Com. v. Jones, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAMON JONES,
Appellant No. 520 EDA 2013
Appeal from the Judgment of Sentence December 14, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0907121-1982
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 24, 2014
Damon Jones appeals from the judgment of sentence of two
consecutive life sentences imposed by the trial court after the
Commonwealth elected not to re-pursue the death penalty following the
grant of penalty phase relief during PCRA proceedings. After careful review,
we affirm.
The facts of this matter were detailed by the Pennsylvania Supreme
Court in Commonwealth v. Jones, 610 A.2d 931 (Pa. 1992), as follows:
Appellant's convictions arose from a drug-related massacre
in which two persons were killed and six others were seriously
wounded in a courtyard at the Richard Allen Housing Project
(Project) in the City of Philadelphia. The factual background is as
follows.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On August 25, 1982, Sylvester Williams confronted Ernest
Wright and demanded that he stop selling drugs in the Project.
Williams confiscated the sum of $200.00 from Wright. Later that
day, Williams encountered Isaiah Givens and discussed the
earlier confrontation with Wright. Givens told Williams that there
would be no acts of reprisal from himself, appellant, or Portie
Robertson. Nevertheless, on the following day, appellant,
accompanied by Givens and Robertson, entered the courtyard of
the Project. All three men were carrying handguns. At that time,
Williams was near the steps of a building that fronted the
courtyard. An unidentified man approached the well-armed trio,
whereupon appellant announced, “This is not meant for you.
Move.” Appellant, Givens, and Robertson then began to fire
their weapons. In rapid succession they fired approximately
twenty shots towards Williams. Numerous people were in the
courtyard at the time, standing near Williams. Two of them,
including one seven-year-old child, were killed and six others
were seriously wounded. Williams was not hit. Appellant,
Givens, and Robertson fled but were soon apprehended by
police.
Appellant, Givens, and Robertson were tried jointly for this
crime and all were convicted. In accordance with the jury's
verdict in the penalty phase of trial, Givens and Robertson were
sentenced to life imprisonment and appellant was sentenced to
death.
Id. at 935.1
Appellant filed a timely first time PCRA petition on January 16, 1997,
pursuant to the 1995 amendments to the PCRA statute. The PCRA court
ultimately directed that Appellant had until March 15, 2000, to file a
supplemental amended petition. Appellant complied, and the court heard
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1
The jury returned guilty verdicts in the guilt phase of the trial on May 19
1983, after a two month trial, but Appellant was not sentenced until 1987.
The Pennsylvania Supreme Court in Commonwealth v. Jones, 912 A.2d
268 (Pa. 2006), noted that Appellant filed post-verdict motions raising
ninety claims of error. The Pennsylvania Supreme Court decided Appellant’s
direct appeal in 1992.
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argument on whether to grant an evidentiary hearing on July 26, 2000.
That same date, the PCRA court granted an earlier filed motion for discovery
relative to voir dire notes of the trial prosecutor. The Commonwealth filed
an interlocutory appeal, and the Pennsylvania Supreme Court reversed the
discovery order. Commonwealth v. Jones, 802 A.2d 1232 (Pa. 2002).
Thereafter, on March 13, 2003, the PCRA court conducted an
evidentiary hearing. Subsequently, the court denied Appellant’s guilt phase
claims, but awarded penalty relief. Both Appellant and the Commonwealth
appealed. The Supreme Court affirmed the PCRA court’s denial of guilt
phase relief. It also agreed that Appellant’s penalty phase claim regarding
trial counsel’s failure to develop whether Appellant had the capacity to
appreciate the criminality of his actions or conform his conduct to the law
was meritorious. However, Appellant had not adequately layered his claims
relative to appellate counsel. Accordingly, the court remanded. After
remand, the PCRA court reinstated its order finding that Appellant was
entitled to penalty phase relief. The PCRA court entered that order on
August 3, 2007. The Commonwealth did not appeal.
The matter remained dormant until Appellant filed a counseled motion
on March 23, 2009, seeking imposition of life imprisonment and arguing that
the court’s failure to conduct a new penalty phase trial was a violation of
Pa.R.Crim.P. 600 and denied him due process under the Fourteenth
Amendment. On May 22, 2009, the court denied the motion on the basis
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that Rule 600 did not apply to capital re-sentencing. The court certified its
order to allow Appellant to seek an interlocutory appeal by permission.
Initially, Appellant filed that appeal with this Court, which transferred the
matter to the Pennsylvania Supreme Court. The Pennsylvania Supreme
Court denied the petition on September 22, 2009. Commonwealth v.
Jones, 981 A.2d 1285 (Pa. 2009).
Ultimately, the Commonwealth elected not to pursue the death
penalty. The court sentenced Appellant on December 14, 2012, to two
consecutive terms of life imprisonment for the murder charges. Appellant
filed a pro se post-sentence motion and a request to proceed pro se. The
court denied Appellant’s post-sentence motion, but authorized him to
continue pro se.
Appellant filed a timely pro se notice of appeal. In response to
Appellant’s motion to compel the Commonwealth to provide him with the
record and request for an extension to file his brief, this Court, on July 15,
2013, remanded for a Grazier2 hearing to determine if Appellant’s waiver of
counsel was knowing, voluntary and intelligent. The trial court conducted a
Grazier hearing on September 20, 2013, and reaffirmed that Appellant
could proceed pro se. The court also directed that all relevant notes of
testimony and exhibits be provided to Appellant. The matter is now ready
for this Court’s review. Appellant presents two issues for our consideration.
