Commonweath of Pennsylvania v. Robert Aaron Delcarpio

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                             :

PENNSYLVANIA                                         :

                                                                        :           No. CP-38-CR-0000584-2010

            v.                                                         :

                                                                        :

ROBERT AARON DELCARPIO                :

 

ORDER OF COURT

AND NOW, to wit, this 11^th day of May, 2011, the Clerk of Courts of Lebanon County is hereby directed to transmit the record of the above-stated case, together with this Order and the attached Memorandum Opinion, to the Pennsylvania Superior Court as soon as possible.

                                                                        BY THE COURT:

 

                                                                        ____________________________, P.J.

                                                                        John C. Tylwalk

 

                                                                                   

____________________________, J.

                                                                                    Samuel A. Kline

                                                                                   

 

 

____________________________, S.J.

                                                                                    Robert J. Eby

 

RJE/jw

pc:       District Attorney (Interoffice Mail)

Greer H. Anderson, Esq. (Regular Mail at 411 Cumberland Street, Suite 3, Lebanon, PA  17042)

             

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                             :

PENNSYLVANIA                                         :

                                                                        :           No. CP-38-CR-0000584-2010

            v.                                                         :

                                                                        :

ROBERT AARON DELCARPIO                :

 

APPEARANCES:

 

DAVID J. ARNOLD, JR., ESQUIRE                     For the Commonwealth

District Attorney

 

GREER H. ANDERSON, ESQUIRE                                  For Defendant

 

MEMORANDUM OPINION BY TYLWALK, P.J., KLINE, J., AND EBY, S.J., MAY 11, 2011:

 

Defendant has filed a Notice of Appeal to the Pennsylvania Superior Court from the judgment of sentence imposed on December 22, 2010.  This Memorandum Opinion is offered pursuant to the requirements of Pa.R.A.P. Rule 1925(a).

On October 3, 2008, Detective Jason F. Cleck of the Lebanon County Detective Bureau filed a Criminal Complaint against Defendant charging Defendant with numerous theft-related offenses resulting from Defendant’s alleged withdrawals of funds from a bank account of the Lebanon County Clerk of Courts between May 13, 2008 and July 31, 2008.  Approximately one (1) week after the Criminal Complaint was filed, Cleck discovered that Defendant was incarcerated at a correctional facility in Rikers Island, New York, awaiting disposition of outstanding criminal charges in New York State.  Cleck immediately transmitted a summons relating to this case to Defendant at the Rikers Island facility.  Cleck received notification from the Queens County District Attorney’s Office that the New York State charges were resolved in December of 2009.  Cleck immediately applied for an arrest warrant, which was issued on January 6, 2010 and transmitted to New York State.  It appears that Defendant was in the process of being transferred from the Rikers Island facility to the Auburn Correctional Facility, where he would be serving the sentence of imprisonment imposed on the New York charges in December of 2009.  By letter dated February 9, 2010, the Auburn Correctional Facility notified the Lebanon County District Attorney’s Office of Defendant’s request for trial on the within charges. The Lebanon County Sheriff’s Department transported Defendant to Lebanon County on March 24, 2010, where he was preliminarily arraigned on the within charges.

Following Defendant’s waiver of his preliminary hearing, a Criminal Information was filed on May 10, 2010 charging Defendant with fourteen (14) counts of Criminal Use of Communication Facility and one (1) count each of Theft by Deception, Receiving Stolen Property, Unlawful Use of Computer and Other Computer Crimes, Computer Theft and Computer Trespass.[1]  On June 1, 2010, Defendant filed a Motion to Dismiss the charges on the basis that the Commonwealth violated Pa.R.Crim.P. Rule 600 by failing to bring his case to trial within 365 days of the filing of the Criminal Complaint.  On August 11, 2010, after hearing before Judge Samuel A. Kline of this Court, the Court denied Defendant’s Motion to Dismiss.  On August 20, 2010, at the request of Defendant, Attorney Judd filed a Request to Withdraw as counsel.  On September 1, 2010, after hearing, the Court continued Attorney Judd’s representation of Defendant.

