Com. v. Crosby, C.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2022
• Docket: 1401 MDA 2021
• Status: Unpublished

Opinion

J-S18029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLIFF CROSBY : : Appellant : No. 1401 MDA 2021

Appeal from the Judgment of Sentence Entered September 2, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000577-2021

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: SEPTEMBER 9, 2022

Cliff Crosby appeals the judgment of sentence following his jury trial

convictions for possession with intent to deliver (“PWID”) and criminal use of

communication facility.1 Crosby alleges that the trial court erred in denying

his motion to dismiss pursuant to Rule 600 of the Pennsylvania Rules of

Criminal Procedure and his motion to dismiss for a violation of his

constitutional right to a speedy trial. We affirm on the basis of the opinion of

the Honorable Scott Arthur Evans.

On July 25, 2019, the Commonwealth filed a criminal complaint against

Crosby. The court held a preliminary hearing on February 11, 2021. It held an

arraignment hearing on February 23, 2021. The Commonwealth originally

scheduled Crosby’s trial for March 8, 2021, but it was continued to April 12,

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1 35 P.S. § 780–113(a)(30) and 18 Pa.C.S.A. § 7512, respectively. J-S18029-22

due to a lack of availability of a courtroom to hold the trial. On March 26,

Crosby filed a motion to dismiss pursuant to Rule 600. On April 9, the trial

was continued to May 17. The court held a hearing on the motion on April 23.

At the hearing, the parties agreed that the periods of March 18, 2020,

through August 31, 2020, and December 7, 2020, through March 7, 2021,

were excludable due to an order providing that these periods “shall” be

excluded from the calculation of Rule 600(C) due to the COVID-19 pandemic.

See N.T., Rule 600 Motion, 4/23/21, at 4; Declarations dated 3/18/20,

4/1/20, 5/29/20; 6/2/20; 12/11/20.

The Commonwealth presented testimony from Kurt Zitsch, the affiant

of the criminal complaint. N.T., Rule 600 Motion, at 4-5. Zitsch testified that

after filing the complaint, the only measure he took to find Crosby was

“forward[ing] a copy of the complaint and warrant to Sergeant Meik” so that

he was aware of the arrest warrant for Crosby. Id. at 5. He testified that on

November 5, 2020, the warrant control unit informed him that Crosby had

been incarcerated since July 2020. Id. at 6. Upon receiving this information,

Zitsch “contacted the Magisterial District Judge’s Pianka’s office and made

them aware to move forward to have him arraigned and move forward with a

preliminary hearing.” Id.

During argument, the Commonwealth contended that Zitsch’s contact

with the court upon learning of Crosby’s incarcerated status “constitutes an

action to bring the case to trial[.]” Id. at 14. The Commonwealth also stated

that it listed the case for trial during the March trial term. However, the case

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was listed as a backup and ultimately had to be given a new date “because

jury selection had already taken place for the March trial term there." Id.

Defense counsel argued that the Commonwealth did not act with due diligence

to locate Crosby after filing the criminal complaint. Id. at 10-11.

The court denied the motion on April 26. It concluded that the

Commonwealth did not exercise due diligence between the filing of the

complaint and November 5, when it learned that Crosby was incarcerated.

See Memorandum Opinion and Order of Court, filed 4/26/21, at 4. However,

it determined that the Commonwealth operated with due diligence between

the periods of November 5 through December 7 and March 8 through March

26, amounting to 50 days of excludable time. Id. It also concluded that the

periods of March 18, 2020, through August 31, 2020, and December 7, 2020,

through March 7, 2021, were also excludable due to the court’s order

suspending Rule 600 because of the COVID-19 pandemic. Id. at 6.

On May 13, 2021, Crosby requested a continuance for trial until June

21. On May 27, Crosby filed a motion to dismiss arguing that his right to a

speedy trial under state and federal constitutions had been violated. The court

denied the motion on June 2. Crosby proceeded to trial on June 21. The jury

found him guilty of two counts each of PWID and criminal use of

communication facility. The trial court sentenced Crosby to an aggregate term

of six to 20 years’ incarceration. Crosby filed a post-sentence motion which

the trial court denied. This timely appeal followed.

Crosby presents two issues for our review:

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I. Did not the court err in denying [Crosby’s] motion to dismiss pursuant to Pa.R.Crim.P. 600?

II. Did not the court err in denying [Crosby’s] motion to dismiss based on a violation of his speedy trial rights under the United States and Pennsylvania Constitutions?

Crosby’s Br. at 5 (suggested answers omitted).

Crosby’s first claim challenges the court’s denial of his Rule 600 motion.

He maintains that the trial court erred in concluding that 50 days were

excludable. He argues that the periods from November 5, 2020 through

December 7, 2020, and from March 8, 2021 through March 26, 2021, were

not excludable. For the period of November through December, he alleges

that the Commonwealth provides no explanation for why it should be

excluded, and the time instead should be characterized as the normal

progression of the case. Regarding the period from March 8 through March

26, he maintains that though the case was listed for trial on March 8, the

Commonwealth could not go to trial on that date because another case was

listed for trial in the courtroom. He states that the Commonwealth did not

explain why that case was given priority over his.

Our standard of review of a trial court’s decision of a defendant’s Rule

600 motion is that of an abuse of discretion. See Commonwealth v. Leaner,

202 A.3d 749, 765-66 (Pa.Super. 2019). Our scope of review is limited to the

evidence presented at the Rule 600 motion hearing and the court’s findings of

fact. See Commonwealth v. Watson, 140 A.3d 696, 698 (Pa.Super. 2016).

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We “view the facts in the light most favorable to the prevailing party.” Id.

