Judges Opinions, — December 19, 2018 10:00 — 0 Comments

Commonwealth of PA vs. Stacy Hetrick No. CP-38-CR-0000291-2009

Criminal Action-Constitutional Law-Speedy Trial Rights-Delay-Bail-Fugitive Status-Reasonable Notice-Obligation to Appear-Due Diligence

Defendant, who was charged with Forgery via Criminal Complaint filed on January 9, 2009, was the subject of a bench warrant that was issued on May 21, 2009 when she failed to appear at Call of the List as directed and was apprehended on that bench warrant more than eight (8) years later on October 6, 2017, filed a Motion for Dismissal of the charge pursuant to Pa.R.Crim.P. Rule 600, asserting that the Commonwealth did not employ due diligence to locate her while she was a fugitive.

1. Pa.R.Crim.P. Rule 600(A)(2)(a) provides that a trial in a court case in which a written complaint is filed shall commence within 365 days from the date upon which the complaint is filed.
2. Rule 600(C) provides that periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth failed to exercise due diligence shall be included in the computation of the time within which trial must commence with any other periods of delay being excluded from the computation.
3. Delays of trial that are attributable to the defendant are excluded from computation for purposes of determining a defendant’s speedy trial rights.
4. Under most circumstances, delay caused by a defendant’s voluntary choice not to appear in court can be excluded from consideration of a defendant’s speedy trial rights.
5. In order for the period of a defendant’s unavailability to be excludable, the defendant must have reasonable notice of the obligation to appear and voluntarily must choose to abscond from the court’s jurisdiction.
6. When a defendant does not have reasonable notice of an obligation to appear, the Commonwealth is required to employ due diligence to locate the defendant. If the Commonwealth does not employ due diligence in that circumstance, the time of the defendant’s absence is not excludable.
7. Where the defendant is on bail, has notice of the obligation to appear and fails to do so, the concept that the Commonwealth must exercise due diligence in apprehending the defendant is misplaced in a speedy trial analysis.
8. In light of the fact that Defendant had actual notice of the charge against her and that her counsel had requested a continuance of trial and defense counsel had actual notice that the continuance had been granted and the Call of the List date was scheduled on May 21, 2009, Defendant had constructive notice of the obligation to appear on May 21, 2009 and voluntarily elected not to do so such that the time in excess of eight (8) years during which she was a fugitive directly is attributable to Defendant and is excludable for purposes of Defendant’s speedy trial rights.
L.C.C.C.P. No. CP-38-CR-0000291-2009, Opinion by Bradford H. Charles, Judge, February 8, 2018.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-291-2009

COMMONWEALTH OF PENNSYLVANIA v.
STACY HETRICK

ORDER OF COURT
AND NOW, this 8th day of February, 2018, upon review of the entire file, briefs submitted by both parties, and in accordance with the attached Opinion, the Defendant’s Motion for Dismissal Pursuant to Rule 600 of the Pennsylvania Rules of Criminal Procedure is respectfully DENIED. A copy of this Order is to be served upon the District Attorney of Lebanon County, the DEFENDANT’s attorney, and the DEFENDANT by certified mail, return receipt requested.

BY THE COURT:
BRADFORD H. CHARLES, J.

APPEARANCES

Sean C. Barrett, Esquire For Commonwealth of Pennsylvania
DISTRICT ATTORNEY’S OFFICE

