 507 U.S. 234 (1993).
The Commonwealth acknowledges that Judge Bowes’ theory appears to be inconsistent
with the language of Subsection (D)(1) of the rule, which, as Barbour stresses, provides
that a Rule 600 motion may be brought “at any time before trial.” See Brief for
Commonwealth at 35-36; Pa.R.Crim.P. 600(D)(1). Nevertheless, the Commonwealth
suggests, adoption of Judge Bowes’ forfeiture principle would be a permissible exercise
of this Court’s rulemaking authority. However, the Commonwealth concludes by
suggesting its preference for an extension of the waiver rule of Steltz and Brock, decisions
which, the Commonwealth emphasizes, “remain good law in Pennsylvania.” Brief for
Commonwealth at 36.
“Ordinarily, prompt-trial rulings are reviewed by the appellate courts for an abuse
of discretion.” Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (citing
Commonwealth v. Burno, 154 A.3d 764, 793 (Pa. 2017)). However, the applicability of
waiver principles to preclude the Rule 600 remedy is a question of law, over which our
standard of review is de novo and our scope of review is plenary. Id. (citing In re D.L.H.,
2 A.3d 505, 513 (Pa. 2010) (a question of law is “subject to plenary review by this Court
to be conducted de novo”)).
Although it is a rule-based right that is at issue in this matter, rather than the distinct
constitutional right to a speedy trial, we remain conscious of the essential purpose of Rule
600 and the important constitutional interest that it safeguards—an interest which
underlies all of our Rule 600 jurisprudence. By way of background, this Court
promulgated Rule 600, as well as its predecessor Rule 1100, in response to the Supreme
Court of the United States’ decision in Barker v. Wingo, 407 U.S. 514 (1972), in order to
provide a concrete standard for effectuating and protecting a defendant’s constitutional
[J-22-2018] - 14
right to a speedy trial under the Sixth Amendment to the United States Constitution 4 and
Article I, Section 9 of the Pennsylvania Constitution.5
The right to a speedy, public trial is “one of the most basic rights preserved by our
Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226 (1967). Because the exercise
of the government’s power to detain an individual pending a criminal prosecution places
a heavy burden upon the accused, the speedy trial guarantee “is an important safeguard
to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and
concern accompanying public accusation and to limit the possibilities that long delay will
impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116,
120 (1966). For a person subject to pre-trial incarceration:
The time spent in jail awaiting trial has a detrimental impact on the
individual. It often means loss of a job; it disrupts family life; and it enforces
idleness. Most jails offer little or no recreational or rehabilitative programs.
The time spent in jail is simply dead time. Moreover, if a defendant is locked
up, he is hindered in his ability to gather evidence, contact witnesses, or
otherwise prepare his defense. Imposing those consequences on anyone
who has not yet been convicted is serious. It is especially unfortunate to
impose them on those persons who are ultimately found to be innocent.
Barker, 407 U.S. at 532-33. Moreover, even for an individual who secures his release on
bail and will await trial outside of a jail cell, the foreboding promise of an impending
prosecution is a heavy weight to carry. “[E]ven if an accused is not incarcerated prior to
trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of
4 The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed[.]” U.S. CONST. amend. VI. The
Sixth Amendment’s speedy trial guarantee was made applicable to the states through the
Fourteenth Amendment. See Klopfer v. North Carolina, 386 U.S. 213, 226 (1967); Smith
v. Hooey, 393 U.S. 374, 374-75 (1969).
5 Article I, Section 9 of our Commonwealth’s charter provides that, “[i]n all criminal
prosecutions the accused hath a right to . . . a speedy public trial by an impartial jury of
the vicinage[.]” PA. CONST. art. I, § 9.
[J-22-2018] - 15
anxiety, suspicion, and often hostility.” Id. at 33. Because the power to deprive one of
his liberty is of such consequence, and because the attendant disturbance to one’s life is
so momentous, the right to a speedy, public trial is a core component of the procedural
rights afforded to the accused under the Constitution, “as fundamental as any of the rights
secured by the Sixth Amendment.” Klopfer, 386 U.S. at 223.
