Rule 600; Failure to appear for untimely trial; waiver.
Commonwealth v. Barbour, (Pa. Super. 2016) (unpublished), appeal docket 13 WAP 2017 (Majority) (Concurrence)
Appellant was charged on August 4, 2003 with offenses related to a vehicle stop including driving without a license and possession of marijuana, and then again on August 20, 2003 with aggravated assault with a weapon, robbery, and related offenses; the mechanical run dates for speedy trial purposes under Pa. R. Crim. P. 600 for the two sets of charges were, respectively, August 3, 2004, and
August 19, 2004. No trial on either was scheduled until October 2004. When Defendant failed to appear for trial bench warrants were issued. Defendant was not apprehended until 2014, at which time he was scheduled for trial and thereafter filed a motion to dismiss for violation of Rule 600, because rule 600 had already been violated as of the time Defendant was called for trial in 2004. The trial court granted the motion to dismiss and the Commonwealth appealed.
The Superior Court majority reversed and remanded, agreeing with the Commonwealth that Defendant waived his Rule 600 rights by failing to appear when his case was called for trial on October 18, 2004. Relying on Commonwealth v. Steltz, 560 A.2d 1390, 1391 (Pa. 1989) and Commonwealth v. Brock, 61 A.3d 1015 (Pa. 2013), in which the Supreme Court found waiver of the right to speedy trial where the defendants failed to appear for a trial that would have been timely had they appeared, the Superior Court majority reasoned:
We recognize that in Steltz and Brock the defendants absconded before the Commonwealth’s Rule 600 time had expired. See generally Brock, supra at 1015; Steltz, supra at 1390. However, as noted above, our Supreme Court’s rule is clear, “[o]ne’s voluntary absence from a day set for trial within Rule [600] is a waiver of that rule.” Brock, supra at 1021 (emphasis in original), quoting Steltz, supra at 1391.
Slip op. at 10.
Concurring in the result, Judge Bowes reasoned that Stelz and Brock cannot on their terms justify a waiver of the right to speedy trial where the defendant fails to appear for a trial that would have been untimely anyway. Judge Bowes nonetheless concurred in the result because she found it was incumbent on the Defendant to appear and seek discharge rather than simply abscond, and that the Commonwealth was prejudiced by his failure to raise and litigate the Rule 600 issue in a timely manner:
In sum, I do not doubt the Commonwealth was prejudiced by the loss of evidence and faded memories due to Appellee’s lack of diligence in pursuing discharge. Had Appellee appeared in October [2004] as scheduled and litigated a motion to dismiss, the result may well have been different. The original trial judge would probably have been present and may have had his own memory, records, log book, or other source of information to rely upon in determining whether Appellee or his counsel had notice of the proceedings.
Concurring Slip op. at 13.
The Supreme Court granted allocatur to decide the issue, as stated by petitioner:
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.
For more information, contact Kevin McKeon or Dennis Whitaker.