NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
v. :
:
:
BRYANT MORENO :
:
Appellant : No. 2914 EDA 2024
Appeal from the Judgment of Sentence Entered May 24, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007652-2022
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and SULLIVAN, J. MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 19, 2026 Bryant Moreno (“Moreno”) appeals from the judgment of sentence following his conviction for stalking.1 Moreno asserts the trial court abused its discretion by denying his motion to dismiss pursuant to Pa.R.Crim.P. 1013 (“Rule 1013”), the rule governing speedy trials in Philadelphia Municipal Court. Because Moreno’s motion in limine and subsequent litigation therefrom caused the delay in his trial, we affirm the trial court’s denial of his Rule 1013 motion and, as a result, his judgment of sentence.
On February 4, 2022, Moreno’s estranged wife, E.M., obtained a final protection from abuse order (“PFA”) against him. Four days later, E.M., who was pregnant at the time, and her new boyfriend, F.K., were driving on the streets of Philadelphia. Moreno, who was dressed in black and wearing a black
____________________________________________
1 See 18 Pa.C.S.A. § 2709.1(a)(1).
ski mask, chased them in his car and attempted to pull next to them to talk to E.M. See Commonwealth v. Moreno, 313 A.3d 199 (Pa. Super. 2024) (unpublished memorandum at *1); N.T., 3/19/24, at 54-58. Police arrested Moreno the next day and charged him with stalking and indirect criminal contempt (“ICC”) for violating the PFA.2 Ten days after the first incident, Moreno smashed the back windshield of F.K.’s car with a rock; although Moreno again wore a mask, E.M. saw the incident and recognized Moreno from his tattoos, clothing, and distinctive gait. See Moreno, supra; N.T. 3/19/24, at 56-64. The next day, Moreno drove passed E.M., who was outside, and told her she belonged in New York or he would do something worse. Days later, Moreno put a note on E.M.’s car and texted F.K. to ensure she saw it. See Moreno supra, at *1-2. Police arrested him again and filed additional charges that were later consolidated with the charges arising from the February 8, 2022 incident.
A Philadelphia Common Pleas Court judge sitting as a Municipal Court judge3 found Moreno guilty of all ICC and stalking charges. On October 4, 2022, the court imposed concurrent sentences of six months of imprisonment for ICC convictions and two years of reporting probation for stalking
____________________________________________
2 See 23 Pa.C.S.A. § 6114.
3 See 42 Pa.C.S.A. § 1123(a)(2), (b) (providing that Philadelphia Municipal
Court has concurrent jurisdiction with the Court of Common Pleas of Philadelphia County over criminal offenses punishable by a term of not more than five years).
3
convictions. On October 24, 2022, Moreno filed a de novo appeal of the stalking and related misdemeanor offenses at issue in this appeal, as well as charges in the other cases, and he requested a jury trial in the Court of Common Pleas.4 On October 31, 2022, Moreno appealed his ICC convictions to this Court.5 Thus, Moreno’s direct appeal of his ICC convictions proceeded to the Superior Court, while he pursued a trial de novo in the Court of Common Pleas on the remaining charges. The interrelation of the concurrent ICC appeal in this Court and the trial de novo in the Court of Common Pleas became the subject of considerable confusion in the remaining procedural posture leading to Moreno’s instant appeal.
Regarding the matter currently before us, on February 10, 2023, the parties jointly requested a continuance in the cases scheduled for trial de novo, and the court ruled the time excludable. See Moreno’s Brief at 6; Docket Entry for 2/10/23. The case was listed for trial on April 14, 2023. On April 12, 2023, two days before the scheduled trial, Moreno filed a motion in
____________________________________________
4 See 42 Pa.C.S.A. § 1123(a)(2) (providing a defendant has the right of appeal for trial de novo following a Municipal Court conviction).
5 Because the Protection from Abuse Act contains a specific provision vesting
jurisdiction over ICC proceedings, Moreno had the right to a direct appeal to this Court of his contempt convictions. See Commonwealth v. Burton, 624 A.2d 138, 142 (Pa. Super. 1993) (citing 23 Pa.C.S.A. § 6113(a)). See also N.T., 4/14/23, at 13-14 (prosecutor acknowledging that a Court of Common Pleas judge deciding a Municipal Court case sits as a Court of Common Pleas judge for the purposes of adjudicating contempt charges).