In Barker, the Supreme Court of the United States articulated a standard for
ascertaining when an individual has been deprived of the federal constitutional right to a
speedy trial. Although the Barker Court adopted a multifactorial balancing inquiry6 and
found “no constitutional basis for holding that the speedy trial right can be quantified into
a specified number of days or months,” the Court held that individual states “are free to
prescribe a reasonable period consistent with constitutional standards.” Barker, 407 U.S.
at 523. Following our decision in Commonwealth v. Hamilton, 297 A.2d 127 (Pa. 1972),
this Court accepted Barker’s invitation, and implemented a rule-based right to a speedy
trial, where speediness is measured by a particular number of days, thereby eliminating
“the inherent vagueness encompassed in any balancing process” and avoiding “the
necessity of a court determining a violation of this constitutional right on a case-by-case
basis.” Id. at 132-33; see also Commonwealth v. Whitaker, 359 A.2d 174, 176 (Pa. 1976)
(noting that Rule 600 “represents this Court’s determination that the ‘balancing test’
announced in Barker provides only the ‘minimum standards guaranteed by the Sixth and
Fourteenth Amendments,’ and that such minimum standards are not adequate to provide
Pennsylvania criminal defendants the protection guaranteed by the constitution of this
Commonwealth”). “Thus, a violation of Rule 600 may result in dismissal of charges even
6 The Barker Court prescribed four factors to be weighed when considering a
constitutional speedy trial claim: “[l]ength of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at
530.
[J-22-2018] - 16
where a court would not otherwise find a constitutional violation under the Barker factors.”
Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012).
Although Rule 600 was designed to protect the rights of the accused, the rule is
not blind to the needs of the Commonwealth or its interest in prosecuting criminal
offenders. We have described Rule 600 as “a careful matrix protecting a defendant’s
rights to be free from prolonged pretrial incarceration and to a speedy trial, while
maintaining the Commonwealth’s ability to seek confinement of dangerous individuals
and those posing a risk of flight, and to bring its cases in an orderly fashion.”
Commonwealth v. Dixon, 907 A.2d 468, 473 (Pa. 2006). In fixing a general time frame of
365 days, the rule provides the Commonwealth with sufficient opportunity to prepare its
case for trial, but seeks to minimize the harms to the accused that would result from a
lengthier period. However, consistent with the rule’s “dual purpose of both protecting a
defendant’s constitutional speedy trial rights and protecting society’s right to effective
prosecution of criminal cases,” Bradford, 46 A.3d at 701, the 365-day time limit is not
absolute, and certain periods of delay are not to be held against the Commonwealth.
Principally, and conceptually significant for purposes of the instant case, delays caused
by the defendant do not count toward the 365 days provided to the Commonwealth.
Because the Commonwealth is allotted the full time period within which to bring the
defendant to trial, Rule 600 “seeks to prevent the Commonwealth from being accountable
for those delays in the commencement of trial where they result from actions properly
attributable to the defense.” Commonwealth v. Morgan, 398 A.2d 972, 974-75 (Pa. 1979).
Since the origin of the rule, this Court has applied the intuitive precept that, where
a defendant voluntarily fails to appear for a required court proceeding, the resulting delay
is attributable to him alone, and shall be excluded from the time chargeable to the
Commonwealth. When performing the Rule 600 computation, “the general rule is that,
[J-22-2018] - 17
where a period of delay is caused by the defendant’s willful failure to appear at a court
proceeding of which he has notice, exclusion is warranted.” Commonwealth v. Baird, 975
A.2d 1113, 1118 (Pa. 2009); see also Commonwealth v. Cohen, 392 A.2d 1327, 1331
(Pa. 1978) (holding that “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” and “the
Commonwealth is entitled to an exclusion of this period . . . without the requirement of a
showing of its efforts to apprehend the defendant during the period of his absence”). In
both Cohen and Baird, the defendants failed to appear for their arraignments, resulting in
delays excludable from the Rule 600 computation. See Cohen, 392 A.2d at 1329; Baird,
975 A.2d at 1114. This sensible exclusion applies equally to a defendant’s absence from
other pre-trial proceedings at which his appearance is required. By way of example, the
Superior Court correctly deems excludable any delay caused by a defendant’s failure to
appear for a preliminary hearing. See, e.g., Commonwealth v. Armstrong, 74 A.3d 228,
236 (Pa. Super. 2013), aff’d on other grounds, 107 A.3d 735 (Pa. 2014)7; Commonwealth
v. Peterson, 19 A.3d 1131, 1137 (Pa. Super. 2012) (en banc), aff’d, 44 A.3d 655 (Pa.
