Commonwealth v. Hawk

DEL SOLE, Judge:

This is an appeal from a Judgment of Sentence entered following Appellant’s conviction of robbery, theft, receiving stolen property, simple assault, possessing an instrument of crime and unlawful restraint. We determine today that this sentence must be vacated and the underlying convictions reversed because Appellant’s constitutional right to a speedy trial was violated.

Appellant was arrested on March 28, 1984 and promptly incarcerated shortly after he robbed a restaurant employee at gunpoint. The 180 day mechanical run date for purposes of compliance with Pa.R.Crim.P. 1100 was September 14, 1984. On August 23, 1984, the Commonwealth filed a petition for extension of time alleging the unavailability of the trial judge. On October 10, 1984, shortly after his run date had passed, Appellant filed a petition to dismiss the charges against him based upon a violation of Rule 1100. No action regarding the petitions was taken until July 8, 1985 when the court held a hearing on the Commonwealth’s extension petition and Appellant’s petition to dismiss. The date on which the hearing was finally held was 478 days after Appellant’s arrest and 298 days after the expiration of the 180 day period set forth in Rule 1100. At the close of the hearing the court granted the Commonwealth’s Petition for extension and denied Appellant’s request for dismissal of the charges. Trial was held on June 5, 1986 following further postponements which are not pertinent to our review of Appellant’s claim.

Appellant objects to the delay in bringing his case to trial which occurred following the Commonwealth’s request for an extension. He contends that the failure to consider the Commonwealth’s request for nearly 300 days resulted in a violation of Rule 1100 and a denial of his constitutional right to a speedy trial.

Rule 1100 was adopted by our supreme court pursuant to its supervisory powers and was designed to be an administrative method which would seek to protect the constitutional guarantee of a speedy trial for a criminal defendant. Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346 (1986); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). At the relevant time period, the pertinent part of Rule 1100 provided:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

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(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.

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(3) Such motion shall set forth the facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period, despite due diligence by the Commonwealth and, if the delay is due to court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.

Although the 180 day period of Rule 1100 was set forth to “act as a stimulant to those entrusted with the responsibility of managing court calendars”, Commonwealth v. Hamilton, 449 Pa. 297, 308, 297 A.2d 127, 133 (1972), it was not intended to be inflexible. Commonwealth v. Mayfield, supra. The Rule itself, and caselaw which has interpreted it, have permitted certain conditions to justify an extension of the 180 day time period in which an accused must be brought to trial. A realistic approach has been adopted which has recognized delays attributable to court administration where the record shows:

(1) the due diligence of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Commonwealth v. Mayfield, 469 Pa. at 222, 364 A.2d at 1349-1350.

The delay which is of concern in the instant case was found to be justified by the trial court because of such scheduling problems. The difficulties with the court’s calendar were cited as justification for both the Commonwealth’s inability to try Appellant within the 180 day period and the court’s inability to hold a hearing on the Commonwealth’s extension petition within that same time frame. At the July 8th hearing Appellant represented himself and was informed by the court:

In this courtroom under the individual calendar cases assigned to this Court, the cases must stay in this courtroom except for some slight exceptions that is when I recuse myself because of an appearance of unfairness or something like that. And since it must stay in my Court then as the Assistant District Attorney pointed out, we call cases in the earliest run dates first. This case is now listed for today because it was the earliest run date consistent with the calendar that I have.

The Commonwealth has exercised due diligence by filing a Petition to Extend which would authorize us to have a hearing today as to whether or not it should be extended.

The Commonwealth has no control over when cases are listed in this courtroom. They too are on the same notice that defense are. We call them in turn and if they’re not ready we take the appropriate action as we do with the defense so that under the circumstances we are now in September of ’84 cases. This is July of ’85 so that in effect although it is 10 months behind it is the earliest possible date that this court could hear your case.

N.T. 7/8/85 at 24-25.

The Court also remarked on the “gamble” which arises when the hearing on the Commonwealth’s petition is not held within the 180 day period.

THE COURT: Well, what the Court says, they can gamble but if I denied their Petition to Extend then they’re out of the ballgame today but they have a right to gamble and that is what they have done. They have gambled that I was going to — see, we can’t even take time to hear all of the Petitions to Extend immediately because while we’re hearing the Petitions to Extend some poor soul is sitting in jail saying they’re not trying me in 180 days.

THE DEFENDANT: Mine is 477 days, that is ridiculous.