On September 22, 2010, Greer H. Anderson, Esquire, entered his appearance on Defendant’s behalf.  On November 12, 2010, Defendant filed a second Motion to Dismiss the charges, this time alleging that the Commonwealth failed to bring him to trial within the time required by the Interstate Agreement on Detainers Act (“IAD”), 42 Pa.C.S. § 9101 et seq.  Defendant’s Motion to Dismiss was scheduled for hearing on November 17, 2010, at which time Defendant filed an Amended Motion to Dismiss.[2]  After hearing before Senior Judge Robert J. Eby of this Court, the Court denied Defendant’s Motion to Dismiss on November 17, 2010.

On November 23, 2010, Defendant entered a negotiated guilty plea in exchange for the amendment of the charges in this case to one (1) Theft offense graded as a misdemeanor of the first degree and the imposition of a sentence of time served if Defendant paid all restitution.  On December 22, 2010, President Judge John C. Tylwalk sentenced Defendant consistent with the terms of his guilty plea to a minimum sentence of time served (from March 24, 2010 to December 22, 2010) to a maximum sentence of two (2) years’ less one (1) day imprisonment and directed Defendant’s immediate eligibility for parole consideration.  A Post Sentence Colloquy was lodged at the time of Defendant’s sentencing wherein Defendant acknowledged verification of his appellate rights and the time in which those rights were required to be exercised.  Defendant did not file Post Sentence Motions.  On January 18, 2011, Defendant was paroled on this charge to the State of New York.

On January 24, 2011, Defendant filed a pro se Notice of Appeal to the Pennsylvania Superior Court from the judgment of sentence imposed on December 22, 2010.  On February 11, 2011, we directed Defendant to file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. Rule 1925(b) no later than twenty-one (21) days from the date of the entry of the Order on the docket.[3]  On February 18, 2011, Attorney Anderson filed a Concise Statement of Errors Complained of on Appeal on Defendant’s behalf raising the following allegations of error:

1.  The Court erred by denying Defendant’s Motion to Dismiss the charges based upon a violation of Rule 600; and

 

2.  The Court erred by denying Defendant’s Amended Motion to Dismiss the charges based upon a violation of the IAD.

 

Before addressing the allegations of error raised by Defendant in his Concise Statement, the timeliness of Defendant’s Notice of Appeal warrants some discussion.  Jurisdiction is vested in the Pennsylvania Superior Court upon the filing of a timely notice of appeal.  Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007), citing Commonwealth v. Green, 862 A.2d 613, 615 (Pa.Super. 2004).  A direct appeal in a criminal proceeding lies from the judgment of sentence.  Patterson at 497, citing Commonwealth v. Preacher, 827 A.2d 1235, 1236 n. 1 (Pa.Super. 2003).  Pa.R.A.P. Rule 903(c)(3) provides that when no post sentence motion is filed a notice of appeal must be filed within thirty (30) days of the date of the imposition of sentence in open court.

Defendant was sentenced on December 22, 2010.  From that date, Defendant had thirty (30) days, or until January 21, 2011, to file a timely Notice of Appeal to the Pennsylvania Superior Court.  Defendant’s Notice of Appeal was not filed until January 24, 2011, one (1) day after the permissible time frame for the presentation of a timely Notice of Appeal had expired.[4]  We recognize that Defendant dated the Notice of Appeal January 21, 2011, Defendant was incarcerated and a notice of appeal in that situation is deemed filed upon the date when it was delivered to prison officials from the Lebanon County Correctional Facility for mailing or placed in the mailbox of the Lebanon County Correctional Facility.  However, the date of January 23, 2011 is written above the closure area of the envelope in which the Notice of Appeal was transmitted to this Court, thereby suggesting that Defendant sealed the envelope and submitted it for mailing at the Lebanon County Correctional Facility on January 23, 2011, one (1) day after the time for the presentation of a timely notice of appeal had expired.[5]  We note that both the written guilty plea colloquy and written post sentence colloquy executed by Defendant, both of which are part of the record of this case, specifically advised Defendant that he was required to file an appeal to the Pennsylvania Superior Court no later than thirty (30) days after the date of his sentencing and advised Defendant of the procedures for filing an appeal, as well as his right to counsel free of charge on appeal.  Despite receiving notification that a notice of appeal must be filed no later than thirty (30) days after the date of sentencing, notification that Defendant affirmed was reviewed with him by his counsel at least two (2) times before  his sentencing, the Pennsylvania Superior Court may conclude that Defendant failed to file his Notice of Appeal in a timely manner.