Elizabeth Judd, Esquire For Defendant
PUBLIC DEFENDER’S OFFICE

OPINION BY CHARLES, J., February 8th, 2018
The DEFENDANT chose to abscond from the jurisdiction of this Court for eight (8) years, four (4) months and fifteen (15) days. During this entire period of time, she was subject to a Bench Warrant as a result of her failure to appear. Today, she argues that the charges against her should be dismissed because the Commonwealth did not employ due diligence to locate her during the pendency of her fugitive status. Because a due diligence analysis is not required when a defendant causes her own unavailability, we reject the DEFENDANT’s request to dismiss charges under Pa.R.Crim.P. 600.
I. PROCEDURAL BACKGROUND
The underlying acts on which the case is predicated occurred in November of 2008. A criminal complaint alleging Forgery was filed on January 9th, 2009. On February 12th, 2009, the DEFENDANT waived her preliminary hearing and was released on unsecured bail. On March 18th, 2009, DEFENDANT waived her arraignment. On April 23rd, 2009, Defense Counsel requested a continuance in order to assist another Public Defender on another case, which was granted. The case was continued to May 21st, 2009. On that date, DEFENDANT failed to appear for the Call of the List and a Bench Warrant was issued. Then, over eight (8) years later, DEFENDANT was apprehended on that bench warrant on October 6, 2017.
II. DISCUSSION
The relevant statute governing the constitutional requirement of a speedy trial is Pennsylvania Rule of Criminal Procedure 600. It states, in relevant portion:
(A) Commencement of Trial; Time for Trial
(1) For the purpose of this rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed…
(C) Computation of Time
(1) For purposes of paragraph (A), 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. Any other periods of delay shall be excluded from the computation.
Unsurprisingly, this statute has been subject to a significant amount of interpretation and the body of case law surrounding the prompt trial statute is enormous. Two fundamental cases of particular relevance, quoted often in other Rule 600 cases, are Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998) and Commonwealth v. Cohen, 392 A.2d 1327 (Pa. 1978).
Matis is the seminal speedy trial background case, which analyzed the predecessor to Rule 600, Pa.R.Crim.Proc. Rule 1100. Rule 1100 stated, in narrower, more specific terms than Rule 600:
(C) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant’s arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or the defendant’s attorney;
(ii) any continuance granted at the request of the defendant or the defendant’s attorney.
Matis synthesized:
“Thus, the term excludable time has a specific meaning pursuant to Rule 1100(c), which dictates that only delay imputed to the defense can constitute excludable time. See Commonwealth v. Cook, 676 A.2d 639 (Pa. 1996); Commonwealth v. Robinson, 446 A.2d 895 (Pa. 1982). Delays caused solely by the Commonwealth cannot constitute excludable time.” Commonwealth v. Matis, 710 A.2d 12, 16 (Pa. 1998).
In Matis, the Pennsylvania Supreme Court found that a long-pending appeal by the Commonwealth to the Superior Court was improperly excluded from the calculation of time by the Trial Court because such an appeal was attributable to the Commonwealth. Id.
In Cohen, the Court laid out one common situation, under Pa.R.Crim.Proc. 1100(C)(3)(i), where a delay was attributable to the defendant’s unavailability. In that case, the Pennsylvania Supreme Court, overturning both the Superior and Trial Court, ruled for the Commonwealth, the Court emphasized
“where a defendant undertakes to accept the status of bail during the pendency of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action, upon reasonable notice.” Id at 1330. 1
Together, Matis and Cohen stand for the following propositions:
• Delays of a trial that are attributable to the defendant are excluded from computation for purposes of determining a defendant’s speedy trial rights.
• Under most circumstances, time caused by a defendant’s voluntary choice not to appear in Court can be excluded from consideration of a defendant’s speedy trial time.
• In order for the period of the defendant’s unavailability to be excludable, the defendant must have reasonable notice of his/her obligation to appear and he/she must voluntarily choose to abscond from the jurisdiction of the Court.
• When a defendant does not have reasonable notice of his/her obligation to appear, the Commonwealth is required to employ due diligence to locate him/her. If the Commonwealth does not employ due diligence, the time of the defendant’s absence is not excludable.
Two less fundamental cases referenced in each Party’s brief apply the Cohen standard to a set of facts relatively similar to the facts of this case. The Defense cites Snyder, whereas the Prosecution cites Baird as examples of similar fact patterns under which the burden for a delay of trial was shifted off and on the Defendant, respectively.
Snyder involved a Defendant who had waived his Preliminary Hearing and been released on bail without a trial date. This satisfied the first part of Cohen “where a defendant undertakes to accept the status of bail during the pendency of court proceedings”. However, the court in Snyder determined that the second Cohen qualifier, “upon reasonable notice”, was absent. Commonwealth v. Snyder, 421 A.2d 438, 440 (Pa. Super. 1980); Commonwealth v. Cohen, 392 A.2d 1327 (Pa. 1978). In analyzing whether notice was sufficient, the Snyder court relied on another case: “Reasonable notice under Cohen includes personal service of written notice to the defendant, oral notice to the defendant and oral or written notice to defendant’s attorney of record.” Snyder at 440; quoting, Commonwealth v. Bundridge, 407 A.2d 406, 412 (1979). In Snyder, although the Commonwealth had sent notice to the Defendant of their trial date via certified mail, it was returned to sender. Thus, the Commonwealth had reason to know it had not been received. Id at 439. This shifted the burden back onto the Commonwealth to show due diligence. Id.