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2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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1. Whether appellant’s speedy trial rights and due process
rights guaranteed by the United States and Pennsylvania
Constitution were violated by the delay between the vacation
of his prior sentence and his resentencing; whether trial court
erred in denying appellant’s motion to dismiss murder
charges due to prejudicial delay in resentencing?
2. Whether appellant’s speedy appeal rights, due process and
equal protection rights guaranteed by the United States
Constitution were violated by the State’s failure to provide
appellant, an indigent pro se litigant, with a full and complete
record per this Court’s order for purpose of meaningful
appellate review, thereby resulting in a delay of this appeal?
Appellant’s brief at 2.
Appellant’s initial issue implicates three separate but interrelated
positions relative to the failure to timely conduct capital resentencing and his
ultimate resentencing to life imprisonment. Appellant’s three distinct and
intertwined arguments fall into the following categories: a violation of his
federal and Pennsylvania constitutional speedy trial rights, a violation of his
federal and Pennsylvania due process right to a speedy re-sentencing, and
an alleged violation of Pa.R.Crim.P. 600.
Appellant contends that the Sixth Amendment, Fourteenth
Amendment, and Article I, § 9 guarantees of a speedy trial and due process
apply to capital resentencing proceedings and the failure to sentence him in
a timely fashion warrants discharge. See Appellant’s brief at 16 (citing
Pollard v. United States, 352 U.S. 354 (1957), Burkett v. Cunningham,
826 F.2d 1208 (3rd Cir. 1987), Commonwealth v. Glass, 586 A.2d 369(Pa. 1991), Commonwealth v. Pounds, 417 A.2d 597 (Pa. 1980), and
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Commonwealth v. Greer, 554 A.2d 980 (Pa.Super. 1989); United States
v. Sanders, 452 F.3d 572 (6th Cir. 2006) (delay in resentencing implicates
due process rights). He accurately points out that in Pennsylvania, in
determining whether a person’s speedy trial rights or due process rights are
violated due to delay, the court looks to the four-part test outlined in Barker
v. Wingo, 407 U.S. 514 (1972). This test first requires the court to
determine if the delay is sufficient to trigger further inquiry. If the delay is
substantial enough to implicate further review, the court balances the delay
with the reasons for the delay, examines whether the defendant timely
asserted his right, and, most importantly, determines if any prejudice
resulted.
Appellant highlights that the length of the delay between the PCRA
court’s award of sentencing relief and his resentencing was over five years.
Noting that shorter delays have elicited review under a speedy trial analysis,
Appellant submits that the reason for the delay was because the court did
not schedule a new penalty phase trial within 120 of the PCRA court’s award
of sentencing relief. See Appellant’s brief at 17 (quoting former
Pa.R.Crim.P. 600(D)(1)). Citing Commonwealth v. Solano, 906 A.2d 1180(Pa. 2006), and Commonwealth v. Bockzowski, 846 A.2d 75 (Pa. 2004),
for the proposition that Rule 600 applies to capital resentencing, Appellant
also argues that “the Commonwealth deliberately failed to make a ‘diligent
good faith effort’ to make a speedy determination of appellant’s case, after
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the court’s August 3, 2007 order granting him a new penalty phase trial.”
Appellant’s brief at 18.
Appellant adds that it is immaterial whether the 120-day period of
Rule 600 or the 365 day time frame is utilized since his capital resentencing
was not conducted within either period. According to Appellant, the
Commonwealth “did absolutely nothing within either time period, following
the August 3, 2007 order granting appellant a new penalty phase trial, to
have the case scheduled for a new penalty phase trial.” Id. In Appellant’s
view, this alleged inaction is “presumptively prejudicial.” Id.Appellant maintains that because the Commonwealth successfully
argued before the lower court that Rule 600 did not apply and the
Pennsylvania Supreme Court denied his interlocutory appeal, his case was
never scheduled for resentencing for over five years. He contends that he
notified the court in September 2008 that he needed to be resentenced and
again on March 23, 2009.3 Since the Commonwealth took no action to
schedule a new penalty phase hearing, Appellant argues that he timely
sought relief and the delay must be attributed to the Commonwealth. In
addition, Appellant suggests that the court below erred in considering
numerous defense continuances because the docket indicates that the
hearings that were continued were PCRA hearings and not his capital
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3
The September filing referenced by Appellant was not docketed with the
Philadelphia Court of Common Pleas, but was a federal habeas petition.
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resentencing. With respect to the prejudice prong of the Barker test,
Appellant claims that he was made to suffer unnecessary anxiety due to fear
of being sentenced to death. Despite being incarcerated for life on another
murder conviction, Appellant argues that he was deprived of his personal
liberty because he was housed on death row and in solitary confinement.
The Commonwealth has not met the minimal appellate requirements of an
appellee by failing to file a timely brief in this matter.
