Com. v. Petit-Homme, S.

• Court: Superior Court of Pennsylvania
• Decided: December 23, 2024
• Docket: 1862 EDA 2023
• Status: Unpublished

Opinion

J-A17041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SIVENSON PETIT-HOMME : : Appellant : No. 1862 EDA 2023

Appeal from the Judgment of Sentence Entered June 16, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007261-2021

BEFORE: BOWES, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 23, 2024

Sivenson Petit-Homme (“Petit-Homme”) appeals from the judgment of

sentence imposed after he entered a conditional guilty plea to numerous

violations of the Uniform Firearms Act (“the gun charges”). 1 Because Petit-

Homme has waived his appellate arguments by raising a new theory of relief

on appeal, we affirm.

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1 See 18 Pa.C.S.A. §§ 6105, 6106, 6108, 6110.2. We acknowledge a guilty plea typically waives objections to non-jurisdictional defects. See Commonwealth v. Brown, 240 A.3d 970, 972 (Pa. Super. 2020). However, the parties and the trial court clearly and expressly agreed to allow Petit- Homme to appeal the denial of a Pa.R.Crim.P. 600 motion as a term of his plea in this case. See Written Plea Colloquy, 4/18/23, at 3; N.T. Guilty Plea Hr’g, 4/19/23, at 13. This Court must honor the terms of a plea bargain. See Commonwealth v. Gillins, 302 A.3d 154, 161 (Pa. Super. 2023) (“Specific enforcement of valid plea bargains is a matter of fundamental fairness”) (citation omitted); see also Commonwealth v. Speed, --- A.3d ---, ---, 2024 WL 4139491 at *2 (Pa. Super. filed Sept. 11, 2024). J-A17041-24

We summarize the factual and procedural history of this appeal as

follows. In June 2021, a police officer on routine patrol observed an

unattended small tan bag, approximately ten-inches-by-ten-inches, behind a

convenience store ATM. See N.T. Prelim. Hr’g, 8/13/21, at 8-9, 12. Later,

the officer saw Petit-Homme with the bag strapped around his shoulder; Petit-

Homme went inside the store with the bag, and then left the store without the

bag. See id. The officer went inside the store, and a clerk informed him

Petit-Homme had given her the bag. See id. at 11. The clerk turned the bag

over to the officers. The officers found a loaded pistol, which had its serial

number scratched off (“the pistol”), inside the bag. See id. at 8. Petit-

Homme had a prior conviction that disqualified him from possessing a firearm.

See id. at 13.

The officer arrested Petit-Homme and, in June 2021, filed a criminal

complaint for the gun charges. The Commonwealth requested DNA testing of

the pistol, but proceeded to an August 2021 preliminary hearing before

receiving the test results. The officer testified to the facts summarized above,

and the Philadelphia municipal court held the gun charges over for trial in the

court of common pleas. At that time, statewide and local emergency COVID-

19 orders were in effect and suspended Rule 600 in Philadelphia until October

2021.2

2 See Commonwealth v. Malone, 294 A.3d 1247, 1251 (Pa. Super. 2023)

(concluding Rule 600 was unambiguously suspended in Philadelphia County (Footnote Continued Next Page)

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In December 2021, the Commonwealth received the DNA test results,

which linked Petit-Homme to the pistol, and, in January 2022, the

Commonwealth emailed a copy of the DNA test results to the defense. See

N.T. Rule 600 Hr’g, 4/14/23, at 40, 47; see also Br. in Opp’n to Rule 600

Mot., 4/12/23, Ex. G. Following defense continuances, the court, in February

2022, scheduled trial for August 2022 (“the February 2022 scheduling

order”).3

On August 9, 2022, Petit-Homme filed a motion to quash/petition for

writ of habeas corpus (“motion to quash”). Petit-Homme asserted the

testimony at the preliminary hearing did not establish a prima facie case he

knowingly possessed the pistol.

On August 10, 2022, the Honorable Stephanie M. Sawyer (“Judge

Sawyer”) heard arguments on the motion to quash. The Commonwealth did

not present evidence based on the DNA test results, or discuss the possible

existence of the DNA test results, and relied solely on the preliminary hearing

testimony.4 Judge Sawyer concluded the Commonwealth failed to establish a

from March 2020 until October 1, 2022, and holding Rule 600 computations did not begin until Rule 600 was no longer unambiguously suspended).

3 The February 2022 scheduling order stated most pretrial motions should be

filed by July 15, 2022.

4 Petit-Homme also did not refer to DNA test results, despite the uncontested

representation that the Commonwealth disclosed the DNA test results to the defense in January 2022.

