# Commonwealth v. Peterson

> Superior Court of Pennsylvania · May 4, 2011 · 2011 Pa. Super. 92

URL: https://www.frixlaw.com/law-library/cases/9784970

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant v. Darius PETERSON, Appellee
- **Court:** Superior Court of Pennsylvania
- **Decided:** May 4, 2011
- **Citations:** 2011 Pa. Super. 92; 19 A.3d 1131; 2011 Pa. Super. LEXIS 195; 2011 WL 1662931
- **Precedential status:** Published
- **Opinion:** Concurrence by Donohue
- **Judges:** Ford Elliott, P.J., Musmanno, Bender, Bowes, Donohue, Shogan, Allen, Olson, and Ott
- **Cited by:** 74 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9784970

## How later opinions describe it (automated extraction)

- recognizing that while the language of Rule 600 ordinarily applies to defendants on bail, both our Supreme Court and the Superior Court have applied Rule 600 to defendants who are not eligible for bail or were otherwise not free on bail at the time that the 365-day period elapsed
- finding that a joint continuance is excludable delay
- holding delay caused by defendant’s request to obtain private counsel is excludable

## Opinion text

CONCURRING OPINION BY
DONOHUE, J.:
I join in the well-reasoned Majority Opinion because I agree that, in the case at bar, the Pa.R.Crim.P. 600 time period commences with the filing of the second criminal complaint. Also, I agree that under the circumstances presented here, no due diligence analysis is required for the time period between the dismissal of the first complaint and the filing of the second complaint. My sole point of disagreement with the thorough Majority Opinion is the conclusion that the Commonwealth carried its burden of proving that it acted with due diligence when a police officer failed to appear at a scheduled preliminary hearing. For the reasons that follow, I do not believe that the Commonwealth met its burden of establishing its diligence in two instances where a police officer failed to appear. However, because the resulting continuances required only a combined 35 days of delay, and the complaint was not dismissed at the Commonwealth’s behest, I do not believe the Commonwealth’s lack of diligence in two isolated instances changes the outcome reached by the Majority.
As noted in Commonwealth v. Meadius, 582 Pa. 174, 180-83 , 870 A.2d 802, 805-08 (2005), our focus must be whether the dismissal and refiling of charges is a result of the Commonwealth’s lack of due diligence or “intent to evade” the dictates of Rule 600. See also Commonwealth v. Surovcik, 933 A.2d 651, 654 (Pa.Super.2007) (same), appeal denied, 597 Pa. 715 , 951 A.2d 1163 (2008). Given the circumstances of the dismissal of the first complaint and the comparatively brief period of delay resulting from the Commonwealth’s failure to procure a police officer’s appearance at two preliminary hearings, I cannot conclude that the dismissal of the first complaint was the result of the Commonwealth’s lack of due diligence or “intent to evade” Rule 600.
On the due diligence issue, it is well established that the Commonwealth bears the burden of proving, by a preponderance of the evidence, that it acted with due diligence in complying with Rule 600. Commonwealth v. Kearse, 890 A.2d 388, 393 (Pa.Super.2006), appeal denied, 588 Pa. 788 , 906 A.2d 1196 (2006). Here, as discussed in more detail later, the Commonwealth asserted that the witness, the arresting officer, was subpoenaed but was unable to appear at a scheduled hearing due to other obligations. In support of its conclusion that the police officer’s absence from the preliminary hearings was beyond the Commonwealth’s control, the Majority relies on Commonwealth v. Staten, 950 A.2d 1006, 1010-11 (Pa.Super.2008). In Staten , a police officer failed to appear to testify because he was on assignment elsewhere. This Court concluded that the police officer’s conflicting assignment was beyond the Commonwealth’s control and thus not indicative of a lack of due dili- *1143 genee. Id. at 1010-11 1 ; see also Commonwealth v. Corbin, 390 Pa.Super. 243 , 568 A.2d 635, 638 (1990) (no lack of due diligence where a trial was inadvertently scheduled to take place while a police officer was on vacation) (superseded by statute on other grounds as stated in Kearse, 890 A.2d at 393 ).