2012).
In Steltz, this Court diverged from the general rule as it related to a defendant’s
failure to appear not for a pre-trial procedural hearing or appearance, but for a timely trial.
Theodore Steltz initially appeared “on the day set for trial within the purview of Rule [600].”
Steltz, 560 A.2d at 1390. However, before voir dire commenced, Steltz absconded from
7 In a per curiam order, this Court affirmed Armstrong upon the basis of the Superior
Court’s opinion, but we did not grant allocatur upon the Rule 600 issue raised therein.
Accordingly, as to the proposition for which we presently cite Armstrong, the Superior
Court’s decision does not carry the same precedential value as an opinion of this Court.
See Commonwealth v. Tilghman, 673 A.2d 898, 904 (Pa. 1996). Herein, we cite the
Superior Court’s decision in Armstrong for illustrative purposes only.
[J-22-2018] - 18
the courthouse. He was apprehended eleven days later, and his trial was rescheduled
for a date beyond the Rule 600 run date. On the date of the rescheduled trial, Steltz
moved for dismissal, alleging that his rescheduled trial was untimely under the rule. The
trial court granted Steltz’s motion, and the Superior Court affirmed. This Court reversed
and remanded Steltz’s case for trial. With nary a mention of our earlier decision in Cohen,
in which this Court held that a defendant’s failure to appear “at a court proceeding” results
in excludable time, Cohen, 392 A.2d at 1331, this Court held that Steltz’s failure to appear
for his timely trial resulted in waiver of his Rule 600 claim. Our reasoning, in its entirety,
was as follows:
One’s voluntary absence from a day set for trial within Rule [600] is a waiver
of that rule. Therefore, his trial thereafter is, [sic] at the reasonable
convenience of the court and the prosecuting authorities. Rule [600] is a
procedural rule designed to give reasonable parameters for the
commencement of trial.
It is a benefit to one charged that a trial date will be known as closely as
possible on our crowded dockets. A trial date for one person is a delay for
another. When they voluntarily absent themselves, for whatever reason,
they go to the end of the line and must wait their turn after the convenience
of the others their absence delayed. We cannot, with limited facilities, let
one set the rules according to their whim, convenience or wrong.
Steltz, 560 A.2d at 1391 (emphasis added).8
This Court has applied our holding in Steltz on one other occasion.9 In Brock, John
Brock failed to appear for his scheduled trial date, and spent multiple months as a fugitive
8 Although one might question the reasoning behind the Steltz Court’s adoption of a
strict waiver rule in lieu of the excludable time framework that generally applies to delays
caused by a defendant’s failure to appear—a holding that the Steltz Court did not support
by reference to the text of the rule or any decisional law—Barbour does not ask this Court
to reconsider the viability of Steltz. Moreover, because the instant case is readily
distinguishable, we decline to revisit our holding in Steltz sua sponte.
9 Former Chief Justice, then-Justice, Castille advocated for application of the Steltz
waiver rule in his concurring opinion in Commonwealth v. Shaffer, 712 A.2d 749 (Pa.
[J-22-2018] - 19
before being arrested in another county. Upon his return to the jurisdiction, Brock orally
moved for dismissal pursuant to Rule 600. The trial court granted his motion, and the
Superior Court affirmed. Importantly, the Superior Court concluded that the Steltz waiver
rule was inapplicable, reasoning that “a trial commences under Rule 600 when the first
substantial step toward the guilt-determining process occurs, and, because there was no
evidence that such [a] first step occurred on [his original trial date], trial had not
commenced, and thus Brock had not waived his Rule 600 claim.” Brock, 61 A.3d at 1017.