We begin with the language of the respective speedy trial
constitutional provisions. The Sixth Amendment’s speedy trial proviso,
which has been held to apply to the states via the Fourteenth Amendment,
see Klopfer v. North Carolina, 386 U.S. 213 (1967), reads, “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have
been committed[.]” U.S. Const. amend. VI. Similarly, the Pennsylvania
Constitution provides, “in all criminal prosecutions, the accused hath a right
to . . . a speedy public trial by an impartial jury of the vicinage[.]” Pa.Const.
Art. I, § 9. In addition, the Pennsylvania Constitution sets forth that “Trial
by jury shall be as heretofore and the right thereof remain inviolate.”
Pa.Const. Art. 1, § 6. This latter provision has been construed to protect the
same right existing at the time of the ratification of the first Pennsylvania
constitutions. Byers v. Commonwealth, 42 Pa. 89 (1862); see also Van
Swartow v. Commonwealth, 24 Pa. 131 (1854).
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The right to trial by jury was so sacrosanct that it was guaranteed to
Pennsylvania colonists even prior to William Penn’s arrival. See Thomas
Raeburn White, Commentaries on the Constitution of Pennsylvania, 66
(1907). Specifically, it was set forth that:
All trials shall be by twelve men, and as near as may be peers or
equals, and of the neighborhood, and men without just
exception. In cases of life there shall be first twenty four
returned by the Sheriff for a grand inquest, of whom twelve at
least shall find the complaint to be true, and then the twelve
men, or peers, to be likewise returned by the Sheriff, shall have
the final judgment; but reasonable challenges shall always be
admitted against the said twelve or any of them.
Id. quoting Duke of York’s Book of Laws, 100.
The Stamp Act Congress of the American Colonies, wrote in 1765,
“That trial by jury is the inherent and invaluable right of every British subject
in these colonies.” See Duncan v. Louisiana, 391 U.S. 145, 152 (1968).
The First Continental Congress echoed these sentiments in 1774, objecting
to legislation allowing colonists to be tried in Britain. Id. The Declaration of
Independence noted that colonists had been deprived of the right to trial by
jury, and that the King caused colonists to be transported to England for
trial.
In Pennsylvania, those in the minority at the ratification convention for
the federal constitution issued a dissenting address that took issue with the
absence of a bill of rights. Among the amendments the minority believed
should be considered was, “That in all capital and criminal prosecutions, a
man has a right to . . . a speedy trial by an impartial jury of his vicinage,
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without whose unanimous consent, he cannot be found guilty[.]” The
Address and Reasons of Dissent of the Minority of the Convention of
Pennsylvania to their Constituents, reprinted in The Anti-Federalist Papers
and the Constitutional Convention Debates, 239 (Ralph Ketcham, ed. 1986).
The Virginia ratifying convention, upon approval of the federal constitution
absent a bill of rights, recommended the adoption of a similar amendment
that read, “That, in all criminal and capital prosecutions, a man hath a
right . . . to a fair and speedy trial by an impartial jury of his vicinage,
without whose unanimous consent he cannot be found guilty[.]” The
Debates in the Convention of the Commonwealth of Virginia on the Adoption
of the Federal Constitution, June 27, 1788, reprinted in The Anti-Federalist
Papers and the Constitutional Convention Debates, 220 (Ralph Ketcham, ed.
1986).
Alexander Hamilton, writing as Publius in Federalist Paper 83
remarked, “The friends and adversaries of the plan of the convention, if they
agree in nothing else, concur at least in the value they set upon the trial by
jury; or if there is any difference between them it consists in this: the former
regard it as a valuable safeguard to liberty; the latter represent it as the
very palladium of free government.” Federalist Paper 83, reprinted in The
Federalist Papers, 498 (Charles R. Kesler, ed. 1961). Hence, the right to a
speedy jury trial to determine the guilt of an accused was essential to early
American constitutional writers and ratifiers.
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Neither the United States Supreme Court nor the Pennsylvania
Supreme Court has held that the right to a speedy trial applies to
sentencing, let alone resentencing following the award of post-conviction
relief. Rather, more precisely, the respective High Courts have assumed,
without deciding, that the right to a speedy trial extends to an original
sentencing proceeding. See Pollard, supra; Pounds, supra; Glass,
supra; Commonwealth v. Glover, 458 A.2d 935 (Pa. 1983).
Concomitantly, most of the federal circuit courts have either assumed
without analysis or imprecisely concluded that Pollard compels a finding
that the speedy trial right applies to sentencing. United States v. Ray, 578
F.3d 184, 192-193 (2nd Cir. 2009) (collecting cases).
This Court, without meaningful discussion, has held that the speedy
trial guarantee applies to a non-capital sentencing proceeding where the
initial sentence was vacated at the request of the defendant, prior to a direct
appeal, and re-imposed over seven and one-half years later. Greer, supra.
In contrast to Greer’s cursory discussion, the Second Circuit Court of
Appeals has closely examined whether sentencing falls within the ambit of
the Sixth Amendment’s speedy jury trial protection and concluded that the
federal constitutional guarantee does not apply to non-capital resentencing
after a direct appeal remand. See Ray, supra.The Ray Court engaged in an original public meaning analysis, which
this Court is ordinarily required to do when construing our own constitution,
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Monongahela Nav. Co. v. Coons, 6 Watts and Serg. 101, 114 (Pa. 1843);
Stilp v. Commonwealth, 905 A.2d 918, 939 (Pa. 2006), and elucidated
that Sir William Blackstone, in his famous Commentaries on the Laws of
England, distinguished between a trial and the judgment. The judgment,
i.e., imposition of sentence, followed the trial and an adjudication of guilt.