THE COURT: That is your opinion, however, I suggest that you read, if you want to take this down, Commonwealth versus Crawley ... where the Court said that where the Commonwealth has exercised due diligence and the Court has made reasonable efforts to bring it to trial, then that is satisfactory.

So, I will grant the Commonwealth’s Petition to Extend and extend to July 31st.

I will deny your Petition to Discharge.

N.T. 7/8/85 at 32-38.

The “gamble” of which the court spoke has been frequently identified by the courts. In Commonwealth v. Yant, 314 Pa.Super. 442, 448-449, 461 A.2d 239, 242-243 (1983) this court cited to an earlier decision and stated:

As footnote 2 in Metzer explains: ‘The risk is obvious: if the court denied the extension after the period had run, the Commonwealth is prevented from bringing the accused to trial. If the petition is denied promptly, the Commonwealth may nonetheless be able to try the accused within the period____’ This repeated admonition

applies to Yant’s case, for the hearing court was put in the position of having to grant the Petition to Extend or dismiss the accused. This circumstance inevitably puts pressure on the hearing court to grant the petition, citing Commonwealth v. Metzger, 240 Pa.Super. 712, 360 A.2d 227 (1977).

In Yant a four month delay occurred between the time the Commonwealth filed its petition to extend and the date on which a hearing was held on the petition. At the Commonwealth’s request the hearing date was postponed on five occasions. One such continuance was not accompanied by an excuse; two were due to the district attorney’s vacation schedule; one was necessitated by the judge’s illness, and another due to the fact that the case was not entered on the court list. In view of these explanations, the repeated continuances and the totality of the circumstances, the Yant court ruled that the appellant had to be discharged based on a violation of Rule 1100.

The Commonwealth asserts that the instant case differs from those in which there is an unexplained delay or the Commonwealth fails to appear. The Commonwealth contends that Appellant is not entitled to be discharged because he has not demonstrated prejudice and because the delay at issue in this case was necessitated, as stated by the trial court, due to a congested court docket which would not permit an earlier hearing date. In support of this position the Commonwealth cites to the decision referred to by the court at the July 8th hearing, Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983).

Although the Crowley decision further confirmed that Rule 1100 was not to be unbending where a crowded criminal docket necessitated a delay, it is important to note that the supreme court did not grant a blanket exception for judicial delay and rule that any amount of delay will be sanctioned where that delay is caused by scheduling difficulties. The Crowley court stated:

Rule 1100 should not be construed to require Common Pleas Court with backlogged criminal dockets to devote all their administrative and judicial resources to guarantee that every defendant is tried within the period prescribed by the Rule. It should be sufficient for the court to establish that it has devoted a reasonable amount of its resources to the criminal docket and that it scheduled the criminal trial at the earliest possible date consistent with the court’s business. While the trial court may be required to rearrange its docket, if possible, when judicial delay has caused a lengthy postponement beyond the period prescribed by Rule 1100, or one that implicates the constitutional right to a speedy trial, it should not be required to do so to avoid a delay of under 30 days as here.

Id. at 402-403, 466 A.2d at 1014.

In a footnote to this paragraph, the court added:

There is a qualitative difference in permitting congestion to excuse short delays. Short delays do not seriously implicate a defendant’s Sixth Amendment right to a speedy trial under Barker v. Wingo nor do they provide a disincentive for states to remedy congestion.

Id. at 403 n. 9, 466 A.2d at 1014 n. 9.

Thus, while delays caused by a crowded criminal docket will be permitted and will justify the denial of a motion to dismiss under Rule 1100, lengthy postponements past the run date may result in a violation of the accused’s speedy trial rights. The delay in this case is clearly in excess of the 30 days mentioned in the Crowley decision and in our view cannot be labeled as a “short delay.” Here the hearing was not held on the Commonwealth’s Petition to Extend and Appellant’s Petition to Dismiss until 298 days after the expiration of the 180 day period. This was 478 days after Appellant was first charged with criminal conduct and incarcerated. In view of the length of the delay we will next examine its implications on the Appellant’s constitutional right to a speedy trial.