When a notice of appeal is not timely filed, the Pennsylvania Superior Court lacks jurisdiction to hear the appeal.  Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa.Super. 2007), citing Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.Super. 2005).  If the Pennsylvania Superior Court lacks jurisdiction over an appeal, the appeal must be quashed.  Wrecks at 1289, citing Commonwealth v. Dreves, 839 A.2d 1122, 1129 (Pa.Super. 2003).  If the Pennsylvania Superior Court determines that Defendant’s Notice of Appeal was not timely filed, the Pennsylvania Superior Court lacks jurisdiction over the appeal, and it must be quashed.

However, even if the Pennsylvania Superior Court finds that Defendant’s Notice of Appeal is timely, Defendant waived the ability to challenge the rulings made on his Motions to Dismiss by virtue of the entry of his guilty plea.  A plea of guilty effectively waives all non-jurisdictional defects and defenses except challenges to the validity of the guilty plea and the legality of the sentence imposed.  Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa.Super. 1989), citing Commonwealth v. Coles, 530 A.2d 453, 457 (Pa.Super. 1987).

With regard to the Motion to Dismiss premised upon a Rule 600 violation, it is only if a defendant demonstrates that he did not knowingly waive his right to raise that challenge by pleading guilty and that the Rule 600 violation induced him to enter his guilty plea that such a challenge may survive the entry of a guilty plea.  Gibson at 1242, citing Commonwealth v. Harris, 424 A.2d 1242, 1244 n. 2 (Pa. 1981).  In the guilty plea colloquy executed by Defendant, Defendant specifically affirmed under oath that he understood that by pleading guilty he was giving up his right to present any pretrial motions for consideration to this Court or a higher court in the event those motions were presented and denied.  Defendant also swore in that colloquy that he realized that by pleading guilty, he may lose the right to complain on appeal about rulings that this Court previously made in his case.  The record belies any assertion that Defendant did not understand that he forfeited the ability to assert on appeal any error with regard to our disposition of either of his Motions to Dismiss by pleading guilty.  Moreover, Defendant makes no allegation that any violation of Rule 600 or the IAD induced him to plead guilty, nor does the record reveal any facts supporting such a proposition.  For these reasons, Defendant waived the ability to challenge our denials of his Motions to Dismiss on appeal.

However, even if it is determined that Defendant’s Notice of Appeal was timely filed and Defendant preserved the allegations of error he now wishes to litigate on appeal, the Court appropriately denied both of the Motions to Dismiss.  In his Concise Statement, Defendant first argues that we erred by denying his Motion to Dismiss premised upon a violation of Rule 600.  With that Motion, Defendant argued that the Criminal Complaint in this case was filed on October 3, 2008 and the Commonwealth violated Rule 600 by failing to bring his case to trial within 365 days of the date of the Criminal Complaint, or by October 3, 2009.  While conceding the fact that he was incarcerated in New York State on unrelated, pending charges during this time, Defendant nonetheless submitted that the Commonwealth failed to prove that it acted with reasonable diligence in attempting to return him to Pennsylvania for trial within the time required by Rule 600.

The standard of review for an appellate court reviewing a trial court’s ruling on a Rule 600 challenge is whether the trial court abused its discretion.  Commonwealth v. McNear, 852 A.2d 401, 404 (Pa.Super. 2004), citing Commonwealth v. Bowes, 839 A.2d 422, 424 (Pa.Super. 2003).  Judicial discretion requires action in conformity with the law based upon the facts and the circumstances presented to the trial court at a hearing.  Commonwealth v. Booze, 947 A.2d 1287, 1289 (Pa.Super. 2008), citing Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa.Super. 2007).  In so ruling, the appellate court must view the facts in the light most favorable to the prevailing party.  McNear at 404, citing Commonwealth v. Wallace, 804 A.2d 675, 677 (Pa.Super. 2002).

Additionally, the reviewing court must be cognizant of the dual purpose of Rule 600.  Booze at 1289, citing Ramos at 1100.  Rule 600 serves two (2) equally important functions:  (1) the protection of the speedy trial rights of the accused; and (2) the protection of society.  Id.  The administrative mandate of Rule 600 was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.  Id.  As long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of the accused, Rule 600 must be construed in a manner consistent with society’s right to punish and to deter crime.  Id.