See also Apprendi v. New Jersey, 530 U.S. 466, 479 n.4. (2000) (quoting
Blackstone); id. at 479-480 (footnote omitted) (bracket in original) (“As
Blackstone, among many others, has made clear, ‘[t]he judgment, though
pronounced or awarded by the judges, is not their determination or
sentence, but the determination and sentence of the law.’”).
As the United States Supreme Court recognized in Woodson v. North
Carolina, 428 U.S. 280, 289 (1976) (plurality), “in 1791, the States
uniformly followed the common-law practice of making death the exclusive
and mandatory sentence for certain specified offenses.” Even before 1791,
“the Colonies at the time of the Revolution imposed death sentences on all
persons convicted of any of a considerable number of crimes, typically
including at a minimum, murder, treason, piracy, arson, rape, robbery,
burglary, and sodomy.” Id.Pennsylvania was the first state to categorize murder into degrees and
eliminate an automatic death sentence for certain homicide offenses. See
Woodson, supra; Commonwealth v. Carbone, 544 A.2d 462, 466 n.1
(Pa.Super. 1988) reversed on other grounds 574 A.2d 584 (Pa. 1990). In
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White v. Commonwealth, 6 Binn. 179 (Pa. 1813), the Pennsylvania
Supreme Court noted that, by statute, a jury determined the person’s
degree of guilt, unless a person was convicted by confession, and the court
sentenced accordingly. Where the defendant pled guilty, the court decided
the degree of guilt before imposing sentence. Thus, the jury trial and
sentencing were distinct processes, though the jury determined the facts
necessary to impose a death sentence when the person did not plead guilty.
Id. at 183. The Court observed,
It seems taken for granted, that it would not always appear on
the face of the indictment of what degree the murder was,
because the jury are to ascertain the degree, by their verdict, or
in case of confession, the court are to ascertain it by
examination of witnesses. But if the indictments were so drawn
as plainly to show that the murder was of the first or second
degree, all that the jury need do, would be to find the prisoner
guilty in manner and form as he stands indicted.
Id.4
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4
Professors Nancy J. King and Susan R. Klein, writing in the Vanderbilt Law
Review, have noted,
In Pennsylvania, maximum terms of imprisonment were set by
acts of 1786 and 1790. 1786 Pa. Laws 280-290; 1790 Pa. Laws
293-306 (e.g., up to ten years for robbery, burglary, or
sodomy). In 1794, most sentences for major felonies carried set
minimum as well as maximum ranges. See 1794 Pa. Laws 174-
181 (limiting penalties for, e.g., treason (six to twelve years);
arson (five to twelve years); rape (two to twenty-one years);
second-degree murder (five to eighteen years); forgery (four to
fifteen years)); see also Brief History of Penal Legislation of
Pennsylvania, 1 PA. J. PRISON DISCIPLINE & PHILANTHROPY 1,
3-4 (1845)[.]
(Footnote Continued Next Page)
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It is apparent from the language of the jury trial provisions that the
original public meaning of the term “trial” consisted of the phase of the
criminal prosecution that determined guilt or innocence, not sentencing
procedures. Although Greer requires this Court to consider certain
sentencing claims within the ambit of the federal speedy trial clause, Greer
did not speak to a speedy trial right claim after the award of post-conviction
relief in the nature of a new capital penalty phase hearing. Further, Ray did
not discuss the issue in the context of a capital resentencing proceeding,
which involves distinct concerns not relevant to non-capital sentencing
scenarios.
In this respect, we are aware that capital sentencing in Pennsylvania is
conducted by a jury and, under Pennsylvania’s death penalty scheme and
Ring v. Arizona, 536 U.S. 584 (2002), aggravating facts must be proven to
outweigh any mitigating factors to subject a person to the death penalty.5
Of course, there is no constitutional requirement that these aggravating
factors be determined at a separate penalty phase sentencing hearing.
Ring, supra at 612-613 (Scalia, J., concurring); cf. Spaziano v. Florida,
_______________________
(Footnote Continued)
Nancy J. King & Susan R. Klein, 54 Vand.L.Rev. 1467, 1506 n.134 (May
2001).
5
We are cognizant that our Supreme Court has ruled that the aggravating
facts need not be found to outweigh mitigating circumstances by a beyond
the reasonable doubt standard, only that the aggravating factors be
determined by the reasonable doubt standard. Commonwealth v. Roney,
866 A.2d 351, 359-361 (Pa. 2005).
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468 U.S. 738 (1984) (Sixth Amendment does not require a jury to
determine appropriateness of death penalty); Proffitt v. Florida, 428 U.S.
242, 252 (1976) (plurality) (“it has never [been] suggested that jury
sentencing is constitutionally required.”).
Simply put, the jury-trial right in the Sixth Amendment and Article I,
§ 9 did not guarantee a separate jury trial for purposes of capital sentencing,
only that the facts necessary to impose that sentence be determined during
the actual trial. As discussed, the speedy jury-trial right was intended to
apply to the guilt determination of the accused.