4
limine to prohibit “the admission of any evidence [at his trial for stalking and related offenses] that he committed an offense [the ICC offenses] for which there is currently an active appeal in the Superior Court[.]” Motion in Limine, 4/12/23, at 1. Moreno’s motion asserted, inter alia:
(1) “the admission of any evidence concerning the alleged criminal activity for which [Moreno] has not been convicted by final disposition [i.e., the ICC convictions] violates Pennsylvania law and Pennsylvania constitutional rights” (id. at ¶ 4);
(2) the introduction of evidence of Moreno’s ICC convictions “would violate state law,” and “is unseemly, violates the presumption of innocence, and is fundamentally unfair in violation of Pennsylvania Due Process Rights” (id. at ¶¶ 5-6);
(3) other crimes evidence was inadmissible on collateral estoppel principles “guaranteed by the Double Jeopardy Clause of the Pennsylvania Constitution,” and “the Commonwealth cannot relitigate that issue now” because the issue is currently on appeal (id. at ¶¶ 7-8); and
(4) given “its current appeal status,” the other crimes evidence’s probative value did not outweigh its danger of unfair prejudice (id.
at ¶ 9).
On April 14, 2023, the scheduled trial date, the court entertained Moreno’s motion in limine filed two days earlier. The Commonwealth asserted the stalking and related misdemeanor cases were interrelated with the ICC cases, and further claimed that pursuant to a Campana-based compulsory joinder issue,6 a problem could arise if Moreno’s trial de novo were held during the pendency of his Superior Court appeal of the ICC convictions because the
____________________________________________
6 See Commonwealth v. Campana, 314 A.2d 854 (Pa. 1974).
5
charges for trial were connected to ICC offenses;7 it also asserted that if on direct appeal this Court found the evidence insufficient for ICC, there would be a new trial in the Court of Common Pleas on the ICC charges. See N.T., 4/14/23 (Motion in Limine), at 6-8, 10-11. Moreno’s counsel requested that the court mark an ICC case that appeared on the docket “listed in error,” but allow an immediate trial de novo on the remaining charges. See id. at 11. The court, which then proceeded to adjudicate a violation of probation hearing, thereafter recused itself for another court to hear Moreno’s motion in limine, and continued the case until August 2023 for status of appeal, and ruled the time excludable. At subsequent listings in August 2023, and December 2023, the court appointed to hear the motion in limine then continued the case pending this Court’s decision in the ICC appeal.
On January 23, 2024, this Court affirmed the judgments of sentence imposed on Moreno’s ICC convictions. See Moreno, 313 A.3d 199. On March 14, 2024, Moreno filed a motion to dismiss the stalking and related charges pursuant to Pa.R.Crim.P. 1013(G).
The trial court held a hearing on the motion to dismiss on March 18, 2024. Moreno argued Campana did not provide a colorable basis to continue
____________________________________________
7 Although it did not elaborate, the prosecutor apparently alluded to a possible
defense argument that if cases with the same facts and witness are not consolidated and tried together, any second trial for the unconsolidated charges is precluded on statutory grounds. See Campana, 314 A.2d at 856 (citing 18 Pa.C.S.A. § 110).
6
the trial de novo and the Commonwealth was not duly diligent during the pendency of the motion in limine. See N.T., 3/18/24, at 7. The Commonwealth asserted: (1) all the transcripts relating to the ICC convictions, including the interrelated stalking and related misdemeanor convictions, went to this Court with the ICC appeal, (2) Moreno sought to exclude any evidence relating to the PFA and the ICC cases at the trial de novo on due process grounds, dramatically affecting the Commonwealth’s ability to prove the requisite mens rea in the stalking and related misdemeanor cases, and (3) Moreno attempted to use the jurisdictional “quagmire” of the concurrent ICC appeal and trial de novo to get a favorable disposition on the charges for trial by simultaneously arguing that the Commonwealth could not present evidence about the ICC because those convictions were not final and that the Commonwealth did not timely proceed on the trial de novo on remaining charges in those cases. See id. at 9-16, 29.8 At the hearing, Moreno’s counsel conceded that all of the municipal court dockets were sent to the Superior Court for Moreno’s ICC appeal and that he did not seek severance of the charges on appeal from the cases for which he alleged he had the right to immediate trial de novo. See id. at 22-23. The court then asked about the delay from January 26, 2024, the first listing after
____________________________________________
8 The Commonwealth continued to insist, incorrectly, that if this Court reversed Moreno’s ICC convictions, they could be retried in the Court of Common Pleas. See id. at 19.
7
this court’s opinion affirming the ICC convictions, until March 18, 2024. The Commonwealth represented without objection that on January 26, 2024, it requested the earliest possible day for trial. See id. at 26-28. Under questioning from the court, Moreno’s counsel asserted the PFA was irrelevant to the stalking and related charges at issue. See id. at 34-35. The court responded that neither relevancy nor undue prejudice were averred in Moreno’s motion in limine.9 The court also pointed out that Moreno’s motion asserted evidence relating to the ICC convictions was inadmissible due to the pending appeal the convictions were not final. See id. at 35-36.