This Court disagreed. First, we held that Brock’s Rule 600 claim was deficient in
that he had made an oral motion only. We “reiterate[d] that a motion to dismiss pursuant
to Pa.R.Crim.P. 600 must be made in writing, and a copy of such motion must be served
on the Commonwealth’s attorney.” Id. at 1020. Second, we held that the Superior Court
erred in its attempt to distinguish Steltz. After reviewing the language of Rule 600 and its
accompanying commentary, we agreed with the Superior Court that the “commencement
of trial” for purposes of the rule is to be “marked by a substantive, rather than a pro forma
event.” Id. at 1021. Such a requirement, we explained, “prevents the Commonwealth
from manipulating the Rule 600 clock by initiating superficial or non-substantive court
proceedings,” and “places an obligation on the Commonwealth to ensure that the spirit
behind Rule 600 is not compromised.” Id. at 1021-22 (emphasis omitted). However, we
concluded that the delay resulting from Brock’s absconsion implicated the concerns that
this Court articulated in Steltz, regardless of whether the trial was deemed to have
“commenced.” We reasoned that the “impact of the defendant’s failure to appear is
1998), because the defendant therein had failed to appear for a timely trial. However, the
lead opinion, authored by former Chief Justice Cappy, neither applied nor discussed
Steltz, despite Justice Castille’s invocation of its waiver rule. Instead, the plurality found
that the trial court had abused its discretion by dismissing criminal charges as a sanction
upon the prosecutor, who had planned a vacation during the scheduled trial term. See
Shaffer, 712 A.2d at 752-53.
[J-22-2018] - 20
equally adverse regardless of the stage of the proceedings; once a case has been [ ]
listed for trial, it is irrelevant whether the defendant absents himself before the
proceedings commence or after a substantive event had occurred, as in Steltz.” Id. at
1022. We added that a “defendant cannot be permitted to frustrate the judicial process
in this manner.” Id. Accordingly, we held that the circumstance was indistinguishable
from Steltz, and that Brock had waived his Rule 600 claim by failing to appear for his
scheduled trial.
As the parties to the instant case both note, this Court’s opinion in Brock did not
review the details of the trial court’s Rule 600 computation or otherwise note whether
Brock’s initial trial date was timely under the rule. As Barbour argues, however, this
omission is easily explained by the Brock Court’s focus upon the Superior Court’s stated
rationale, which centered upon the determination of when a trial may be deemed to
“commence” for purposes of Rule 600. The Superior Court in Brock did not attempt to
distinguish Steltz upon the timeliness of the original trial date, but rather upon the
nonexistence of a substantive event to mark the “commencement” of the trial. A review
of the Superior Court’s memorandum in Brock, however, reveals that Brock’s original trial
date was indeed timely under Rule 600—a conclusion with which this Court took no issue.
See Commonwealth v. Brock, 435 EDA 2008, slip op. at 10 (Pa. Super. June 8, 2010)
(unpublished) (noting that, by the date of Brock’s original trial, “252 days chargeable to
the Commonwealth had elapsed”).
As is evident, and as the Superior Court in the instant case recognized, this Court
in Steltz and Brock addressed the consequence of a defendant’s failure to appear for a
trial that was timely under Rule 600. In contrast, the instant case presents a circumstance
where the trial court found a Rule 600 violation that predated Barbour’s failure to appear—
[J-22-2018] - 21
a violation wholly independent from and in no way caused by Barbour’s later absence
from trial. We conclude that this distinction is significant and, indeed, dispositive.
