Commonwealth v. Hayden

1

COMMONWEALTH OF PENNSYLVANI Appellant v. AKEEM HAYDEN

No. 431 EDA 2023

No. J-A01031-24

Superior Court of Pennsylvania

April 15, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Dated January 30, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s) CP-51-CR-0005339-2022.

Benjamin D. Kohler, Esq.

BEFORE: LAZARUS, P.J., PANELLA, P.J.E, and COLINS J.^[*]

MEMORANDUM

COLINS, J.:

The Commonwealth appeals from an order of the Court of Common Pleas of Philadelphia County dismissing the charges of Driving Under the Influence ("DUI") and Driving While Operating Privileges Suspended ("DUS")^[1] pursuant to Pennsylvania Rule of Criminal Procedure 600 ("Rule 600"). After careful review, we affirm.

On December 17, 2021, at 10:22 p.m., Appellee, Akeem Hayden, was in the driver's seat of his Mitsubishi SUV stopped in a driving lane at the intersection of 40^th and Spring Garden Streets in Philadelphia. Officer Natalie Biondo saw that the SUV was impeding traffic, as several cars had to go into the opposite driving lane to get around it. Officer Biondo turned on her siren to get the driver to move the car. There was no response. She exited her patrol car to check on the well-being of the driver. Appellee was passed out in the car, with the engine running. Officer Biondo could not arouse him, either by speaking to him or shaking him. There was an open can of beer in the center console. EMTs arrived, who were successful in waking Appellee. The odor of alcohol emanated from his breath when he spoke. When appellee refused to go to the hospital, he was arrested and taken to the Police Detention Unit. There, AID Officer Jamanda Beard-Smith attempted to test Appellee, but he refused. Appellee's certified driving history demonstrated that at the time of his arrest, his license had been suspended due to prior DUI convictions. N.T. 6/17/22 - Municipal Court Trial, 6-10, 13-17, 18, 21.

On June 17, 2022, the Honorable Marvin L. Williams of the Municipal Court of Philadelphia found Appellee guilty of DUI and DUS. He imposed a term of six months' reporting probation and fined Appellee. On July 19, 2022, the same day that he was sentenced, Appellee filed a timely appeal for a trial de novo in the Court of Common Pleas. See Pa.R.Crim.P. 1006(A)(1)^2] Following the appeal, court administration scheduled the following pre-trial proceedings. Two weeks after the filing of the appeal, on August 2, 2022, Appellee's formal arraignment was scheduled and held.

On October 3, 2022, the first and only status listing was scheduled and held. At the status listing, the defense requested a Form 229 that had not been produced in discovery. The form is usually prepared by an arresting officer, and generally repeats the incident information from a different form - which had been produced in this case - along with biographical information for the arrestee and contact information for witnesses, if any. Appellee did not know if a Form 229 had been prepared in this case. The Assistant District Attorney who had handled the Municipal Court trial informed the trial court that Officer Beard-Smith had said there was no Form 229, but that Officer Biondo had "indicated there possibly may be," and so she would investigate. The trial court responded, "ok, just notify defense counsel." N.T. 10/3/22 - Status Listing, 3.

On January 23, 2023, the first and only pretrial conference was held. The defense attorney stated that the Form 229 requested at the last listing had not been produced, and "otherwise" the defense was ready for trial. A newly assigned Assistant District Attorney reported that the Commonwealth was ready for trial. With respect to the Form 229, she stated much the same information as had been forwarded at the October status listing, while claiming the police department was still trying to locate the form. She also suggested should the form not be located that it could be excluded from trial with a negative inference drawn. Defense counsel agreed. The trial court ruled that the date for trial would remain, and if the Form 229 was not produced to the defense at least three days prior to trial, it would be excluded. N.T. 1/23/23 - Pre-Trial Conference, 4-5.

On January 30, 2023, the first trial date was reached. Defendant had filed a Motion to Dismiss pursuant to Rule 1013(G). The defense still had not been provided with the Form 229. The prosecutor reiterated the information from a week before, which she stated she had confirmed with the Municipal Court trial prosecutor. She then reiterated the prior agreement for the court to draw a negative inference from the lack of a Form 229, noting that in this instance it would only be duplicative of information produced to the defense. When the trial court sought clarification, the prosecutor asserted that the Form 229 did not exist, rather than being an extant document that had not been produced in discovery. N.T. 1/30/23, 4-6.