The trial court subsequently denied Moreno’s Rule 1013 motion. The court explained it was denying the motion in part because Moreno had repeatedly indicated in his motion in limine that the evidence which established the ICC convictions could not be considered on collateral estoppel grounds until this Court adjudicated his appeal of those ICC convictions, it noted:
All I have to decide is whether or not I believe the Commonwealth was duly diligent and/or whether or not the [d]efense contention and its motion that it was the final adjudication. And I’m sorry, [defense counsel], it’s not like once in your motion. It’s like in three separate paragraphs you talk essentially only about the fact – you talk about the fact that the cases are currently on appeal.
You talk about the fact that it’s not a final adjudication. You talk about collateral estoppel.
____________________________________________
9 In fact, the motion did assert the prejudice from the evidence exceeded its probative value given its current appeal status. See Motion, 4/12/23, at ¶ 9.
8
At no point do you give the court any idea that there might be another basis for your motion in limine other than, Judge, let’s wait to see what happens with the Superior Court. And while it may not have been the intention of the [d]efense at the time to toll the time, particularly since you were at least aware of the fact that they were running up against their run date and you made the objection as it relates to the speedy trial, I cannot find the Commonwealth was not duly diligen[t].
Id. at 38-39 (italics added).
On March 20, 2024, a jury found Moreno guilty of one count of stalking and acquitted him of three other counts of stalking and related offenses. At sentencing in May 2024, the trial court imposed a sentence of one to two years of incarceration.10 Moreno filed a post-sentence motion in June 2024, which was denied by operation of law in October 2024. Moreno filed a timely notice of appeal. He and the trial court complied with Pa.R.A.P. 1925.
On appeal, Moreno presents the following issue for our review:
Did not the [trial] court err and abuse its discretion in denying [Moreno’s] motion to dismiss pursuant to Rule 1013 as the Commonwealth’s frivolous delay of [Moreno’s] de novo trials for the outcome of the Superior Court appeals on [Moreno’s]
contempt petitions constitutes a lack of due diligence?
Moreno’s Brief at 2 (capitalization standardized).
The standard and scope of review for evaluating Pa.R.Crim.P. 1013 claims is the same as that applied to claims pursuant to Pa.R.Crim.P. 600:
____________________________________________
10 Moreno had a prior record score of “5.”
9
We review speedy trial rulings for an abuse of discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will . . . discretion is abused. We view the facts in the light most favorable to the prevailing party, and our scope of review is limited to the hearing record.
Commonwealth v. Marnoch, 316 A.3d 1041, 1043-44 (Pa. Super. 2024) (citations omitted) (review of a Rule 1013(G) motion).
Pennsylvania Rule of Criminal Procedure 1013(G) provides, “A trial de novo in the Court of Common Pleas shall commence within a period of 120 days after the notice of appeal from the Municipal Court is filed. In all other respects, the provisions of Rule 600 shall apply to such trials in the Court of Common Pleas.” In relevant part, Rule 600 provides:
(C) Computation of Time
(1) [P]eriods 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.
Any other periods of delay shall be excluded from the computation.
Pa.R.Crim.P. 600.
This Court has recently summarized the law relevant to Rule 600 motions as follows:
Periods of delay caused by the Commonwealth when the Commonwealth has failed to exercise due diligence are included in the computation of time to commence trial; any other periods of delay, meaning any periods of delay the Commonwealth did not cause or not resulting from a lack of due diligence, are “excludable time” and “shall be excluded from the computation.” See Lear, 325 A.3d at 560, citing Pa.R.Crim.P. 600(C)(1). Excludable time
10
is added to the mechanical run date to produce an “adjusted run date,” “which is the deadline for the Commonwealth to bring the defendant to trial under Rule 600.” See id.
Rule 600 serves the purpose of protecting both a defendant’s speedy trial rights and society’s right to the effective prosecution of criminal cases. See Commonwealth v.
Bradford, [] 46 A.3d 693 ([Pa.] 2012). A Rule 600 analysis requires a court to consider whether the Commonwealth exercised due diligence and whether the circumstances causing the delay were beyond the Commonwealth’s control. See id. If the Commonwealth has not committed misconduct to evade the accused’s speedy trial rights, “Rule 600 must be construed in a manner consistent with society’s right to punish and deter crime,”
because Rule 600 “was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.” Commonwealth v. Carl, 276 A.3d 743, 748 (Pa. Super. 2022)). Due diligence does not demand perfection but does require the Commonwealth to put forward a reasonable effort. See Bradford, 46 A.3d at 697.