While Rule 1100 is designed to aid the implementation of the constitutional right to a speedy trial, the constitutional guarantees continue to provide a separate basis for asserting a claim of undue delay in appropriate cases. Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). Violation of such a right may be claimed under either the Sixth Amendment to the United States Constitution, or Article I, Section 9 of the Pennsylvania Constitution. In either event, the constitutional right to ensure that undue delay does not postpone trial protects both the accused and the general public. The public’s interest in the prompt disposition of criminal trials is to ensure that the means of proving the charge are preserved, the deterrent effect of prosecution and conviction are evident, and to avoid, in some cases, an extended period of pretrial freedom by the defendant during which time other crimes may be committed or witnesses intimidated. Commonwealth v. Mayfield, supra. Likewise an accused looks toward the protection offered by the constitutional guarantee to a speedy trial to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that a lengthy delay will impair the defense. Commonwealth v. Kirk, 220 Pa.Super. 115, 283 A.2d 712 (1971).

In analyzing a claimed violation of constitutional speedy trial rights a balancing test first enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is to be applied. This test which weighs the conduct of both the prosecution and the defendant consists of four factors. The first consideration is the length of the delay. Delay which is “presumptively prejudicial” acts as a “triggering mechanism” for further inquiry. “It then becomes necessary to engage in the 'difficult and sensitive’ process of balancing against the delay the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant resulting from the delay.” Commonwealth v. Sheeley, 230 Pa.Super. 160, 164, 326 A.2d 574, 576 (1974), citing Barker v. Wingo, supra.

Although the Court in Barker v. Wingo found the length of the delay to be critical, it did not hold that the right can be quantified into a specified number of days or months. Instead, the court ruled that the states were free to prescribe a reasonable period of time in which to bring an accused to trial. Our supreme court in Rule 1100 has set that time period, at 180 days. Appellant was not tried within that time span and the delay beyond the 180 day period, in which Appellant awaited a decision on the Commonwealth’s petition to extend the time for commencement of trial, was substantial (298 days). In our view, this time period is sufficient to trigger further inquiry.

The next factor to be considered is the reason for the delay. In this case the responsibility for the delay rested with the Court and the Commonwealth and could not in any way be attributed to Appellant. The trial court clearly determined that the reason for the delay was due to the crowded criminal docket. While such a delay cannot be viewed as critically as one which was deliberate and intended to prejudice the defense, it cannot be ignored because it remains the responsibility of the government.

The lengthy delay in this case, coupled with Appellant’s lack of responsibility for it, must also be considered in light of the fourth factor: whether the accused made a timely assertion of his speedy trial rights. In this case such a claim was timely made. Less than one month after the run date Appellant filed a Motion to Dismiss; and, Appellant continued to pursue this claimed constitutional violation at the July 8, 1985 hearing.

The fourth factor, prejudice, is contested by the Commonwealth. It maintains that Appellant suffered no prejudice because he requested later continuances and because he was given credit on his sentence for the time he was incarcerated prior to trial.

First, it must be mentioned that “Barker v. Wingo, expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.” Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183 (1973). Each factor set forth by the Court in Barker v. Wingo must be considered and weighed together. None of the final three factors, including possible prejudice to the appellant, is either necessary or sufficient to conclude that an accused was deprived of a speedy trial.

Secondly, we find that Appellant was indeed prejudiced as a result of his pretrial incarceration. There is no claim in this case that Appellant was incarcerated on an unrelated charge; rather, the record indicates that Appellant remained incarcerated for 478 days awaiting the court’s consideration of the Commonwealth’s request to extend the time for trial. And, while Appellant was ultimately convicted of the charges brought against him and sentenced, with credit given for time served, this fact does not lessen the anxiety he most certainly experienced while awaiting his fate. As noted in Commonwealth v. Williams, 457 Pa. 502, 507, 327 A.2d 15, 17 (1974), “[I]t would be pure sophistry to argue that his delay did not cause the accused and his family severe anxiety.” We must also ask what possible remedy could justly be found if Appellant had ultimately not been convicted of the crimes charged. We do not believe that employing the Commonwealth’s hindsight evaluation is appropriate because it does not serve to further the purpose of the speedy trial rule. Finally, we reject the Commonwealth’s assertion that our decision must turn on the fact that Appellant made later requests to postpone trial. Such information is irrelevant to an examination of the delay at issue.

Upon balance we conclude that in light of the length of the delay, the Appellant’s prompt affirmative assertion of his speedy trial rights, the Appellant’s lack of responsibility for the delay and the fact that Appellant was incarcerated during the period at issue, the Appellant was denied his constitutional right to a speedy trial.

Accordingly, we vacate Appellant’s conviction and sentence. Jurisdiction is relinquished.

CIRILLO, President Judge, and TAMILIA, J., file dissenting statements. JOHNSON, J., files a dissenting opinion joined by BROSKY, J.