This Court has been unfortunately inconsistent in its analysis of the Commonwealth’s evidence in support of carrying its burden of proof when called upon to decide whether and when a police officer’s failure to appear to testify is attributable to the Commonwealth’s lack of diligence. In Corbin , for example, to establish its due diligence, the Commonwealth produced a court liaison police officer who testified as to the protocol in place within the department to avoid conflicts between vacations and hearings for which subpoenas were issued to police officers. The court liaison officer further testified that the case was inadvertently listed for trial during a police officer’s vacation because of an “overburdened docket coupled with an inadequate number of staff present at the detention center[.]” Corbin, 568 A.2d at 638 . In light of the court liaison’s testimony explaining the failure of the protocol upon which the Commonwealth relied, we ruled that the delay resulting from the police officer’s absence was beyond the Commonwealth’s control. See also Commonwealth v. Anderson, 959 A.2d 1248, 1249-52 (Pa.Super.2008) (delay not chargeable to the Commonwealth where the record showed that a police officer was unavailable to testify due to a serious injury he sustained on the job).
In contrast with the burden of coming forward with evidence placed on the Commonwealth in Corbin , in cases such as Staten , this Court has accepted, without analysis and without any apparent evidence adduced by the Commonwealth, that a police officer’s unavailability was beyond the Commonwealth’s control. Staten, 950 A.2d at 1010-11 ; see also Commonwealth v. Brawner, 381 Pa.Super. 265 , 553 A.2d 458, 461 (1989) (accepting without analysis that a police officer’s unavailability due to vacation was beyond the Commonwealth’s control), appeal denied, 522 Pa. 617 , 563 A.2d 886 (1989); Commonwealth v. Bright, 303 Pa.Super. 98 , 449 A.2d 596, 598 (1982) (same).
In other cases, the absence of any evidence from the Commonwealth as to its due diligence has led us to conclude that the Commonwealth failed to carry its burden. For example, in Commonwealth v. Johnson, 405 Pa.Super. 363 , 592 A.2d 706, 706-07 (1991), the record showed that delays were occasioned by the Commonwealth’s initial failure to subpoena a police officer and its subsequent failure to address the subpoena to the appropriate police district. We concluded that the Commonwealth failed to exercise due diligence in bringing the defendant to trial:
The only effort on the Commonwealth’s part of which we are aware is that one subpoena was sent to the wrong office. There is no evidence that the subpoena was monitored in any fashion by the district attorney’s office, or that the Commonwealth filed the subpoena in a sufficient amount of time to allow for error so as to make the witness’ appearance on March 15,1990 a probability. It has been held that the mere assertions of the Commonwealth as to its due diligence in bringing in a witness for trial are insufficient to support a request for *1144 extension in the absence of evidence supporting such assertions.
Id. at 710; see also Commonwealth v. Johnson, 852 A.2d 315, 317-18 (Pa.Super.2004) (Prosecutor’s assertions of diligence insufficient; the Commonwealth must make a record of its diligence), appeal denied, 583 Pa. 680 , 877 A.2d 460 (2005);
Likewise, in Commonwealth v. Taylor, 409 Pa.Super. 589 , 598 A.2d 1000 , 1002 n. 2 (1991) appeal denied, 531 Pa. 654 , 613 A.2d 559 (1992), this Court noted that the delay ensuing from the Commonwealth’s “unexplained failure” to subpoena a police officer was chargeable to the Commonwealth. Furthermore, the Commonwealth argued in Taylor that its failure to provide timely discovery was beyond its control because of a delay in receiving a requested police report. We rejected the Commonwealth’s argument, reasoning that “the Commonwealth could have done more in its attempt to secure the report from the police than merely requesting the report two or three times. Its failure to do so shows a lack of due diligence.” Id. at 1002-03. 2