Excludable time includes, but is not limited to, delays caused by: 1) the suspension of Rule 600 during the COVID-19 pandemic, without regard to the Commonwealth’s diligence, see Commonwealth v. Malone, 294 A.3d 1247, 1251 (Pa. Super.
2023); 2) defense unavailability or continuance request; 3) the adjudication of a defendant’s pretrial motion; 4) court congestion, judicial delay, or court transfer; and 5) the failure to bring a defendant to court from state custody.
Commonwealth v. Robinson, 339 A.3d 1030, 1035–36 (Pa. Super. 2025) (footnote and some citations omitted).
Additionally, with respect to whether time is attributable to the Commonwealth and non-excludable, this Court has elaborated:
Our Supreme Court recently explained that the first sentence of Rule 600(C)(1) provides “the general rule” and establishes “two requirements that must be met for delay to count toward the 365-
day deadline: (1) [the Commonwealth caused] the delay . . . and (2) the Commonwealth . . . failed to exercise due diligence.” Lear, 325 A.3d at 560 (citation and internal quotation marks omitted).
11
The Lear Court clarified that “the causation analysis precedes the due diligence inquiry, and it is only when the Commonwealth both caused the delay and lacked due diligence that the delay is properly included in the Rule 600 calculation.” Id. at 560 n.7.
Commonwealth v. Walker, 331 A.3d 43, 46 (Pa. Super. 2025) (emphasis in original). It is the Commonwealth’s burden to demonstrate due diligence by a preponderance of the evidence to avail itself of an exclusion under Rule 600. See Commonwealth v. Womack, 315 A.3d 1229, 1239 (Pa. 2024).
Moreno raises two related arguments. First, he argues the Commonwealth raised frivolous arguments, based on Campana, which caused the delay in the adjudication of his motion in limine and trial de novo. See Moreno’s Brief at 14-19. Second, he argues that neither the appeal of his ICC convictions in this Court, nor the filing of his motion in limine “tolled” Rule 1013 or caused the delay in the proceeding to the trial de novo on the stalking and related charges when he was prepared to litigate the motion in limine and proceed to trial. See Moreno’s Brief at 19-24.
At the outset, we agree with Moreno that the Commonwealth’s assertion of Campana-based concerns was baseless. Moreno’s appeal to this Court addressed the sufficiency of the evidence supporting his contempt convictions. Contrary to the Commonwealth’s argument, had this court reversed the convictions on sufficiency grounds there would not have been a retrial, but a discharge of the ICC convictions. See Commonwealth v. Lassends, 354
12
A.3d 81, 87 (Pa. Super. 2026).11 Additionally, as Moreno correctly notes, there was no possibility that he could subsequently raise a Campana claim asserting the Commonwealth violated his rights by failing to seek compulsory joinder of the ICC and stalking and related misdemeanor charges. See 18 Pa.C.S.A. §§ 107(c) (providing the compulsory joinder rule is precluded in contempt cases), 110.
However, our agreement with Moreno that there was no merit to a Campana-based delay in adjudicating his motion in limine does not end the inquiry. In its denial of Moreno’s Rule 1013 motion to dismiss, the trial court did not address the merits of the Commonwealth’s Campana claims; rather, it focused on the effect of Moreno’s motion in limine, filed two days prior to the scheduled trial date, which Moreno later asserted did not toll Rule 1013 or cause the delay of the trial de novo. See Moreno’s Brief at 19-24.
As the trial court accurately noted, Moreno’s motion in limine repeatedly argued Moreno’s ICC convictions were not final: it invoked collateral estoppel as a basis for precluding evidence of the ICC convictions at the de novo trial for stalking and related offenses, and it further asserted the admission of evidence depended on this Court’s resolution of Moreno’s challenges to his ICC convictions. Accordingly, the trial court found the motion in limine was the
____________________________________________
11 Clearly, a denial of the sufficiency challenge would leave the ICC convictions unaffected.
13
cause of delay. Thus, the Commonwealth was not the cause of the delay, and the Rule 1013 time was tolled. See N.T., 3/18/24, at 38.