Baird involved similar facts. There, a Defendant was arrested, waived his Preliminary Hearing, and was released on bail without a trial date. Commonwealth v. Baird, 919 A.2d 258 (Pa. Super. 2007). However, defense counsel was made aware of an upcoming court date at an arraignment which the Defendant did not attend. Id at 261. The Superior Court ultimately stated:
“We hold that it is the responsibility of defense counsel to advise a defendant of court proceedings requiring the defendant’s presence. Where defense counsel has actual notice of a proceeding and fails to so inform his or her client, the onus and consequences of such failure fall upon the defendant. The defendant’s failure to appear at the court proceeding, therefore, renders the defendant unavailable during the entire period between the date of the proceeding and the defendant’s subsequent apprehension by police.” Id.
The facts of this case, as they relate to the issues at hand, are essentially identical to Baird. The Defendant had actual knowledge of the charges against them. The Defendant was on bail as of February 12, 2009. Both Defense Counsel and the Defendant had actual notice that a continuance of trial was requested. See Motion for Continuance (4/1/09). It is not clear if the Defendant received actual notice that the continuance request had been granted. Defendant’s Brief states, (its entire argument on this issue) “the Commonwealth failed to establish that Hetrick had notice of the May Court date. In this matter, the continuance was requested by Motion. The Commonwealth presented no evidence to prove the Motion was served upon Hetrick.” Defendant’s Brief in Support of Her Motion to Dismiss Pursuant to Rule 600 at 5 (1/2/18). The Defendant’s argument presupposes a standard that does not exist. As the Superior Court stated in Snyder:
“It remains for us to determine whether… defendant was in fact properly notified… we do not interpret it as requiring actual notice to appear. However, we also do not interpret Cohen as automatically allowing an exclusion… whenever the Commonwealth employs a reasonable form of notice.” Snyder at 441.
In Snyder, there was no indication that defense counsel had notice of the date of trial. Rather, the Commonwealth knew that the “reasonable notice” (certified mail) they had sent had not reached its target, and thus failed to rise to “proper notice” by itself. Id.
In this case, like in Baird, Defense Counsel’s explicit knowledge of the Court Date constitutes constructive notice to the DEFENDANT. Baird at 261. Furthermore, the circumstantial facts surrounding the notice provided in this case distinguish it from Snyder.
Even if it is true that the DEFENDANT in this case may not have received actual notice of the new trial date, she did know about the charges and she did know about her attorney’s request for a continuance. Moreover, the Commonwealth did not have the notice returned to sender. On the contrary, the motion for continuance is indicated to have been carbon copied to a “Stacy Hetrick”, and the Clerk of Courts has affixed a stamp indicating “PURSUANT TO Pa.R.Crim.P. 114 All parties are hereby notified this date: 4-2-09”. Order (4/2/2009). Furthermore, Defense Counsel indicated at the November 22, 2017 hearing that they had in fact mailed notification of the new date to the DEFENDANT. Commonwealth’s Brief in Opposition to Defendant’s Motion to Dismiss at 9. The more likely conclusion, and the one this Court has reached, is that the DEFENDANT knew about her legal obligations, and voluntarily chose to avoid them. This is precisely the type of evil that Cohen and its progeny are calculated to prevent.
The remainder of Defendant’s Brief cites case law which is not germane to the issue. Inter alia Commonwealth v. Newman, 555 A.2d 151, 155 (Pa. Super. 1989); Commonwealth v. Branlett, CP-38-CR-1293-2007 (Lebanon Court of Common Pleas, J. Charles); and Commonwealth v. Booze, 953 A.2d 1263, 1273 (Pa. Super. 2008). These cases analyze due diligence within the context of the Commonwealth’s efforts to locate a Defendant who did not voluntarily abscond from a known trial date. 2 A due diligence analysis is not appropriate when the delay is attributable to a defendant:
“Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive is misplaced in a speedy trial analysis. To rule otherwise would permit a defendant who intentionally absented himself from a scheduled court hearing to have the charges against him dismissed if the Commonwealth’s efforts to locate him did not measure up to a court’s standard of due diligence. Such a result is obviously absurd.” Cohen, at 1331 (emphasis added).
III. CONCLUSION
At the outset, because criminal charges were filed on January 9, 2009 the 365 day limit imposed by Pa.R.Crim.Proc 600 would have run to January 10, 2010. We add 28 days to that deadline for the time between April 23, 2009, the original date of the call of the list, and May 21, 2009, the new date, as a result of the Defendant’s granted request for continuance. On May 21, 2009, the DEFENDANT failed to appear at the Call of the List and was a fugitive until October 6, 2017. This was eight (8) years, four (4) months, and fifteen (15) days directly attributable to the Defendant and therefore also added to the January 10, 2010 deadline to arrive at a new deadline date of July 23, 2018.

1 Although Rule 600 changed the language of Rule 1100 in its own section (C), these two cases are still cited regularly as establishing certain common situations under which a delay is attributable to the Commonwealth or a Defendant. See Commonwealth v. Baird, 919 A.2d 258 (Pa. Super. 2007). The changes from Rule 1100 to Rule 600 appear to narrow the Commonwealth’s speedy trial burden on grounds not implicated here. See Commonwealth v. Ramos, 936 A.2d 1097 (Pa. Super. 2007) (where rule 600(C)(1)(A) was interpreted to mean that court congestion was not a source of delay directly attributable to the Commonwealth and therefore did not toll the statute if the Commonwealth exercised due diligence during that period.)

2 The portion of Snyder cited by the Defense “the mere issuance of a bench warrant does not establish due diligence” is from the subsequent analysis of 1100(C)(1) which the Court turned to after deciding the 1100(C)(3)(i) (Cohen) issue against the Commonwealth. Snyder at 442.

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