Com. v. Plowden, T.

J-S71016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TYSHAWN PLOWDEN
Appellee No. 143 WDA 2015
Appeal from the Order January 6, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0002528-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.
DISSENTING MEMORANDUM BY OTT, J.: FILED APRIL 08, 2016
I respectfully disagree with the majority’s decision that affirms the
order of the trial court granting Plowden’s Rule 600 motion to dismiss.
Specifically, I disagree with the majority’s conclusion that the
Commonwealth failed to demonstrate excusable delay to extend the Rule
600 run date. In my view, because the record reflects the Commonwealth
exercised due diligence in pursuing Plowden’s return under the Interstate
Agreement on Detainers (“IAD”), 42 Pa.C.S. § 9101 et seq., and the delay in
transferring Plowden from New York was occasioned by circumstances
beyond the control of the Commonwealth, I would conclude that the entire
period of the IAD process, commencing October 9, 2014, is excusable delay.
Therefore, I dissent.
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The record shows in June of 2014, while Plowden was in prison in
Cambria County, Plowden requested and was granted release on nominal
bail. N.T., 1/5/2015, at 11–12. Plowden would have been free to leave the
Cambria County Jail, but extradition proceedings had been instituted by New
York authorities. Id. at 12. The Commonwealth admitted it should have
known there were pending criminal charges against Plowden before
Plowden’s July 3, 2014, extradition hearing. N.T., 1/5/2015, at 29–30, 39.
See also id. at 12–13. However, the Commonwealth took no steps to stay
Plowden’s extradition to New York. Id. at 13. Thereafter, the
Commonwealth, upon realizing it would be necessary to bring Plowden back
for trial, immediately commenced communication with New York authorities
to effectuate Plowden’s return to Pennsylvania. Id. at 14–15.
I agree with the trial court that the Commonwealth waited until
October 9, 2014 to formally request Plowden’s return from New York. As
such, the time from July 3, 2014 to October 9, 2014 should run against the
Commonwealth. However, after October 9, 2014, the Commonwealth
worked steadily with New York authorities for Plowden’s transfer.
Detective Lia DeMarco of the Cambria County District Attorney’s Office
testified her initial telephone contact with New York was on July 3, 2014.
Id. at 15. She further detailed the numerous communications recorded in
her log, admitted as Commonwealth Exhibit 1, both before and after October
9, 2014, on which date she formally started the process under the IAD, 42
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Pa.C.S. § 9101 et seq. Id. at 15–16, 40. Detective DeMarco’s log and her
testimony reveal her persistent, ongoing efforts to effectuate Plowden’s
transfer from New York. See Commonwealth Exhibit 1.1
Following Detective DeMarco’s initiation of the IAD process on October
9, 2014, New York scheduled a hearing for December 10, 2014. Id. at 51–
52. However, “New York [authorities] got their signals crossed,” and instead
of holding an IAD hearing, there was an extradition hearing. Id. at 21. On
December 11, 2014, Detective DeMarco learned Plowden had refused to
waive extradition, and she would need to obtain a governor’s warrant
pursuant to the Uniform Criminal Extradition Act (UCEA), 42 Pa.C.S. §§
9121-9148. Id. at 41. She initiated the paperwork for the governor’s
warrant on December 12, 2014. Id.
Despite the governor’s warrant, testimony further revealed that
transfer was effectuated pursuant to the IAD. Id. at 42. Detective DeMarco
testified that on December 22, 2014, and December 29, 2014, the Cambria
County District Attorney’s Office overnighted IAD forms to Pennsylvania
authorities for transmission to New York. Id. at 42–43. Detective DeMarco
further testified she did not know when Cambria County was informed that
Plowden was available to be picked up from New York authorities because
____________________________________________
1
Commonwealth Exhibit 1 reflects Detective DeMarco’s contacts with New
York authorities after October 9, 2014, on the following dates: 10/17/2014,
10/20/2014, 10/23/2014, 10/29/2014, 11/13/2014, 11/20/2014,
12/10/2014, 12/11/2014, 12/12/2014.
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she was not there when the call came to confirm the transfer. Id. at 53.
She had gone on maternity leave on December 19, 2014. Id. at 19. She
testified that the call from New York to transfer Plowden came “after the
19th.” Id. at 54. She confirmed Cambria County deputies would pick up
Plowden “pursuant to the IAD based upon the materials that were sent out
on December the 29th [2014].” Id. at 43. Commonwealth counsel
represented Plowden was scheduled to be picked up in New York on January
7, 2015. Id. at 7.
Excusable delay is delay that occurs as a result of circumstances
beyond the Commonwealth’s control and despite its due diligence.
Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. 2007). The
Pennsylvania Supreme Court has reiterated that “to act with due diligence,
“prosecutors must do everything reasonable within their power to see that
the case is tried on time.” Commonwealth v. Bradford, 46 A.3d 693,
703–704 (Pa. 2012), citing Commonwealth v. Browne, 584 A.2d 902, 905
(Pa. 1990) (internal citation omitted).
Here, the Commonwealth initiated the formal IAD request on October
9, 2014, exercised due diligence throughout the IAD process, and had no
control over the delay by New York authorities in returning Plowden.
Accordingly, on this record, I would reverse the order of the trial court
dismissing the charges against Plowden with prejudice, as I would find no
violation of Rule 600. See e.g., Bradford, supra (dismissal not appropriate
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under Rule 600 when the Commonwealth acted with due diligence in relying
upon the judicial system to transfer documents in accordance with the Rules
of Criminal Procedure); see also Commonwealth v. Kubin, 637 A.2d
1025, 1027 (Pa. Super. 1994) (“[W]e recognize the Commonwealth cannot
force another jurisdiction to act[.]”).
Accordingly, very respectfully, I dissent.
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