Following this discussion, the trial court held the Rule 1013(G) evidentiary hearing. Defense counsel acknowledged on the record that a Form 229 has "limited evidentiary value," but argued that the Commonwealth still had to produce it once it had been "ordered" to do so by the court. N.T. 1/30/23 - Motion, 9. Discovery sanctions such as drawing a negative inference were not an appropriate substitute for due diligence. Id. Further, the defense argued, the Commonwealth could not demonstrate due diligence because it had only to produce the Form 229 over several months and had failed to do so. Id., 10.

Believing that a Form 229 had been prepared in this case, the defense called Officer Biondo to testify. She was the first officer to come in contact with Appellee. N.T. 1/30/23 - Motion, 10. Officer Biondo, however, only stated that a Form 229 "should exist" and that the District Attorney's Office had not reached out to her to acquire any document. Id., 11. Under cross-examination, she admitted that she does not keep all of her paperwork, and if she had prepared paperwork in connection with an arrest and was not the officer who transported the arrestee, then the paperwork she created would have been given to the officer transporting the arrestee. Id., 12-13. Officer Biondo did not transport Appellee the night he was arrested. Id., 12. When questioned by the court, Officer Biondo recalled creating some documents in connection with Appellee's arrest but did not have any specific recall on whether that included a Form 229. Id., 13. It would not have been unusual for the transport officer to prepare a Form 229. Id.

After this testimony, the Commonwealth acknowledged that under Commonwealth v. Harth, 252 A.3d 600 (Pa. 2021), it had to prove its due diligence through the entirety of the case before any delay caused by judicial scheduling could be considered. N.T. 1/30/23, 15. The trial court then walked the prosecutor through what had been done since the court "ordered the Commonwealth to produce [the Form 229] on a status date," and again "on the pretrial date." Id., 20. The prosecutor explained that the trial court only orders police documents to be produced if the "actual piece of paperwork does exist," and then explained that the previously-assigned Assistant District Attorney tried to determine whether the Form 229 existed, but could not do so. Id., 21-22. The markings on the Commonwealth's trial file were entered into evidence to document that the court had been informed by each of the assigned prosecutors of their belief the document did not exist. Id., 21. The Commonwealth then argued that judicial delay, not the Commonwealth, caused trial to be scheduled past the run date. Id., 25-26. There had been no continuances, all of the "important" discovery had been produced and the 195-day period since the de novo trial appeal had been taken up by necessary proceedings - formal arraignment, status listing and pre-trial conference - dictated by judicial administration scheduling. Id.

Appellee's counsel argued that the Commonwealth failed to prove its due diligence, because it did not document any of the efforts made by the previously assigned prosecutor to determine if the Form 229 existed and Officer Biondi had testified that no one ever asked her about it. N.T. 1/30/23, 15, 26-27. In addition, Appellee's counsel argued that the Form 229 had become mandatory discovery once the trial court ordered it to be produced, at a minimum, placing an obligation on the Commonwealth to obtain it (or determine its non-existence) to demonstrate its due diligence. Id., 28-29. Noting that the form might not be necessary, and while both the defense and Commonwealth might be able to go to trial without it, the Commonwealth had to prove its due diligence because the run period had expired. Id., 30.

The trial court ruled that the Commonwealth had not demonstrated due diligence in the pre-trial period with respect to obtaining the document, which the court had ordered to be produced if it existed. It noted that the Commonwealth did not provide dates, much less documentation, of when specific efforts were made by the assigned prosecutors. In particular, it stated that it wanted to hear from the previously assigned prosecutor, whom the present prosecutor alleged had made all of the efforts to locate the Form 229. The trial court noted that the only evidence presented established that the Commonwealth's search for the document did not extend to asking Officer Biondo about it, even though there was a court order for production of the form. The Commonwealth had five months to produce the form or determine it had never been created. It accomplished neither. The trial court granted Appellee's motion and dismissed the charges with prejudice. N.T. 1/30...