Nonetheless, while capital sentencing was not considered part of a trial
at the time of ratification of the speedy trial provisions, the guilt phase of
the trial would have encompassed the factual determinations that are now
separately decided at sentencing. See Ring, supra; Walton v. Arizona,
497 U.S. 639, 710-711 (1990) (Stevens, J., dissenting) (italics in original)
(“the English jury's role in determining critical facts in homicide cases was
entrenched. As fact-finder, the jury had the power to determine not only
whether the defendant was guilty of homicide but also the degree of the
offense. Moreover, the jury's role in finding facts that would determine a
homicide defendant's eligibility for capital punishment was particularly well
established. Throughout its history, the jury determined which homicide
defendants would be subject to capital punishment by making factual
determinations, many of which related to difficult assessments of the
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defendant's state of mind. By the time the Bill of Rights was adopted, the
jury's right to make these determinations was unquestioned.”); cf. Alleyne
v. United States, 133 S.Ct. 2151 (2013).6
This is in contrast to discretionary sentencing proceedings in non-
capital cases, which did not fall within the parameters of a “trial” under the
original public meaning of the term. See Ray, supra; but compare Greer,
supra; Commonwealth ex rel. Holly v. Ashe, 82 A.2d 244, 251 (Pa.
1951) (Stern, J., dissenting) (“Our Constitution provides in Article I, sec. 9,
P.S. that ‘In all criminal prosecutions the accused hath a right to * * * a
speedy public trial * * *.’ The sentence is part of the trial. If the expiration
of the term is not to be accepted as the limit within which sentence must be
imposed, what alternative limit can be established in order to protect the
rights of a defendant who might otherwise languish indefinitely in jail, even
though perhaps improperly convicted, but unable to appeal to an appellate
court until sentence was imposed?”) (italics in original).
Since Pennsylvania has elected to require a separate proceeding to
determine aggravating factors, that original proceeding under Ring is
included within the jury trial right. It would be incongruous to find that the
jury trial right includes a determination of aggravating factors for purposes
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6
We do not imply that, at the time of ratification of the respective
constitutions, a jury would have been required to find aggravating factors to
sentence a person to death. As Justice Scalia noted in his concurring opinion
in Ring v. Arizona, 536 U.S. 584 (2002), this paradigm has arisen due to
evolving Eighth Amendment jurisprudence.
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of sentencing, but that the initial proceeding that does so is not included
within the speedy trial right protections. Thus, the penalty phase of a capital
trial and necessarily any resentencing under Pennsylvania’s current capital
scheme are part of the constitutional jury trial rights. Compare Ring,
supra at 612-613 (Scalia, J., concurring) (“Those States that leave the
ultimate life-or-death decision to the judge may continue to do so—by
requiring a prior jury finding of aggravating factor in the sentencing phase
or, more simply, by placing the aggravating-factor determination (where it
logically belongs anyway) in the guilt phase.”).
Regardless, the analysis that Pennsylvania courts employ in examining
a due process speedy sentencing question is identical to that utilized for a
speedy trial issue. Indeed, it is largely a matter of semantics whether the
speedy trial right or due process rights are implicated. Succinctly put, even
if the speedy trial provisions do not apply, a court may not delay capital
resentencing indefinitely without constitutional ramifications. Pointedly,
once resentencing is provided, it must accord with due process. See
Clemons v. Mississippi, 494 U.S. 738, 746 (1990) (capital sentencing
must accord with due process); Gardner v. Florida, 430 U.S. 349, 358
(1977) (plurality) (same); Sanders, supra at 580 (delay in resentencing
may run “afoul of due process guarantees”); Ray, supra at 199.7
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7
We recently noted that the phrase “due process” is not contained in the
Pennsylvania Constitution, but the term “law of the land,” used in Article I,
(Footnote Continued Next Page)
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Under both a speedy trial right and due process analysis, Pennsylvania
courts utilize the Barker test discussed by Appellant. Commonwealth v.
West, 938 A.2d 1034, 1045 (Pa. 2007) (collecting cases); see Pounds,
supra; Glover, supra at 664 n.1; compare Sanders, supra (holding Sixth
Amendment jury trial right does not apply to delay in non-capital
resentencing and that, while due process analysis applied, Barker test was
inapt). We agree with Appellant that the over-five-year delay between his
award of PCRA sentencing relief and the imposition of his sentence is
sufficient to trigger further inquiry. Appellant’s claim, however, fails for
reasons we outline below.
First, Appellant did not object to the absence of a new penalty hearing
until March 23, 2009, when he filed a motion for sentencing to life
imprisonment.8 Appellant’s claim that he earlier alerted the Commonwealth
via his federal habeas petition may well be true, but it would not have
alerted the trial court absent a filing with that body. Notably, Appellant had
_______________________
(Footnote Continued)
§ 9, is synonymous with that term. Commonwealth v. Rose, 81 A.3d 123,
126 n.2 (Pa.Super. 2013) (en banc) allowance of appeal granted on other
ground __ A.3d __ (Pa. 2014) (filed July 8, 2014) (citing Craig v. Kline, 65
Pa. 399, 413 (1870); Murray v. Hoboken Land & Imp. Co., 59 U.S. 272,
276 (1855); Commonwealth v. Harrell, 65 A.3d 420, 448 n.10 (Pa.Super.