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prima facie case and granted Petit-Homme’s motion to quash the gun charges

that same day.

The Commonwealth timely filed a motion seeking reconsideration of

Judge Sawyer’s order or a reopening of the record to include the DNA test

results. See Mot. for Recons., 8/17/22, at 4. On September 2, 2022, Judge

Sawyer held a hearing on the Commonwealth’s motion. Judge Sawyer limited

her consideration to the Commonwealth’s request to reopen the record and

noted that even if she denied the request, the Commonwealth could refile the

charges against Petit-Homme. See N.T. Recons. H’rg, 9/2/22, at 15. Petit-

Homme objected to reopening the record because the Commonwealth failed

to exercise due diligence by not having the DNA test results to respond to his

motion to quash. See id. at 17. Petit-Homme further asked Judge Sawyer

to find all time between her order quashing the charges and all future

proceedings would run against the Commonwealth for their lack of diligence.

See id. at 18. The Commonwealth responded it had misfiled the DNA test

results in a case file for another open case against Petit-Homme (“the other

case”). See id. at 21-22. The Commonwealth stated it found the DNA test

results shortly after Judge Sawyer quashed the gun charges and the other

case went to a scheduling conference. See id. at 22-23.

Judge Sawyer ultimately allowed for the reopening of the record in the

interests of judicial economy but asserted: “I am going to specifically state

that the timeframe from the prelim[inary hearing] to today is time that should

be deemed or calculated against the Commonwealth.” Id. at 24-30, 29-30.

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Judge Sawyer left “open the actual date for [Rule] 600 calculations.” Id. at

29. Judge Sawyer entered a September 2, 2022 order vacating the quashal

order, memorializing her findings, and reinstating the gun charges.

The court then rescheduled trial for April 2023. On March 6, 2023, Petit-

Homme filed a Rule 600 motion to dismiss the gun charges, asserting, in

relevant part, the Commonwealth failed to exercise due diligence since the

preliminary hearing in August 2021. See Rule 600 Mot., 3/6/23, at 4.

Specifically, Petit-Homme argued Judge Sawyer “ruled on September 2, 2022,

‘that the Commonwealth was not diligent in failing to have preliminary hearing

including the DNA evidence.’ Because the Commonwealth was not diligent,

the Commonwealth may not avail itself of appeals to judicial delay ‘to exempt

the Commonwealth from its obligations under the Rule.’” See id. at 4-5

(citation, emphasis, and some capitalization omitted). Petit-Homme

concluded that, at the time of his Rule 600 motion, the gun charges were 249

days over the Rule 600(A) speedy trial limit. See id. at 5.

The Commonwealth responded to Petit-Homme’s Rule 600 motion and

asserted the delays from Petit-Homme’s arrest to the February 2022

scheduling order were excluded from Rule 600 by the COVID-19 emergency

orders and Petit-Homme’s requests for continuance. See Br. in Opp’n to Rule

600 Mot., 4/12/23, at 16. The Commonwealth countered its mishandling of

the DNA test results only caused twenty-three days of delay. See id. at 17.

The Honorable Giovanni Campbell (“Judge Campbell”) heard arguments

on the Rule 600 motion on April 14, 2023. Petit-Homme asserted his claim,

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based solely on Judge Sawyer’s prior determination, that more than 365 days

attributable to the Commonwealth passed since the preliminary hearing. See

N.T. Rule 600 Hr’g, 4/14/23, at 3-7. In particular, Petit-Homme emphasized

that due diligence required the Commonwealth to have sought a continuance

of the preliminary hearing to obtain the DNA test results. See id. at 7. Petit-

Homme focused his argument on the time from the August 2021 preliminary

hearing to Judge Sawyer’s September 2022 reinstatement of the gun charges.

See id. at 15, 33. Judge Campbell, along with the parties, then calculated

the days attributable to Rule 600 during that period, and at the conclusion of

the hearing, Petit-Homme’s counsel appeared to concede 365 days had not

run against the Commonwealth. See id. at 50. Petit-Homme did not assert

the period after Judge Sawyer reinstated the charges should run against the

Commonwealth. See id.

Judge Campbell denied the Rule 600 motion on April 14, 2023, and, on

April 19, 2023, Petit-Homme entered a conditional guilty plea to all of the gun

charges. The trial court, with a third jurist presiding, accepted the plea, and

on June 16, 2023, sentenced Petit-Homme to thirty-three to ninety-six months

of imprisonment.