Rule 600[6] provides, in relevant part:

“(A)(3) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.

 

***

(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 600;

 

(3) such period of delay at any stage of the proceedings as results from:

 

(a) the unavailability of the defendant or the defendant’s attorney;

 

(b) any continuance granted at the request of the defendant or the defendant’s attorney.”

 

With regard to the issue of the unavailability of the defendant, the Comment to Rule 600 is instructive and provides, in relevant part:

“Under paragraph (C)(3)(a), in addition to any other circumstances precluding the availability of the defendant or the defendant’s attorney, the defendant should be deemed unavailable for the period of time during which the defendant contested extradition, or a responding jurisdiction delayed or refused to grant extradition; or during which the defendant was physically incapacitated or mentally incompetent to proceed; or during which the defendant was absent under compulsory process requiring his or her appearance elsewhere in connection with other judicial proceedings.”

 

Incarceration in another state does not automatically render a defendant unavailable as contemplated by Rule 600(C)(3)(a).  Commonwealth v. Kubin, 637 A.2d 1025, 1026 (Pa.Super. 1994).  When a defendant is incarcerated in another state, a defendant is unavailable only if the delay in returning him to this Commonwealth is due to the other state.  Id.  The Commonwealth must exercise due diligence in attempting to return the defendant for trial.  Kubin at 1026, citing Commonwealth v. Lloyd, 535 A.2d 1152, 1160 (Pa.Super. 1988).  A lack of due diligence on the part of the Commonwealth will render the time the defendant was incarcerated in the other state to be charged against the Commonwealth.  Kubin at 1026.  Accordingly, Rule 600 is tolled where the Commonwealth proves by a preponderance of the evidence that it has acted with due diligence in attempting to procure the defendant’s return for trial.  McNear at 404, citing Commonwealth v. Hill, 736 A.2d 578, 586 (Pa. 1999).  As stated above, a defendant is deemed unavailable during the time a responding jurisdiction delays or refuses to grant extradition or if the defendant is absent under compulsory process requiring his appearance elsewhere in other judicial proceedings.   Rule 600, Comment.

Whether the Commonwealth acted with due diligence must be examined on a case-by-case basis.  Kubin at 1027, citing Commonwealth v. DeMarco, 481 A.2d 632, 637 (Pa.Super. 1984).  Due diligence does not require perfect vigilance and punctilious care, but, rather, a showing that reasonable effort has been made to secure the defendant’s presence for trial in the time specified by Rule 600.  Kubin at 1027, citing DeMarco at 636.  Matters of availability and due diligence must be judged by the actions that were taken by the Commonwealth to return the defendant for trial as opposed to the actions that were neglected by the Commonwealth.  McNear at 406, citing DeMarco at 636.  While the Commonwealth obviously cannot force another jurisdiction to act, inaction on the Commonwealth’s part, without some reasonable reliance on the assurances of state in custody of the defendant, does not constitute due diligence.  Kubin at 1027.

In this case, Cleck filed the Criminal Complaint against Defendant on October 3, 2008.  At the hearing held on the Motion to Dismiss on August 11, 2010, Clerk testified that approximately one (1) week after he filed the Complaint, he discovered that Defendant was incarcerated in a correctional facility at Rikers Island, New York.  When Cleck made that discovery, he transmitted a summons to Defendant at the Rikers Island correctional facility and made inquiries about bringing Defendant to Pennsylvania for this case.  Cleck immediately contacted the warrant unit at the Rikers Island correctional facility to inquire about the status of Defendant’s incarceration there and transmitted via facsimile a copy of the Criminal Complaint to the warrant unit.  Cleck was informed by a representative of the warrant unit at Rikers Island that Defendant was not serving a sentence of imprisonment and was being held in custody on pending New York State charges.