(citation omitted). To determine the proper calculation of time, a court should

determine the mechanical run date, determine any excludable time, and then

add the amount of excludable time to the mechanical run date to determine

the adjusted run date. See Commonwealth v. Wendel, 165 A.3d 952, 956

(Pa.Super. 2017).

Rule 600 provides that when a criminal complaint has been filed against

a defendant, the trial for that defendant must commence within 365 days.

See Pa.R.Crim.P. 600(A)(2)(a). To determine if the trial began within the

prescribed number of days, “periods of delay at any stage of the proceedings

caused by the Commonwealth when the Commonwealth has failed to exercise

due diligence shall be included in the computation of the time within which

trial must commence.” Id. at 600(C)(1). Rule 600 also provides that other

forms of delay may be excluded, including time attributable to the court and

delay that occurs despite the Commonwealth’s exercise of due diligence. Id.

at 600(C)(1)-(2).

Determining whether the Commonwealth exercised due diligence is a

fact-specific, case-by-case, inquiry, that “does not require perfect vigilance

and punctilious care, but merely a showing the Commonwealth has put forth

a reasonable effort.” Id. at 600, cmt. (citations omitted). Furthermore, “the

Commonwealth is required to demonstrate that it acted with due diligence

during a time period before that period can be deemed excludable.”

Commonwealth v. Harth, 252 A.3d 600, 617 (Pa. 2021) (emphasis

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omitted). “[W]here a trial-ready prosecutor must wait several months due to

a court calendar, the time should be treated as ‘delay’ for which the

Commonwealth is not accountable.” Commonwealth v. Mills, 162 A.3d 323,

325 (Pa. 2017) (citations omitted).

Here, the trial court determined that the contested days of November

5, 2020, through December 7, 2020, were excludable because the

Commonwealth had acted with due diligence. The court determined that when

the Commonwealth learned of Crosby’s incarcerated status, it immediately

moved to have his case listed for an arraignment and a preliminary hearing.

See Rule 1925(a) Opinion (“1925(a) Op.”), filed 11/30/21, at 5. Thus, the

trial court concluded that “the Commonwealth had done precisely what it

should have done. It immediately advised the [c]ourt and requested the

hearings to be scheduled.” Id. at 6.

Regarding the time between March 8 and March 26, the trial court

determined that the time was excludable as well. It determined that the

Commonwealth set trial for March 8, “the next scheduled jury trial term.” Id.

at 2. It noted that the Commonwealth listed the case for trial despite the

backlog of cases with the court, “in the hope that it could proceed should the

scheduled trials not.” Id. at 6. When it was not possible to have the trial in

March because of an already listed case, “the case was moved to the next trial

term in April.” Id. The court determined that the efforts of the Commonwealth

amounted to due diligence and that it did all that it could following November

5 to bring Crosby to trial. See id. The court also noted that Crosby failed to

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argue that the Commonwealth did not exercise due diligence during these

periods and instead limited his argument to the period between the complaint

and November 5. See id.

After reviewing the briefs, the trial court record, the relevant case law,

and the trial court’s well-reasoned opinion, we affirm on the basis of the trial

court opinion. See id. at 4-8. The court’s determination of the

Commonwealth’s due diligence is supported by the record and the

Commonwealth demonstrated its due diligence before the court’s

determination of any excludable time. See Harth, 252 A.3d at 617.

Crosby’s remaining issue challenges the court’s denial of his motion to

dismiss for violation of his constitutional right to a speedy trial. He maintains

the delay in bringing his case to trial “was caused by the Commonwealth’s

failure to expend any effort whatsoever in ascertaining Mr. Crosby’s

whereabouts.” Crosby’s Br. at 25. He maintains that but for the information

that was eventually given to Zitsch on November 5, “the Commonwealth’s

inability to locate Mr. Crosby’s whereabouts could have been indefinite.” Id.

We review a court’s determination of a speedy trial violation for an abuse

of discretion. See Commonwealth v. Miskovitch, 64 A.3d 672, 677

(Pa.Super. 2013). “[O]ur scope of review is limited to the trial court’s findings

and the evidence on the record, viewed in the light most favorable to the

prevailing party.” Id. (citation and quotation omitted).

State and federal constitutions provide defendants a right to a speedy

trial. See Commonwealth v. DeBlase, 665 A.2d 427, 432 (Pa. 1995). In

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Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court

provided four factors to consider when faced with the question of whether a

defendant’s speedy trial rights had been violated. These factors are: “[l]ength

of delay, the reason for the delay, the defendant’s assertion of his right, and

prejudice to the defendant.” Commonwealth v. Jones, 299 A.2d 288, 291

(Pa. 1973) (quoting Barker, 407 U.S at 530).

Here, in its analysis of the Barker factors, the trial court determined

that Crosby’s right to a speedy trial had not been violated. The court found

that the length of delay in bringing Crosby’s case to trial was 22 months. See

1925(a) Op. at 9. It stated that the delay was due to Zitsch’s failure to locate

him after filing the criminal complaint. See id. at 10. Looking to the next

factor, the court concluded that Crosby had not asserted his constitutional

right to a speedy trial until after the trial court denied his Rule 600 motion.

See id. at 10-11. Regarding prejudice, the court found that Crosby had not

suffered any. It also stated that Crosby’s claims of prejudice were speculative.

See id. at 12-13. The court, therefore, concluded that “considering the

relatively short delay compared to the one found insufficient in Barker and

the absence of any actual prejudice,” Crosby’s claim was meritless. Id. at 13.

After reviewing the briefs, the trial court record, the relevant case law,

and the trial court's well-reasoned opinion, we affirm on the basis of the trial

court opinion. See id. at 9-13. The court conducted a thorough analysis of the

Barker factors and its conclusions are supported by the record.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/09/2022

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