The Johnson Court 3 relied on Commonwealth v. Browne, 526 Pa. 83, 89 , 584 A.2d 902, 905 (1990), in which our Supreme Court chastised this Court for its apparent willingness to “accept any and every excuse for failure to bring a criminal case to trial within the period prescribed by Rule 1100.” 4 The Supreme Court in Browne rejected the Commonwealth’s argument that delay resulting from Lancaster County’s “term system of criminal court” was beyond the Commonwealth’s control. Id. at 89-90 , 584 A.2d at 905 . “[The Lancaster County District Attorney’s Office] and those like it must, to be diligent, have simple systems in place to carry out the routine duties of the office. Sound reason requires no less.” Id. at 90 , 584 A.2d at 906 ; see also Commonwealth v. Lopez-Melendez, 435 Pa.Super. 62 , 644 A.2d 1235, 1239 (1994) (rejecting the Commonwealth’s argument that a delay in processing the defendant’s application for accelerated rehabilitative disposition was beyond the Commonwealth’s control); Commonwealth v. McCutcheon, 339 Pa.Super. 8 , 488 A.2d 281, 284 (1985) (Commonwealth not diligent where papers concerning the defendant’s prosecution were temporarily misfiled, because Commonwealth had no system for assuring that cases were properly processed).
I believe this en banc panel should take the opportunity to restore uniformity to the Superior Court’s jurisprudence and apply the principles set forth by our Supreme Court in Browne. Browne mandates that district attorney’s offices have systems in place to carry out routine duties, and one of the routine duties of any district attorney’s office is procuring a police officer’s testimony in the prosecution of its case. In the instant matter, the Commonwealth failed to carry out that routine duty on several occasions and did not offer any evidence from which I can conclude that the failure was beyond the Commonwealth’s control. I believe this Court should state unequivocally that a mere assertion by the Commonwealth that a witness was subpoenaed but was unavailable to appear and testify does not support a conclusion that the resulting period of delay was beyond the Commonwealth’s *1145 control. The Commonwealth must meet its evidentiary burden with evidence of its diligence. While the Commonwealth’s evidence need not establish perfect diligence and reasonable efforts are sufficient, Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.Super.2007) (en banc), appeal denied, 597 Pa. 705 , 948 A.2d 803 (2008), actual evidence of systematic efforts to establish compliance with subpoenas is the minimum that is required to establish diligence.
In the case at bar, at the January 16, 2007 preliminary hearing, the prosecutor stated that the arresting officer was subpoenaed to appear both in this case and in an unidentified proceeding at “1801 Vine Street.” N.T., 10/28/08, at 17. According to the prosecutor, police protocol was for the officer to prioritize the subpoena for the proceeding at 1801 Vine Street. Id. That Peterson stipulated to these facts is of no moment. Our job is to determine whether, as a matter of law, these facts establish an exercise of due diligence by the Commonwealth. I conclude that they do not. The prosecutor’s assertions shed no light on what systems the Commonwealth has in place to avoid such conflicts in the first place or how this particular conflict arose despite the Commonwealth’s system to avoid it. Merely serving a subpoena and hoping it is honored is not due diligence.
It is the Commonwealth’s obligation to prove that it acted with diligence; this Court is not free to assume, based on limited facts, that the Commonwealth was diligent. See Commonwealth v. Brant, 272 Pa.Super. 135 , 414 A.2d 707 , 710 n. 2 (1979) (“[Jjudicial surmise as to the reason for the Commonwealth’s failure to bring appellant to trial cannot serve as a substitute for the Commonwealth’s affirmative duty to prove, by a preponderance of the evidence, that it has met the requirements of Rule 1100(c).”). I believe it is clear that the Commonwealth did not meet its burden here, where the prosecutor offered no evidence of its diligence in procuring the police officer’s appearance to testify at the January 16, 2007 hearing. 5
Next, on February 1, 2007, the arresting officer in this case failed to appear because he was “in training,” and the hearing was continued. N.T., 10/28/08, at 17-18. The prosecutor forthrightly admitted that it had no evidence of its diligence in procuring the police officer’s appearance and that the resultant delay should count against the Commonwealth for purposes of Rule 600:
The next listing was February 1st of 2007; the officer was in training on that day. I have nothing else to say about that date. I will agree that that would be the Commonwealth’s time because the officer is in training. I am unaware of whether or not we knew that prior to the case being given that date on January the 16th, so I don’t have an argument as to whether or not we knew and scheduled it on that day anyway. So I won’t argue that because I don’t have that information.
N.T., 10/28/08, at 17-18 (emphasis added).
Absent any evidence regarding the service of a subpoena; what protocols were in place to avoid conflicts with officer training dates; and if protocols were in place, why the protocols failed, the prosecutor had no choice but to concede the Commonwealth’s *1146 lack of diligence for this hearing date. 6 Accordingly, the delay resulting from the February 1, 2007 continuance should have been charged to the Commonwealth.
As noted, the delay occasioned by the failure of the Commonwealth’s principal witness to appear to testify does not change the Rule 600 conclusion in this case. The Commonwealth acted with diligence throughout the remainder of the prosecution of the first complaint, and the short delay resulting from the officer’s failure to appear coupled with the unrequested dismissal of the first complaint does not evince an intent on the part of the Commonwealth to evade the strictures of Rule 600. However, this case brings into focus the problem this Court has created by inconsistently applying the burden of proof required of the Commonwealth to establish its diligence in timely bringing a case to trial.
To establish due diligence in the prosecution of a case for the purpose of Rule 600, in addition to proving that a subpoena to appear and testify was issued and properly served, the Commonwealth must establish that it has reliable systems in place to ensure compliance with subpoenas. In those cases where the system fails and the officer does not appear to testify, the Commonwealth must prove that the failure of the system was despite the Commonwealth’s efforts. Absent such proof, any delay of trial as a result of the witness’ failure to appear should be attributable to the Commonwealth.
We should not take lightly the admonition of our Supreme Court in Browne that this Court not “accept any and every excuse” proffered by the Commonwealth for its witnesses’ failure to appear. To do so renders Rule 600 meaningless. It is well established that the Commonwealth, in the face of an alleged Rule 600 violation, bears the burden of proving that it acted with due diligence. Meadius, 582 Pa. at 183 , 870 A.2d at 807 ; Kearse, 890 A.2d at 393 . We have an obligation to uniformly review the record before us on appeal to assure that this evidentiary burden is met instead of giving it only lip service.
With the exception of the foregoing point of disagreement, I join the Majority Opinion.
. Staten was decided under Pa.R.Crim.P. 1013, which governs the speedy trial requirement in a municipal court case. We analyze claims under Rules 600 and 1013 according to the same standard. Staten, 950 A.2d at 1009-10 .
. Like Staten, Taylor was decided under Rule 1013.
. Here we refer to the 1991 panel.
.Though Browne was decided under the predecessor to current Rule 600, the due diligence component of the successor rule is coterminous. See Johnson, 852 A.2d at 317 ; see also Meadius, 582 Pa. at 183 , 870 A.2d at 807 (citing Browne).
. The Majority notes that the January 16, 2007 hearing became necessary only because of Peterson’s previous failure to appear. Majority Opinion, at 13. The law is clear, however, that the Commonwealth must exercise diligence throughout the pendency of a criminal proceeding. Kearse, 890 A.2d at 393 (citing Commonwealth v. Hawk, 528 Pa. 329, 336 , 597 A.2d 1141, 1145 (1991)).
. The record reveals diat the arresting officer missed another preliminary hearing, on April 25, 2008, because he was in training. This was the first scheduled preliminary hearing after the filing of the second complaint. Since Peterson filed his Rule 600 motion less than one year after the filing of the second complaint, the issue of the Commonwealth's diligence in connection with the April 25, 2008 hearing is not before us. However, this officer's repeated failure to appear because of conflicting training sessions raises a serious doubt as to whether there is any system in place to avoid such conflicts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9784970. Public record. Not legal advice.