Cleck then telephoned the Queens County District Attorney’s Office and spoke to an assistant district attorney (“ADA”) in that office to attempt to return Defendant to Pennsylvania.  The ADA advised Cleck that Defendant would not be relinquished to Pennsylvania until the resolution of the New York State charges.  Cleck requested that the ADA contact him immediately after Defendant was sentenced on the New York State charges so that he could proceed with Defendant’s return to Pennsylvania to stand trial.  Thereafter, Cleck contacted the ADA by telephone and/or email approximately every sixty (60) to ninety (90) days to inquire about the status of the case.  Cleck also testified that he contacted the ADA when any deadlines identified to him by the ADA approached in the New York State case in order to keep apprised of the status of that case.  Cleck testified that the New York State charges were resolved in December of 2009, after which Defendant was transferred from the Rikers Island correctional facility to the Auburn correctional facility for service of the sentence imposed on the New York State charges.  Cleck immediately applied for an arrest warrant, which was issued by Lebanon County on January 6, 2010.  The arrest warrant was transmitted to New York State.  Cleck notified the Lebanon County Sheriff’s Department of the existence of the arrest warrant, and Defendant was returned to Lebanon County on the within charges on March 24, 2010.

The Commonwealth clearly sustained its burden of proving that it acted with due diligence in attempting to return Defendant for trial within 365 days of the filing of the Criminal Complaint and that Defendant was rendered unavailable during that time as a result of New York State’s refusal to return him to Pennsylvania until conclusion of the New York charges and Defendant’s required presence in New York on charges pending there.  Cleck’s immediate inquiries to the warrant unit at the Rikers Island correctional facility and the Queens County District Attorney’s Office after the Criminal Complaint was filed regarding Defendant’s return, his justified reliance on the statements of the ADA in Queens County that Defendant would not be returned to Pennsylvania until after the disposition of the New York charges, his continued discernment from the Queens County ADA about the status of the New York charges over the months that followed and his prompt action to return Defendant to Pennsylvania after the resolution of the New York charges in December of 2009 establish that the Commonwealth acted with steadfast diligence to secure Defendant’s presence in Pennsylvania for trial within the time required by Rule 600.

At the hearing on the Motion to Dismiss, Defendant made much of the fact that the Commonwealth did not file an application to extradite Defendant to Pennsylvania or a detainer and instead relied upon the assurances of the Queens County ADA that Defendant would not be returned to Pennsylvania until disposition of the New York State charges.[7]  Defendant argued that to show due diligence, the Commonwealth was required to institute formal proceedings to return Defendant to Pennsylvania instead of merely relying upon the informal statements of the Queens County ADA that Pennsylvania could not have Defendant until the disposition of the New York State charges.

When authorities in another state express opposition to a defendant’s return to Pennsylvania, the Commonwealth is not necessarily compelled to proceed under either the UCEA or the IAD when to do so would be fruitless.  McNear at 407.  This is especially so in light of the fact that a custodial state is not obligated under the UCEA to allow extradition of a defendant when it has been requested by another state. Commonwealth v. Johnson, 451 A.2d 546, 549 n. 5 (Pa.Super. 1982), citing 42 Pa.C.S. § 9126.  The institution of formal extradition proceedings clearly would have been futile in light of the position of the Queens County District Attorney’s Office that Defendant would not be returned to Pennsylvania until the conclusion of the charges in New York.  Johnson at 548, citing Commonwealth v. Williams, 425 A.2d 451, 455 (Pa.Super. 1981).  Moreover, utilization of the IAD to gain custody of Defendant while the charges remained pending in New York State would not have been appropriate, as the IAD provides for extradition of defendants who are serving sentences in other jurisdictions, not defendants who are incarcerated while awaiting the disposition of criminal charges against them.  Johnson at 549-550, citing Commonwealth v. Heath, 431 A.2d 317, 321 (Pa.Super. 1981).  Regardless of whether a formal application should have been filed with a court seeking Defendant’s return, we are confident that Defendant was absent from Pennsylvania under compulsory process that required his presence and attendance in judicial proceedings in New York State so as to be considered “unavailable” as contemplated by Rule 600.

