Com. v. Braun, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JASON J. BRAUN : No. 287 WDA 2021
Appeal from the Order Entered February 1, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000592-2020
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 8, 2022
The Commonwealth appeals from the trial court’s February 1, 2021
order granting Appellee’s, Jason J. Braun, motion to dismiss the charges
against him based on the Commonwealth’s violating the Interstate Agreement
on Detainers (“IAD”), 42 Pa.C.S. §§ 9101-9108. The Commonwealth argues
that the court erred by dismissing the charges against Appellee because he
waived his rights under the IAD by calling his case for trial. After careful
review, we affirm.
The trial court summarized the pertinent facts and procedural history of
Appellee’s case, as follows:
On September 17, 2018, Pennsylvania State Trooper [Michael]
Doriguzzi filed the charges of Robbery, Theft by Unlawful Taking,
Receiving Stolen Property, Terroristic Threats, Simple Assault,
Recklessly Endangering Another Person, and Harassment. The
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* Retired Senior Judge assigned to the Superior Court.
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charges resulted from an incident that occurred on September
15, 2018, when … Appellee entered the Foodland Grocery Store
located at 1176 National Pike, South Union Township, Fayette
County, stole money from the office[,] and threatened a store
employee with a gun. … Appellee learned of these pending charges
while incarcerated at the North Central Regional Jail located in
Greenwood, West Virginia. Appellee completed and signed a
Notice of Untried Indictment, Information or Complaint and of
Right to Request Disposition form pursuant to the [IAD].
On February 11, 2019, the Certificate of Inmate Status was
completed and signed by the North Central Regional Jail
Superintendent Timothy L. Bowen. The documentation states that
… Appellee was incarcerated for a period of one (1) to three (3)
years[,] with one hundred and fifty-six (156) days served. The
certificate document[ed] that a detainer from Fayette County was
… file[d] for … Appellee.
Attached to the Request for Disposition was the Offer to Deliver
Temporary Custody and … this documentation was sent to Richard
Bower, [Esq.,] Fayette County District Attorney[,] with the
documentation having been mailed and/or faxed on or about
February 11, 2019.
Trooper Doriguzzi documented that he was notified by the
Moundsville, West Virginia[,] Police Department on September 17,
2018, that … Appellee had been arrested and had [obtained]
additional charges. On April 11, 2019, the [t]rooper further
documented that … Appellee was incarcerated at the North Central
Regional Jail. On November 21, 2019, the [t]rooper verified that
Appellee was in Saint Mary’s Correctional Center in St. Mary's,
West Virginia.
***
On March 25, 2020, … Appellee was back in Pennsylvania and
bond was set but not posted by … Appellee. A preliminary hearing
was held on April 22, 2020. On June 22, 2020[,] an Omnibus
Pretrial Motion was filed and[,] after a hearing on the issues, it
was denied on August 24, 2020.
On September 28, 2020, … Appellee rejected [a] plea offer and
the case was listed by the District Attorney for trial. On January
28, 2021, the Motion to Dismiss was filed.
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Trial Court Opinion, 5/7/21, at 1-2 (unnumbered).
On January 25, 2021, a Call of the List Proceeding was conducted before
the trial court. There, the Commonwealth called Appellee’s name and case
number. See N.T. Call of the List Proceeding, 1/25/21, at 2. Appellee’s
counsel then stated, “Trial,” thereby indicating that Appellee prepared to
proceed with his trial. Id. However, on January 28, 2021, Appellee filed a
motion to dismiss the charges against him, alleging that the Commonwealth
had failed to bring him to trial within 180 days of his request for the disposition
of his charges, as required by Article III of the IAD, discussed infra. After
conducting a hearing on February 1, 2021, the trial court issued an order
granting Appellee’s motion and dismissing the charges pending against him.
The Commonwealth filed a timely notice of appeal, and it complied with
the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed its Rule 1925(a) opinion on May 7,
2021. Herein, the Commonwealth states one issue for our review: “Whether
the trial court erred in granting … Appellee’s [m]otion to [d]ismiss under the
[IAD] when … Appellee waived his claim under the [IAD] by calling his case
for trial?” Commonwealth’s Brief at 1.1
Our Supreme Court has explained that “[t]he IAD is
an agreement between forty-eight states, the District of Columbia, Puerto
Rico, the Virgin Islands, and the United States, that establishes procedures
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1The Commonwealth states in its brief that it is withdrawing a second issue
set forth in its Rule 1925(b) statement. See id. at 1 n.1.