As set forth above, in assessing any period of delay under Rule 600, it is critical to
ascertain the cause of such delay. Stated in the most general terms, when the
Commonwealth causes delay, the Rule 600 clock continues to tick; when the defendant
causes delay, the clock stops. This causal relationship between a period of delay and
the actions of the parties is a cornerstone not only of the Rule 600 computation, but also
of longstanding constitutional speedy trial jurisprudence, as evidenced by the Barker
Court’s inclusion of “the reason for the delay” among the factors to be weighed when
considering a speedy-trial claim. See Barker, 407 U.S. at 530-31. In Steltz, this Court
stressed that the defendant’s initial trial date was timely, and that his rescheduled trial
facially lay beyond the Rule 600 run date due solely to his absconsion. In such a
circumstance, we deemed waiver of the defendant’s Rule 600 rights to be a suitable
consequence for the defendant’s misconduct. Notably, federal appeals courts have
applied a similar analysis when considering constitutional speedy-trial claims implicating
delays caused by a defendant’s unlawful flight or fugitive status. See, e.g., Cates v.
United States, 379 A.2d 968, 972 (D.C. Cir. 1977) (“[W]here the defendant’s unlawful
flight or hiding out is the reason for the delay in his trial, he is held to have waived his right
to a speedy trial.”) (emphasis added); United States v. Cartano, 420 F.2d 362, 364 (1st
Cir. 1970) (“Defendant cannot complain of any delay attributable to his flight or
unavailability.”) (emphasis added).
This Court has stressed that Rule 600 “was never intended to be used as a device
by which a defendant may escape responsibility for his actions.” Commonwealth v.
Guldin, 463 A.2d 1011, 1014 (Pa. 1983); see also Commonwealth v. Brightwell, 406 A.2d
503, 506 (Pa. 1979) (Opinion in Support of Affirmance) (“While Rule [600] is a shield to
[J-22-2018] - 22
protect defendants from undue procrastination in the commencement of proceedings
against them, we refuse to over-extend the protections afforded by that Rule in a manner
that would enable it to be used as a sword to allow the accused to benefit from his own
misconduct.”). Where, however, the Commonwealth violates Rule 600 before a
defendant causes additional delay, concerns relating to the possibility that a defendant
may seek to benefit from his own wrongdoing are not implicated. In this regard, we
approve of the reasoning that the Superior Court applied in Commonwealth v. Colon, 87
A.3d 352 (Pa. Super. 2014), to the extent that the court concluded that defense-caused
delays occurring after the expiration of the Rule 600 time period were irrelevant to the
prompt-trial analysis. See id. at 358 (reasoning that the “delays attributable to Appellant
occurred well after 365 days had already passed since the filing of the complaint, and
have no bearing on the Commonwealth’s failure to commence trial before the expiration
of the mechanical run date”).
In this case, by the time that Barbour failed to appear for trial, the dictates of Rule
600 already had been transgressed, and Barbour’s right to relief had vested. On this
point, Judge Bowes’ reasoning and interpretation of the Steltz waiver rule was sound:
Waiver of the rule-based right to a speedy trial is justified when a defendant
fails to appear for a date within Rule 600 for a simple reason: he could have
had a timely trial by appearing. . . . Here, the trial court has determined
[Barbour] was denied the right to timely trial, even if he had appeared in
October of 2004. All that remained for him to do was request dismissal.
Concurring Memorandum at 2-3.
We likewise agree with the trial court that, “[b]ecause the Rule 600 violations . . .
occurred before [Barbour] had absconded, the Commonwealth’s argument regarding
‘procedural gamesmanship’ is totally misplaced.” Trial Ct. Op., 4/2/2015, at 22. To be
sure, it would be absurd to permit a defendant to “game the system” by unlawfully
absconding from trial, then invoking the resultant delay as grounds for dismissal under
[J-22-2018] - 23
Rule 600. Steltz precludes precisely this type of “gamesmanship.” However, that is not
what Barbour did in this case. Barbour does not contend that he was deprived of a speedy
trial due to the delay arising from his failure to appear on October 18, 2004. Rather, he
argues that the trial on that date was untimely in the first instance, and without regard to
any subsequent delay. Although the Commonwealth suggests that Barbour seeks to
profit from his wrongdoing, and that to afford him relief would be to grant him a windfall,
it overlooks a countervailing consideration. The Commonwealth also may not benefit
from its own fault, and the dereliction of its duty to provide a speedy trial may not be
excused simply because Barbour happened not to appear for his untimely trial. To ignore
the Commonwealth’s prior failure to satisfy Rule 600, and to find that Barbour waived his
right to seek relief—thereby not only stopping the Rule 600 clock, but essentially breaking
it entirely—would be to grant the Commonwealth a windfall. This we will not do.