2013) (Donohue, J. dissenting)).
8
The PCRA judge that awarded sentencing relief indicated in a
September 17, 2009 opinion that neither Appellant nor the Commonwealth
alerted it that, because no appeal had been taken, the case needed to be
listed for a new penalty hearing. The court had scheduled a new penalty
hearing for April 17, 2009. According to the court, Appellant’s counsel
indicated that it could not proceed to the penalty phase hearing at that time.
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an incentive to delay capital resentencing, as he avoided imposition of the
death penalty during that time. As more than a year and one-half elapsed
between the award of a new sentencing and his motion for a sentence of life
imprisonment, Appellant did not timely assert either a speedy trial or due
process right to timely resentencing.
Further, once Appellant did seek to be resentenced, he thereafter
requested numerous continuances. Although Appellant asserts that the
extensions in this matter were continuances of PCRA proceedings and not
sentencing, he is mistaken. Here, the continuances, though listed as
continuances of PCRA hearings on the docket, were unequivocally unrelated
to further PCRA proceedings since Appellant had already achieved PCRA
relief. Rather, the purpose of the continuances was to allow counsel an
opportunity to adequately prepare for a new penalty phase hearing that
would be conducted over twenty-five years after Appellant’s original
convictions.
Appellant first requested a continuance on October 23, 2009.
Subsequently, on March 19, 2010, Appellant again sought a continuance to
review voluminous material. The court granted an additional continuance on
April 29, 2011, to allow defense counsel to review Appellant’s habeas corpus
file. The Commonwealth and Appellant received a joint continuance to
review litigation material on August 19, 2011. The court relisted the matter
three additional times in 2011: on September 30, October 21, and
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November 18, 2011. On January 13, 2012, the court entered an order
indicating that Appellant’s attorneys were unavailable until 2013.
Appellant’s attorneys on that date had filed a continuance motion requesting
additional time for further penalty phase preparation. Appellant received yet
another continuance on March 15, 2012, based on a request for additional
investigation. Slightly over a month later, on April 26, 2012, the trial court
granted Appellant a continuance to prepare a motion seeking to preclude the
death penalty as well as to prepare for the new penalty phase proceeding.
Thereafter, Appellant filed a motion to bar the death penalty on
May 24, 2012, and a continuance motion. On August 16, 2012, the trial
court granted a continuance motion because the defense was unready to
proceed. The defense filed an additional request for further investigation on
September 27, 2012, and the court scheduled the matter for November 15,
2012. On that date, the court listed the case for resentencing as a non-
capital matter for December 14, 2012. The court imposed two consecutive
life sentences on that date.
Thus, the record conclusively establishes that, once Appellant
requested sentencing, it was his own continuance requests that delayed
sentencing. Furthermore, we discern no prejudice to Appellant. We
disagree with Appellant’s assertion that a speedy capital resentencing claim
entitles him to discharge where a jury duly convicted him of the underlying
murders. Appellant relies on case law that does not involve capital
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resentencing. The appropriate remedy would be to preclude imposition of
the death penalty, as he himself argued below in his motion for sentencing
to life imprisonment, not complete discharge. As the Commonwealth did not
seek imposition of the death penalty, Appellant suffered no prejudice due to
the alleged delay in his capital resentencing.9
While Appellant’s constitutional claims fail, the Pennsylvania Supreme
Court has accurately noted that Rule 600 provides an “independent bases for
asserting a claim of undue delay in appropriate cases.” Solano, supra at
1188 n.7. Rule 600 has never been construed as applying to capital
resentencing, likely because defendants rarely seek to expedite the
possibility of being sentenced to death. The current version of Rule 600 was
not effective until July 1, 2013; therefore, it would be inapplicable even if we
____________________________________________
9
The concurring decision maintains that our discussion of capital
resentencing is dicta. However, our discussion is necessary to resolve
Appellant’s issues. Moreover, the fact that Appellant was not capitally
sentenced does not render his argument that he was deprived of a
constitutional speedy resentencing moot. Appellant’s argument is that,
because the Commonwealth did not conduct a capital resentencing hearing
in a timely fashion, he should be entirely discharged. If there is no
constitutional speedy trial right to capital resentencing in the first instance
then his claim that he should be discharged would fail on that ground, i.e,
the constitutional speedy trial protections do not impact capital
resentencing. Simply put, if the term “trial” does not include capital
resentencing, he had no constitutional right to a speedy capital resentencing
hearing. That he was ultimately not resentenced capitally does not make
our discussion dicta because Appellant’s position is that the very failure to
conduct a capital sentencing hearing resulted in prejudice and that his
ultimate sentence of life imprisonment violated his speedy trial rights. Our
discussion would only be dicta if we purported to hold that Appellant could
not be subject to the death penalty based on the delay, since Appellant is
not on death row.
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were to find Rule 600 applies. Accordingly, we must look to the version of
Rule 600 in effect during the relevant period. That rule provided in its
entirety:
(A)(1) Trial in a court case in which a written complaint is filed
against the defendant after June 30, 1973 but before July 1,
1974 shall commence no later than 270 days from the date on
which the complaint is filed.