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for the transfer of prisoners incarcerated in one jurisdiction to the temporary
custody of another jurisdiction which has lodged a detainer against a
prisoner.” Commonwealth v. Davis, 786 A.2d 173, 175 (Pa. 2001) (citation
omitted). Moreover,
“[t]he policy of the [IAD] is to encourage the expeditious and
orderly disposition of charges and its purpose is to promote and
foster prisoner treatment and rehabilitation programs by
eliminating uncertainties which accompany the filing of
detainers. Commonwealth v. Fisher, … 301 A.2d 605, 607
([Pa.] 1973).” Commonwealth v. Wilson, … 454, 331 A.2d 792,
794 ([Pa. Super.] 1974) (footnote omitted); see also
Commonwealth v. Merlo, … 364 A.2d 391, 394 ([Pa. Super.]
1976). Because the legislation is remedial in character, it is to be
liberally construed in favor of the prisoner so as to effectuate its
purpose. … Merlo, supra[,] … at 394.
Commonwealth v. Thornhill, 601 A.2d 842, 845–46 (Pa. Super. 1992)
(cleaned up).
Pertinent to the present case, Article III of the IAD states the following:
(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. The request of the prisoner shall be
accompanied by a certificate of the appropriate official having
custody of the prisoner, stating the term of commitment under
which the prisoner is being held, the time already served, the time
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remaining to be served on the sentence, the amount of good time
earned, the time of parole eligibility of the prisoner, and any
decisions of the state parole agency relating to the prisoner.
42 Pa.C.S. § 9101, Article III(a) (emphasis added).
Here, the Commonwealth acknowledges that “[o]n February 11, 2019,
Appellee completed an Agreement on Detainers Form, stating he was
incarcerated in the North Central Regional Jail for a parole violation and was
requesting Fayette County take temporary custody of [him] pending the
outcome of his robbery case.” Commonwealth’s Brief at 2. Appellee was
brought to Pennsylvania on March 25, 2020. He filed his motion to dismiss
the charges on January 28, 2021. Thus, 717 days lapsed between the
Commonwealth’s receiving Appellee’s request for the disposition of his
charges, and the filing of his motion to dismiss. Omitting the 180 days
permitted by Article III, the Commonwealth violated that provision of the IAD
by 537 days.2
Based on this violation, the trial court concluded that the charges
against Appellee must be dismissed. It stressed in its opinion that,
[t]he Commonwealth failed to request a continuance in order to
extend the run-date of the [IAD’s] 180 day … period[] in which
the Commonwealth must try the case. … Appellee’s case was not
called for trial nor was any specific trial date set. … The delay that
occurred in this case is the very type of delay which the IAD was
enacted to prevent.
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2 We recognize that even omitting the 63 days spent litigating the omnibus
pretrial motion filed by Appellee on June 22, 2020, and denied by the court
on August 24, 2020, the Commonwealth still violated the 180-day
requirement of Article III by 474 days.
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TCO at 4 (unnumbered).
On appeal, the Commonwealth argues that the trial court erred by
dismissing Appellee’s charges because he “waived his rights under the IAD by
agreeing to a trial date.” Commonwealth’s Brief at 7. More specifically, the
Commonwealth explains:
On January 25, 2021, at the Call of the List, the [Commonwealth]
called … Appellee’s case for trial. In response, … Appellee also
called the case for trial. The trial was to begin on February 1,
2021. Additionally, … Appellee called his case for trial on a
previous occasion, at the November 30, 2020 Call of the List,
which listed the case for trial to start on December 7, 2020.2 Since
… Appellee called his case for trial, and [it] was to begin on a
specific date, on two occasions, … he waived his rights under the
IAD.
2 Following the Call of the List on November 30, 2020, after
the Appellee called his case for trial and listed it to start on
December 7, 2020, the trial (as well as all other trials in
Fayette County in December) was continued due to COVID-
19.
The trial court asserted that no specific trial date was set. The
trial court’s reasoning is incorrect. Procedurally, Fayette County
conducts its jury trials by having a criminal court week in the first
full week of every month. Each defendant receives a notice of
trial, [and] when his trial is to begin. At the Call of the List the
week prior, the Commonwealth calls the cases it expects to call
during the criminal court week. The defend[an]ts, at the Call of
the List, assert whether they plan to take the case to trial, plea
out the case, continue the case, or file any relevant motions to
dismiss the case.
In this case, … Appellee was given a notice of trial for December
7, 2020[,] and February 1, 2020. He was aware that his trial was
to being [sic] on those dates. To hold that there was no specific
date set for Appellee’s trial is incorrect. The case was called to
being [sic] on February 1, 2021. To support this assertion, the
Commonwealth was prepared to pick a jury on February 1, 2021.