At the hearing on the Motion to Dismiss, Defendant cited Booze, supra, in support of his position that due diligence required that the Commonwealth to initiate formal proceedings within 365 days from the date of the filing of the criminal complaint to return defendants who are imprisoned in another state.  However, in Booze, the Commonwealth knew that the defendant was being held in another state and failed to follow the proper steps to secure her presence in Pennsylvania after the disposition of the charges in the other state such that she was not brought to trial within 365 days.  In this case, unlike Booze, Cleck took immediate action to have a detainer issued and to arrange for transport of Defendant to Pennsylvania to stand trial after he learned that the New York charges were resolved in December of 2009.[8]

The Commonwealth more than amply demonstrated that it exercised due diligence in returning Defendant to Pennsylvania for trial.  As such, the Court committed no abuse of discretion by excluding the time in which Defendant was incarcerated on pending charges in New York when calculating the time in which Defendant was required to be brought to trial under Rule 600.  However, even if we were to conclude that the actions of the Commonwealth failed to constitute due diligence, no evidence was presented of any misconduct on the part of the Commonwealth in an attempt to defeat Defendant’s speedy trial rights.  Booze, supra.  Therefore, Rule 600 must be construed consistent with society’s interest in punishing and deterring crime.  For all of the above-stated reasons, we committed no abuse of discretion by denying the Motion to Dismiss that was lodged by Defendant on the basis of a Rule 600 violation.

In his Concise Statement, Defendant also argues that we erred by denying his Amended Motion to Dismiss based upon an alleged violation of the IAD.  In support of his Amended Motion to Dismiss, Defendant argued that the Commonwealth was notified of his request to be returned to Pennsylvania for trial on February 16, 2010.  As such, Defendant argued that the IAD required that he be brought to trial within 180 days of that request date of February 16, 2010, or no later than August 16, 2010.[9]  Defendant submitted that at the time of the presentation of the Amended Motion to Dismiss on November 17, 2010, the Commonwealth was 92 days beyond the date when it was required to have brought Defendant to trial by the IAD.  As such, Defendant argued that dismissal of the charges was required by the IAD.

The purpose of the IAD is to promote prisoner treatment and rehabilitation programs by eliminating the uncertainties that accompany the filing of detainers.  Commonwealth v. Montione, 673 A.2d 923, 924 (Pa.Super. 1996), citing Commonwealth v. Fisher, 301 A.2d 605, 607 (Pa. 1973).  In contemplation of this purpose, Article III of the IAD provides, in relevant part:

“(a)  Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint:  Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

 

***

(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate of the appropriate prosecuting official and court by registered or certified mail, return receipt requested.”

 

Further, Article V of the IAD specifies the following remedy for failure to comply with the mandates set forth in Article III above:

“(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order, dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.”

 

However, the 180 day time requirement of the IAD is not unqualified.  Montione at 924.  Article VI(a) of the IAD provides:

“In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.”

 

Accordingly, the timing provisions of the IAD are tolled when a defendant is unable to stand trial.  Montione at 925.  Nearly identical language qualifies Rule 600.[10]  Id.

At the hearing on the Amended Motion to Dismiss, the Commonwealth did not contest that Defendant’s Article III notice was appropriately transmitted to both it and the Court consistent with the requirements of the IAD or its receipt of that notice on February 16, 2010.  As such, under Article III of the IAD, the Commonwealth had 180 days from the date of the notice of February 16, 2010, or until August 16, 2010, to bring Defendant to trial.  As stated above, Defendant had not been tried as of November 17, 2010.  Accordingly, Defendant’s trial did not commence within 180 days of the notice as required by Article III(a) of the IAD.

However, the Commonwealth asserted at the hearing on the Amended Motion to Dismiss that Defendant was unavailable as a result of the lodging of his first Motion to Dismiss.  The Commonwealth asserted that time was tolled between the date when Defendant’s lodged his Motion to Dismiss on June 1, 2010 and the date when the Court disposed of that motion on August 11, 2010, for a period of seventy-two (72) days.  The Commonwealth submitted that when adding those seventy-two (72) days with the continuance dates sought thereafter that were attributable to Defendant from August 11, 2010 to October 27, 2010, Defendant’s trial that was scheduled to occur on December 6, 2010 fell within the requisite 180 days from the date of the receipt of the IAD notice.