(2) Trial in a court case in which a written complaint is filed
against the defendant, when the defendant is incarcerated on
that case, shall commence no later than 180 days from the date
on which the complaint is filed.
(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.
(4) Trial in a court case that is transferred from the juvenile
court to the trial or criminal division shall commence in
accordance with the provision set out in paragraphs (A)(2) and
(A)(3) except that the time is to run from the date of filing the
transfer order.
(B) 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.
(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:
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(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.
(D)(1) When a trial court has granted a new trial and no appeal
has been perfected, the new trial shall commence within 120
days after the date of the order granting a new trial, if the
defendant is incarcerated on that case. If the defendant has
been released on bail, trial shall commence within 365 days of
the trial court's order.
(2) When an appellate court has remanded a case to the trial
court, if the defendant is incarcerated on that case, trial shall
commence within 120 days after the date of remand as it
appears in the appellate court docket. If the defendant has been
released on bail, trial shall commence within 365 days after the
date of remand.
(3) When a trial court has ordered that a defendant's
participation in the ARD program be terminated pursuant to Rule
184, trial shall commence within 120 days of the termination
order if the defendant is incarcerated on that case. If the
defendant has been released on bail, trial shall commence within
365 days of the termination order.
(E) No defendant shall be held in pre-trial incarceration on a
given case for a period exceeding 180 days excluding time
described in paragraph (C) above. Any defendant held in excess
of 180 days is entitled upon petition to immediate release on
nominal bail.
(F) Nothing in this rule shall be construed to modify any time
limit contained in any statute of limitations.
(G) For defendants on bail after the expiration of 365 days, at
any time before trial, the defendant or the defendant's attorney
may apply to the court for an order dismissing the charges with
prejudice on the ground that this rule has been violated. A copy
of such motion shall be served upon the attorney for the
Commonwealth, who shall also have the right to be heard
thereon.
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If the court, upon hearing, shall determine that the
Commonwealth exercised due diligence and that the
circumstances occasioning the postponement were beyond the
control of the Commonwealth, the motion to dismiss shall be
denied and the case shall be listed for trial on a date certain. If,
on any successive listing of the case, the Commonwealth is not
prepared to proceed to trial on the date fixed, the court shall
determine whether the Commonwealth exercised due diligence
in attempting to be prepared to proceed to trial. If, at any time,
it is determined that the Commonwealth did not exercise due
diligence, the court shall dismiss the charges and discharge the
defendant.
In the event the case is dismissed pursuant to this paragraph,
the court shall promptly prepare a report of continuances by the
Commonwealth, and the reasons therefor, which prevented the
case from coming to trial as required by this rule. Such report
shall be certified by the president judge or administrative judge,
shall be made part of the public record of the case, and shall be
sent to the Court Administrator of Pennsylvania within 20 days of
the order of discharge.
Pa.R.Crim.P. 600 (effective to July 1, 2013).
We construe criminal rules of procedure based on the Statutory
Construction Act. Pa.R.Crim.P. 101(C); Commonwealth v. Far, 46 A.3d
709, 712 (Pa. 2012); Commonwealth v. Williams, 9 A.3d 613, 618 (Pa.
2010). Accordingly, we must “ascertain and effectuate the intent of the
drafters, a task that is best accomplished by considering the plain language
of the provision(s) at issue.” Far, supra at 712. Where the “words are not
explicit, then the court must consider various other indicia of intent, such as
the object and necessity of the rule and the mischief meant to be remedied.”
Id. In interpreting the rules, we “give effect to all their provisions, and a
single rule should not be read in a vacuum, especially where there is an
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apparent interrelationship among rules.” Id. “We may consult the
explanatory comments of the committee that worked on a rule” to determine
its original meaning. Id. at 713.
As noted, Appellant contends that the Commonwealth was required to
conduct his resentencing within 120 or 365 days of the award of PCRA relief
in the nature of a new penalty phase hearing. We find that the term “trial”
in Rule 600 does not apply to capital sentencing, let alone resentencing. Cf.
Commonwealth v. Hill, 422 A.3d 1385, 1388 (Pa.Super. 1980) (in a non-
capital case, the court summarily found that Rule 600’s predecessor, Rule
1100, “has no relevance to sentencing”). First, the Pennsylvania Supreme
Court has promulgated a separate rule that deals with an initial speedy
sentencing, Pa.R.Crim.P. 704.10 Hence, Rule 600 was not intended to apply
to an original sentencing proceeding. Pointedly, the Pennsylvania Supreme
Court has noted that Rule 600’s dismissal provision does not, by its plain
language, apply to capital defendants for purposes of an initial trial.
Commonwealth v. Laird, 988 A.2d 618, 633 (Pa. 2010). Nonetheless, it
has applied Rule 600 to the commencement of the initial adjudication of
guilt, see Solano, supra, as well as a guilt phase retrial after the award of
federal habeas relief. Laird, supra.