The trial court held the hearing on the motion to dismiss pursuant
to the IAD prior to trial. Therefore, all parties anticipated to go to
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trial on February 1, 2021. The trial court thus erred in granting …
Appellee’s motion to dismiss pursuant to the IAD.
Commonwealth’s Brief at 7-8 (footnote omitted).
Notably, the Commonwealth cites no case law to support its waiver
argument. There is also nothing in the record to support the Commonwealth’s
assertion that a specific trial date was set for February 1, 2021. There is no
document indicating that Appellee was notified that this was the intended trial
date, and nothing in the record of the February 1, 2021 hearing indicates that
trial or jury selection was scheduled to begin that day.
Additionally, at the January 25, 2021 Call of the List Proceeding, defense
counsel’s indicating that Appellee was prepared to proceed to trial did not
excuse the Commonwealth from its obligations under the IAD. In Thornhill,
the case relied upon by Appellee, charges were filed against Thornhill and a
preliminary hearing was held in his absence, as he failed to appear.
Thornhill, 601 A.2d at 843. The charges were held for court and an arrest
warrant for Thornhill was filed. Id. Nearly two years later, Thornhill filed a
motion to dismiss the charges, arguing that the Commonwealth had violated
the IAD. Id. The trial court disagreed and denied Thornhill’s motion. Id. His
case proceeded to trial, and he was convicted. Id. Thornhill appealed to this
Court, challenging the court’s denial of his motion to dismiss because the
Commonwealth had failed to bring him to trial within 180 days as the IAD
requires. Id. In response, the Commonwealth insisted that because
Thornhill’s “counsel sat by silently while [the] trial date was set by the court,
this silence acted as a waiver of any objection under the Act.” Id. at 844.
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We rejected the Commonwealth’s waiver argument in Thornhill.
Initially, we stressed that the IAD allows for the Commonwealth to request a
continuance, which it did not do in Thornhill’s case. Id.; see also 42 Pa.C.S.
§ 9101, Article III(a) (stating, “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”). Consequently,
we declared that “we cannot find the silence of [Thornhill’s] counsel relieve[d]
the Commonwealth of its responsibility under the [IAD] to request an
appropriate continuance.” Id. Because the Commonwealth had disregarded
the procedure set forth in the IAD for bringing Thornhill to trial within 180
days, or requesting a continuance of the proceedings, we held that Thornhill
was “entitled to a dismissal of the charges against him.” Id. at 846.
Here, similarly to Thornhill, Appellee’s counsel did not object to the
case proceeding to trial at the Call of the List Proceedings on January 25,
2021. Instead, counsel indicated that Appellee was prepared for his trial to
commence, which is not surprising given that, as of the date of the Call of the
List Proceeding, over 700 days had passed since the Commonwealth had
received Appellee’s request for the disposition of his charges, and 534 days
had passed since the 180-day requirement of the IAD had expired.3 Given
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3 This fact distinguishes this case from New York v. Hill, 528 U.S. 110(2000), which the trial court cites. There, Hill was in prison in Ohio when a
detainer was lodged against him in New York. Id. at 112. He signed a request
for disposition of the detainer pursuant to Article III of New York’s IAD statute,
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this record, the Commonwealth has failed to convince us that defense
counsel’s acknowledgement of Appellee’s readiness to proceed to trial
constituted a waiver of his rights under the IAD. As we stressed in Thornhill,
“[i]t is not [a] defendant’s duty to insure that he is being brought to trial within
the specified time; that responsibility rests with the Commonwealth.” Id. at
845 (citations omitted). Because the Commonwealth clearly violated the
time-requirement of Article III of the IAD in this case, we affirm the trial
court’s order dismissing the charges against Appellee.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2022
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and was returned to New York to face the charges. Id. After only 167 non-
excludable days had passed, the prosecutor and defense counsel met in court
to set a trial date. Id. at 113. Rather than demand that Hill’s trial commence
before the 180 days expired, defense counsel agreed to a specific trial date
beyond the 180-day limit of the IAD. Id. Ultimately, the trial court held that
“[d]efense counsel’s explicit agreement to a trial date set beyond the 180-day
statutory period constituted waiver or abandonment of [Hill’s] rights under
the IAD[,]” and the United States Supreme Court agreed. Id. Here, unlike in
Hill, Appellee’s Call of the List Proceeding was held 534 days after the 180-
day IAD deadline had already passed. Thus, Appellee had no option to
demand, at that proceeding, that his trial commence within the 180-day
period. Consequently, we cannot conclude that Appellee waived his rights
under the IAD by failing to do so.
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