We find no error in the trial court’s determination although we affirm on different grounds than those cited in the trial court opinion.12 The relevant trial evidence for both the ICC and summary stalking and related misdemeanor charges was clearly intertwined, e.g., the evidence probative of Moreno’s intent to commit stalking was the same evidence probative of his violations of the final PFA order, which led to the ICC charges.13 Moreno’s motion in limine specifically sought to preclude the admission of any evidence of “the alleged criminal activity for which [Moreno] has not been convicted by final disposition [as it] violates Pennsylvania law and Pennsylvania constitutional rights,” see Motion in Limine, 4/12/23, at ¶ 4, it “would violate state law”, see id. at ¶ 5, and would be “unseemly [because it would]
____________________________________________
12 Where the result is correct, we may affirm a trial court’s decision on any
proper ground even if not cited by that court. See Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa. Super. 2022).
13 A person commits stalking where, inter alia, he either: (1) engages in a course of conduct or repeatedly commits acts toward another person, under circumstances which demonstrate an intent to place the person in reasonable fear of bodily injury or cause substantial emotional distress to such person, or (2) engages in a course of conduct or repeatedly communicates to another person under circumstances which demonstrate an intent to place the person in reasonable fear of bodily injury or to cause substantial emotional distress to that person. See 18 Pa.C.S.A. § 2709.1. To establish indirect criminal contempt, the Commonwealth must prove the PFA gave clear notice of the conduct prohibited, the accused had notice of the PFA, the act was volitional, and the contemnor acted with wrongful intent. See 23 Pa.C.S.A. § 6114(a); Commonwealth v. Boyer, 282 A.3d 1161, 1172 (Pa. Super. 2022).
14
“violate[] the presumption of innocence, and is fundamentally unfair in violation of Pennsylvania Due Process Rights.” See id. at 6. Critically, Moreno also asserted the other crimes evidence would be inadmissible under “collateral estoppel” principles guaranteed by the Double Jeopardy Clause and the Commonwealth could not “relitigate” the issue of his guilt of ICC because of the pending appeal. Id. at ¶ 7.
Plainly, the import of the motion in limine was to persuade the trial court it had no power to admit evidence pertaining to the ICC convictions even though the evidence Moreno sought to preclude on constitutional grounds was the same evidence used to prove the stalking and related misdemeanor charges being tried. As framed in the motion in limine, Moreno clearly argued the admissibility of any evidence related to ICC convictions was contingent upon a final resolution of the appeal of the ICC convictions. In other words, Moreno’s motion in limine asserted that the admissibility of such evidence had to await this Court’s resolution of his sufficiency claims regarding the ICC convictions.
As this Court has previously held, the causation analysis precedes the due diligence analysis when statutory speedy trial is at issue. See Walker, 331 A.3d at 46 (citing Lear, 325 A.3d at 560 n.7). Thus, the initial question for our determination is whether the Commonwealth caused the trial delay before we review its due diligence. Although the trial court framed the issue as a question of tolling or due diligence, its reasoning shows it actually
15
conducted the causation analysis and found Moreno caused the trial delay by filing his in limine motion seeking to preclude the evidence relevant to the stalking and other charges until the final disposition of his appeal of his ICC convictions. We believe the distinctions between causation, tolling, or due diligence, are largely academic here. The evidence needed to establish both ICC and stalking and related misdemeanor offenses was the same, intent was at issue, and Moreno sought to bar the admission of that evidence pending this Court’s determination of his appeal. Accordingly, Moreno’s motion in limine caused the trial delay. Thus, although the court phrased this as a tolling or due diligence issue, the record demonstrates the trial court actually addressed causation of delay, and determined that the Commonwealth was not the cause for the delay in Moreno’s trial de novo on other charges. See Lear, 325 A.3d at 560 n.7; Walker, 331 A.3d at 46. Therefore, regardless of the nomenclature used by the trial court, its determination that the delay was caused by Moreno’s motion in limine and time was excludable is neither error nor an abuse of discretion.
Based on the foregoing, we agree with the trial court’s finding that the Commonwealth did not violate Rule 1013. The 99 days from Moreno’s notice of appeal and formal arraignment through the first pretrial conference that resulted in a joint continuance request (October 24, 2022 until February 10, 2023) were not excludable, but as the record reflects, 63 days between the joint continuance request and the filing of Moreno’s in limine motion are
16
excludable (February 10, 2023 and April 14, 2023),14 and the 339 days between the filing of the in limine motion and its resolution (April 14, 2023 until March 18, 2024), are excludable. Factoring in excludable time, Moreno’s trial occurred within 99 days of the notice of appeal from the Municipal Court and was timely held. See Rule 1013(G). For these reasons, we affirm the denial of Moreno’s Rule 1013 claim and his judgment of sentence.
Judgment of sentence affirmed.
Date: 8/19/2026
____________________________________________
14 Moreno does not contest that this time is excludable. See Moreno’s Brief at 6.