____________________________________________
10
Rule 704 has not been applied to resentencing. Commonwealth v. Fox,
953 A.2d 808 (Pa.Super. 2008).
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Importantly, the word “trial” in Rule 600, when read in context, does
not apply to capital sentencing or capital resentencing after the grant of
PCRA relief. Rule 600(A) used the term “trial” to denote the beginning of
the proceeding for an adjudication of guilt. Similarly, Rule 600(B) indicated
that a trial began when the case was called for trial, or the defendant
entered a plea. The reference to pleas in conjunction with when a case is
called for trial plainly connotes that the Supreme Court intended to refer to a
trial proceeding under the common understanding of the term and not to
capital sentencing. Rule 600(C)(1) also unequivocally is directed toward the
ordinary understanding of the word “trial.” Concomitantly, Rule 600(D)(3),
which applies to ARD, uses the phrase “trial” in its ordinary sense. Further,
Rule 600(E) has no application to capital defendants. See Pa. Const. Art. I,
§ 14 (precluding bail for murder defendants); see also Commonwealth v.
Hill, 736 A.2d 578, 583 (Pa. 1999); cf. Commonwealth v. Sloan, 907
A.2d 460 (Pa. 2006).
As discussed, Rule 600(G), the discharge provision of Rule 600, does
not, by its plain language, apply to capital defendants since they are not on
bail or eligible for bail. Only through court rulings has this portion of the rule
been extended to the initial trial proceeding. Thus, we are left with Rule
600(D)(1) and (2). Appellant’s argument relates to Rule 600(D)(1). That
provision sets forth that “[w]hen a trial court” grants a new trial and no
appeal follows, “the new trial shall commence within 120 days after the date
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of the order granting a new trial, if the defendant is incarcerated on that
case. If the defendant has been released on bail, trial shall commence within
365 days of the trial court's order.” Former Rule 600(D)(1).
The fact that a longer period is granted for those on bail than those
incarcerated strongly suggests that the rule was not intended to apply to the
arduous task of capital resentencing proceedings after PCRA relief, which
require lengthy and intensive preparation. Also, the court that awarded
sentencing relief herein was not acting in its capacity as the criminal trial
judge, but as a PCRA court during collateral proceedings. Hence, it can be
said that no new sentencing was granted by a trial court. Rule 600(D)(1)
was intended to apply to the situation where a trial court awards a new trial
before the period for filing a direct appeal, not capital resentencing after the
grant of PCRA relief.
We add that the purpose behind Rule 600 and the mischief to be
remedied was not delay in capital resentencing cases. The Pennsylvania
Supreme Court enacted the predecessor to Rule 600, Rule 1100, to address
delay in the commencement of initial trial proceedings. See
Commonwealth v. Hamilton, 297 A.2d 127 (Pa. 1972) (calling for
adoption of procedural rule addressing setting a maximum time to bring a
defendant to trial after the institution of charges); see also Hill, 736 A.2d
at 580 (discussing Rule 1100 and stating the rule, “is intended to reduce the
backlog of cases awaiting trial and to ‘formulate a rule of criminal procedure
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fixing a maximum time limit’ to bring an accused to trial.”). For all of these
reasons, we hold that former Rule 600(D)(1) does not apply to resentencing
after the award of post-conviction relief.11
Having resolved Appellant’s initial issue, we proceed to his second
claim. Appellant alleges that his speedy appeal rights, due process and
equal protection rights were violated by the trial court’s failure to provide
him with a full and complete record. This issue is meritless. Initially, we
note that Appellant’s appeal has not been unnecessarily delayed. Further,
____________________________________________
11
The concurring author concludes that our Rule 600 analysis is dicta. This
misapprehends both Appellant’s argument and the definition of dicta.
Appellant’s claim is that he should be discharged under Rule 600 because he
was not resentenced, either capitally or to life imprisonment, within the
appropriate Rule 600 time-frame. That issue fails because Rule 600 does
not apply to sentencing procedures after the award of PCRA sentencing
relief.
We are aware that we have discussed that capital resentencing falls
within the constitutional speedy trial and due process protections but not the
criminal speedy trial procedural rule. Contrary to the concurrence’s
suggestion, there is nothing incongruous about finding that Rule 600 does
not apply and the respective constitutional provisions do because Rule 600
was intended to offer greater protections. The concurrence simply ignores
the intent of Rule 600. It is immaterial that Rule 600 was intended to offer
greater protections than the respective constitutional provisions for the
period between when a person is charged and brought to trial. Rule 600
was not intended to apply at all to the sentencing situation presented herein.
Thus, since Rule 600 has no application to resentencing under these facts it
is a non-sequitur that Rule 600 generally provides more protection than the
constitutional speedy trial clauses. Pointedly, the meaning of the term “trial”
for each is based on differing considerations. Indeed, we have noted that
the original public meaning of the word “trial” did not encompass sentencing
and it is only as a result of the bifurcation of capital cases by statute and the
historical role of a jury that capital sentencing would be included within the
constitutional speedy jury trial rights in Pennsylvania.
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our review of Appellant’s resentencing claims has not been impeded by the
lack of any purported transcripts. Moreover, there would not be any
transcripts relative to continuances, which appears to be Appellant’s primary
complaint, and transcripts pertaining to the trial and original sentencing,
which are part of the record, are unnecessary to resolve his current issues.
Appellant’s briefing could not be inhibited by the lack of non-existent
transcripts for continuances, and his appeal has not been unnecessarily
delayed.
Judgment of sentence affirmed.
Judge Wecht files a Concurring Memorandum in which Justice
Fitzgerald Concurs in the Result.
Justice Fitzgerald Concurs in the Result in this Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2014
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