We acknowledge that there is some appeal to the Commonwealth’s argument that,
in order to ascertain a Rule 600 violation, a court must consider the merits of a Rule 600
motion, which a court should not entertain if the claim has been waived. However, the
Commonwealth’s proposed solution to this procedural quandary is to conclude that the
Steltz waiver rule applies categorically to all failures to appear for trial, without
consideration of whether the Commonwealth failed to satisfy its obligations under Rule
600 in the first instance. Although this would be a simple resolution, we will not sacrifice
a defendant’s right to a speedy trial for the sake of mere expedience. Rather, we hold
that, in order to avoid a determination that the Steltz waiver rule precludes relief, a
defendant in this circumstance simply may aver in his Rule 600 motion that his initial trial
date was untimely, without regard to any subsequent period of delay. He then must be
afforded an opportunity to prove that assertion. However, should the challenged trial date
appear facially timely, i.e. within 365 days from the filing of the criminal complaint, and
[J-22-2018] - 24
the complained-of delay clearly resulted from the defendant’s failure to appear on that
date, then the court may find that the defendant’s Rule 600 claim is waived pursuant to
Steltz.
Turning to the alternative suggestion that Barbour forfeited his right to seek relief
under Rule 600 by waiting nearly ten years to seek dismissal, we agree with Barbour that
Judge Bowes’ approach is foreclosed by the plain language of Rule 600. The rule
unambiguously provides that, when a defendant has not been brought to trial within the
time period set forth therein, “at any time before trial, the defendant’s attorney, or the
defendant if unrepresented, may file a written motion requesting that the charges be
dismissed with prejudice on the ground that this rule has been violated.” Pa.R.Crim.P.
600(D)(1) (emphasis added). After his arrest in September 2014, Barbour’s trial was
scheduled for October 20, 2014. Barbour moved for dismissal under Rule 600 on October
3, 2014. Accordingly, the timing of Barbour’s motion complied with the rule.
Judge Bowes may very well have been correct that the ten years that elapsed
while these cases remained pending may have caused ADA Carroll’s memory of the
proceedings in 2004 to fade. However, given ADA Carroll’s testimony regarding the
exceedingly informal nature of criminal proceedings in Washington County during the
relevant time period, and considering the apparent lack of sufficient recordkeeping on the
part of the prosecutor, one can hardly conclude that blame for the Commonwealth’s
inability to establish the procedural history of these cases lies solely with Barbour. If
Barbour originally had been scheduled for trial on some date before October 2004, as
Judge Bowes speculated, then the Commonwealth should have been able to produce
some manner of evidence to support that assertion. As this Court previously has
stressed:
It would be easy to maintain a diary book where the relevant dates in a given
prosecution could be promptly entered and checked against the Rule [600]
[J-22-2018] - 25
run date as a matter of course. Practicing lawyers must maintain docket
books to make sure that they appear in court on the right date, file pleadings
on time, complete discovery in a timely fashion, and do not run afoul of
statutes of limitation. No less is required of a properly administered district
attorney’s office. It is no less important for a prosecutor than for any other
attorney to maintain adequate records relating to the status of his cases.
Commonwealth v. Browne, 584 A.2d 902, 906 (Pa. 1990).
In sum, we conclude that the Steltz waiver rule is narrow in scope, and applies
only where a defendant fails to appear for a trial that complied with the requirements of
Rule 600. Where, as here, a Rule 600 violation is independent from and unrelated to a
defendant’s subsequent failure to appear, that violation is not cured by the defendant’s
absence. Two wrongs do not make a right, and a defendant’s failure to satisfy his
obligation to appear in court does not excuse the Commonwealth’s earlier failure to satisfy
its obligations under Rule 600.
The order of the Superior Court is reversed.
Chief Justice Saylor and Justices Baer, Todd, Donohue and Dougherty join the
opinion.
Justice Mundy did not participate in the consideration or decision of this case.
[J-22-2018] - 26