Commonwealth v. Wright

1

COMMONWEALTH OF PENNSYLVANIA v. MICHAEL WRIGHT Appellant

No. 2184 EDA 2021

Superior Court of Pennsylvania

August 11, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered September 24, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s) CP-23-MD-0002273-2021

Joseph D. Seletyn, Esq.

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM

McCAFFERY, J.

Michael Wright (Appellant) appeals from the order entered in the Delaware County Court of Common Pleas, denying, without a hearing, his pro se motion to dismiss charges of first-degree murder^[1] and related offenses, for an alleged violation of the speedy trial provisions of the Interstate Agreement on Detainers Act^[2] (IAD). Appellant's subsequently appointed attorney, William Wismer, Esquire (Counsel), has filed an Anders^[3] petition to withdraw and brief. Counsel contends the IAD did not apply at the time Appellant sought relief because he was not serving a sentence in the other jurisdiction. Meanwhile, the trial court opines this is an interlocutory appeal, taken from a non-final order, that should be quashed. We conclude we have jurisdiction over this interlocutory appeal, but affirm the order. We also deny Counsel's petition to withdraw without prejudice to seek withdrawal before the trial court.

I. Procedural History

On October 30, 2019, Appellant was arrested on federal drug charges and has since been held in federal custody. See Trial Ct. Op., 5/18/22, at 1; Anders Brief, Appendix B (copy of Appellant's criminal judgment in the United States District Court of the Eastern District of Pennsylvania, Docket 2:19-CR-00636-005).

On September 4, 2020, Appellant was charged in the instant matter with first-degree murder, firearms offenses, and related charges. On September 9th, he was transported to the Delaware County District Court for a hearing, where the charges were held over. Appellant was then returned to federal prison. On November 4th, Delaware County lodged a detainer against

Appellant.

On September 21, 2021, Appellant filed the underlying pro se motion to dismiss his state charges, asserting a violation of the IAD. He argued that in violation of Articles III and IV, he was denied final disposition of his charges within 180 days of his "release to" Pennsylvania, "the charging jurisdiction." Appellant's Motion to Dismiss Charges, 9/21/21, at 3.

We first note:

The IAD is an agreement between [48] states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States, that establishes procedures 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).

Section 9101 of the IAD, Articles III and IV, provide:

Article III

(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 . . . .

Article IV

(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment . . . made available . . . upon presentation of a written request for temporary custody . . . .

(c) In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state . . . .

42 Pa.C.S. § 9101, Art. III(a), IV(a), (c) (emphases added). "Our Supreme Court has held that Article IV of the IAD is not triggered unless the Commonwealth files a detainer against an individual and then files a request for custody of that individual." Commonwealth v. Leak, 22 A.3d 1036, 1040 (Pa. Super. 2011), citing Davis, 786 A.2d at 176.

The trial court denied the motion without a hearing on September 24, 2021, and Appellant filed a pro se notice of appeal on October 20th.^[4] On February 11, 2022, this Court issued a per curiam order, directing Appellant to show cause why this appeal should not be quashed as interlocutory. See Pa.R.A.P. 341(a) (appeal may generally be taken as of right from any final order), (b) ("A final order is any order that . . . disposes of all claims and of all parties."). Appellant filed a pro se response.

Subsequently, on April 27, 2022, pursuant to this Court's directive, the trial court appointed current Counsel to represent Appellant. On July 11th, this Court directed Counsel to show cause why the appeal should not be quashed as interlocutory. Counsel responded this appeal should proceed under case authority that has permitted appeals from the denial of Pa.R.Crim.P. 600 speedy trial-motions, where there was no hearing. See Appellant's Response to Rule to Show Cause, 7/20/22, at 3, citing, inter alia, Commonwealth v. Swartz, 579 A.2d 978, 980 (Pa. Super. 1990) ("Without . . . a hearing, appellant's right to a speedy trial will not be adequately protected in a post-trial review on appeal."). This Court discharged the two rule to show cause-orders, but referred the issue of appealability to the merits panel. Order, 9/6/22.

II. Appealability of Order

Preliminarily, we review whether this Court has jurisdiction over this appeal. This Court

has appellate jurisdiction of all appeals from final orders of the courts of common pleas. 42 [Pa.C.S. § 742.] A final order is one that ends the litigation or disposes of the entire case. In criminal cases, a defendant generally may appeal only from a judgment of sentence. . . .

The rule of finality, however, is not absolute. An interlocutory order is considered final and appealable if it satisfies an exception for collateral orders. Under this exception, an order is immediately appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. . . . See also [Pa.R.A.P.] 313 . . . .

Commonwealth v. Johnson, 705 A.2d 830, 832 (Pa. 1998) (some citations & footnote omitted).

In the response to this Court's rule to show cause order, Counsel stated he uncovered no decisional authority allowing an appeal from an interlocutory order denying a motion to dismiss under the IAD. Appellant's Response to Rule to Show Cause at 3. However, Counsel reasoned, this Court has permitted appeals from the denial of Rule 600-speedy trial motions where there was no hearing, and the policy concerns of Rule 600 are similar to those of the IAD. We agree.

In Swartz, this Court held the defendant could appeal from a prejudgment of sentence interlocutory order, which denied his motion to dismiss the charges under Pa.R.Crim.P. 1100, the predecessor to Rule 600. Swartz, 579 A.2d at 980-81. The Court distinguished cases in which a speedy-trial hearing was held. Id. at 980, citing Commonwealth v. Myers, 322 A.2d 131, 133 (1974) (where there was a hearing before trial court, the defendant's right to a speedy trial could be adequately protected in a review following trial). The Swartz Court reasoned that without a hearing, the defendant's "right to a speedy trial will not be adequately protected in a post-trial review on appeal." Swartz, 579 A.2d at 980.

We note Rule 600 serves two policy purposes: "(1) the protection of the accused's speedy trial rights, and (2) the protection of society." Commonwealth v. Carl, 276 A.3d 743, 748 (Pa. Super. 2022) (citation omitted), appeal denied, 2023 WL 2007969 (Pa. 2023). Meanwhile, "[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. Destephano, 87 A.3d 361, 364 (Pa. Super. 2014) (citation omitted). Furthermore, as Counsel noted in the response to the rule to show cause, "[b]ecause the [IAD] legislation is remedial in character, it is to be liberally construed in favor of the prisoner so as to effectuate its purpose." Appellant's Response to Rule to Show Cause at 5, quoting Commonwealth v. Thornhill, 601 A.2d 842, 846 (Pa. Super. 1992) (citation omitted).

We determine that Rule 600 and the IAD serve overlapping purposes -the speedy and expeditious disposition of a defendant's charges. To this end, where there was no hearing on a defendant's IAD motion to dismiss, the reasoning of Swartz is relevant - a defendant's "right to a speedy trial will not be adequately protected in a post-trial review on appeal." See Swartz, 579 A.2d at 980. Thus, we decline to quash this appeal as improperly taken.

III. Anders Petition to Withdraw & Brief

Next we review Counsel's Anders petition to withdraw, along with the brief addressing the merits of Appellant's IAD Act dismissal claim. When an attorney seeks to withdraw under Anders, we first examine the request to withdraw before addressing the merits of the issue raised on appeal. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc)....