In Montione, supra, the Pennsylvania Superior Court held that time is tolled under the IAD from the date when a defendant files a pretrial motion until the date of its resolution.  Montione at 926.  However, the Pennsylvania Supreme Court subsequently decided the case of Hill, supra, and stated therein that the lodging of a pretrial motion does not automatically result in the exclusion of time between the date of the lodging of a pretrial motion and its disposition:

“When a defendant is deemed unavailable for trial, the time is excludable from the Rule [600] calculation; however, the mere filing of a pretrial motion by a defendant does not automatically render him unavailable.  Rather, a defendant is only unavailable for trial if a delay in the commencement of trial is caused by the filing of the pretrial motion.  If a delay is created, in order to establish that the delay is excludable, the Commonwealth must demonstrate, by a preponderance of the evidence, that it exercised due diligence in opposing or responding to the pretrial motion.  A delay caused by the Commonwealth’s lack of due diligence will not constitute excludable time.”

 

Hill at 587 (citation omitted).

In this case, Defendant filed his first Motion to Dismiss on June 1, 2010.  On July 22, 2010, when Defendant’s case was scheduled for Call of the List for trial, this Court issued an Order continuing Defendant’s case until the trial term commencing on September 13, 2010 because disposition of the Motion to Dismiss had yet to occur.  Clearly, a delay in the commencement of Defendant’s trial was caused by the filing of Defendant’s Motion to Dismiss, as his case had to be continued until the trial term commencing September 13, 2010 as a result of his outstanding request for pretrial relief.  Having reviewed the record in this matter, the Commonwealth never requested a continuance of the hearing scheduled on the Motion to Dismiss of August 11, 2010, and the Commonwealth and its witness appeared at that hearing and presented relevant evidence and testimony regarding that Motion that facilitated the Court’s disposition of the Motion to Dismiss on the same date of the hearing.  The record reflects that the Commonwealth exercised due diligence in opposing Defendant’s Motion to Dismiss, thereby rendering the time between the lodging of the Motion to Dismiss and its disposition excludable from any IAD calculation.

At the hearing on his Amended Motion to Dismiss, Defendant argued that he was not scheduled to be called to trial until July 22, 2010.  As such, Defendant submitted that the Motion to Dismiss did not cause delay in the commencement of his trial until July 22, 2010.  Therefore, it was Defendant’s position that the only excludable time relating to the Motion to Dismiss was between July 22, 2010 and August 11, 2010.[11]  Defendant’s argument on this point misses the mark.  As stated in Hill, a defendant is unavailable only if the filing of a pretrial motion caused a delay in the commencement of the trial.  As explained above, on July 22, 2010, when Defendant’s case was scheduled to be called for trial, a continuance was required to be issued by the Court because Defendant’s Motion to Dismiss remained outstanding.  Based upon the express language in Hill, since the filing of the Motion to Dismiss indeed caused a delay in the commencement of trial, it rendered Defendant unavailable from the date of the Motion to Dismiss until the date of its disposition, not merely from the date when Defendant’s trial was required to be moved due to the outstanding Motion to Dismiss to the date of its disposition.  Defendant was unavailable during the entire pendency of the Motion that actually delayed the trial.  Had the Commonwealth or this Court desired to list Defendant’s case for trial before July 22, 2010, it would have been fruitless to even attempt to do so because of the pending Motion to Dismiss.  Under these circumstances, the time between the lodging of the Motion to Dismiss and its resolution is excludable from the time in which Defendant was required to be brought to trial under the IAD.

However, even if the only excludable time relating to the Motion to Dismiss occurred between July 22, 2010 and August 26, 2010, Article III(a) of the IAD provides that for good cause shown in open court, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.  The Commonwealth filed a Motion for Continuance of Defendant’s case with this Court on October 27, 2010.  This Motion was filed in open court during the Call of the List of October 27, 2010, when Defendant’s case was scheduled to be called to trial and Defendant and his counsel had the opportunity to be present.  The Court granted the continuance until the trial term commencing on December 6, 2010.  The Commonwealth applied for that continuance before the expiration of the 180 days, as Defendant’s case was required to be continued due to the outstanding nature of the Motion to Dismiss from July 22, 2010 until August 26, 2010 and continuances were requested by Defendant from August 26, 2010 to October 27, 2010.  Viewing the record in the light most favorable to the Commonwealth, good cause existed for the extension of the IAD timeframe, as Defendant’s case could not be tried before the expiration of the 180 day period.  For these reasons, we committed no abuse of discretion by denying Defendant’s Amended Motion to Dismiss based upon a violation of the IAD.

We offer this case to the Pennsylvania Superior Court for its review.