Petit-Homme timely filed a post-sentence motion, which the trial court

denied, and he timely appealed. Petit-Homme complied with the trial court’s

order to submit a Pa.R.A.P. 1925(b) statement, and Judge Campbell, in

relevant part, authored a Rule 1925(a) opinion reasoning that (1) Judge

Sawyer’s statements regarding the Commonwealth’s lack of diligence when

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proceeding to a preliminary hearing without the DNA test results failed to

account for the COVID-19 emergency orders or the defense continuances

before the February 2022 scheduling order; (2) there was no evidence that

the Commonwealth failed to exercise diligence when obtaining the DNA test

results; and (3) Petit-Homme caused the delay by filing an untimely motion

to quash that should have been filed as part of an omnibus pretrial motion

within thirty days of his arraignment. See Trial Ct. Op., 11/9/23, at 2-3. In

apparent response to the arguments at the Rule 600 hearing, Judge Campbell

concluded no more than 336 days could have passed after the end of the

COVID-19 emergency orders to the filing of the motion to quash. See id. at

3.

Petit-Homme raises the following issue for our review:

Did not the trial court commit an error of law and abuse its discretion in denying . . . Petit-Homme’s motion to dismiss the bill of information pursuant to violation of Rule 600(A) where the Commonwealth failed to exercise due diligence by not bringing . . . Petit-Homme to trial within 365 days?

Petit-Homme’s Brief at 3 (some capitalization omitted).

The following principles govern our review:

[I]n evaluating Rule 600 issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. 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, as shown by the evidence or the record, discretion is abused.

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Commonwealth v. Herring, 271 A.3d 911, 915 (Pa. Super. 2022), appeal

denied, 288 A.3d 865 (Pa. 2022) (internal citations and brackets omitted).

Our scope of review is limited to the evidence on the record of the Rule 600

evidentiary hearing and the trial court’s findings of fact. See id.

Rule 600 requires that a trial commence within 365 days from the filing

of the written complaint. See Pa.R.Crim.P. 600(A)(2)(a). To compute the

running of the 365 days, Rule 600 instructs that “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. Any other periods of delay shall be

excluded from the computation.” See Pa.R.Crim.P. 600(C)(1).

To determine whether a Rule 600 violation has occurred, a court first

calculates the mechanical run date by adding 365 days from the date the

complaint was filed. See Commonwealth v. Rosario, 314 A.3d 888, 890

n.6 (Pa. Super. 2024). The court then adjusts the mechanical run date for

any excludable time and excusable delay. See id. To establish excusable

delay, the Commonwealth bears the burden of demonstrating that it exercised

due diligence in bringing a defendant to trial within the Rule 600 limit. See

Commonwealth v. McCarthy, 180 A.3d 368, 375 (Pa. Super. 2018). “Due

diligence is a fact-specific concept that must be determined on a case-by-case

basis. Due diligence does not require perfect vigilance and punctilious care,

but rather a showing by the Commonwealth that a reasonable effort has been

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put forth.” Commonwealth v. Risoldi, 238 A.3d 434, 449-50 (Pa. Super.

2020).

On appeal, Petit-Homme now concedes 248 days, between the filing of

the complaint and the February 2022 scheduling conference, were excludable

from Rule 600 because of the COVID-19 emergency orders and defense

requests for continuances. See Petit-Homme’s Brief at 9-10. However, he

observes 224 days ran from the February 2022 scheduling order and the

rescheduling of trial in September 2022. See id. Additionally, he notes an

additional 204 days ran from scheduling of a new trial to Judge Campbell’s

denial of his Rule 600 motion. See id. Petit-Homme contends these 428 days

were includable in a Rule 600 calculation pursuant to Commonwealth v.

Harth, 252 A.3d 600 (Pa. 2021), and Commonwealth v. Mills, 162 A.3d

323 (Pa. 2017), because the Commonwealth misplaced the DNA test results,

did not diligently respond to the motion to quash, or establish its trial

readiness by demonstrating its witnesses would have been available for the

August 2022 trial date. See id. at 17-20. He concludes Judge Campbell erred

because he never considered whether the Commonwealth failed to exercise

due diligence and only held Petit-Homme responsible for any delays. See id.

at 21-22.

At the outset, we emphasize Petit-Homme’s arguments in the trial court

raised different claims than presented on appeal. As noted above, Petit-

Homme’s Rule 600 motion relied on Judge Sawyer’s statement when

reinstating the gun charges and focused on the delay between the preliminary

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hearing and the reinstatement of the gun charges. See N.T. Rule 600 Hr’g,

4/14/23, at 3-7, 15, 33. Specifically, Petit-Homme asserted a Rule 600

violation based on the Commonwealth’s lack of due diligence when it elected

to proceed to the preliminary hearing without the DNA test results. See id.

On appeal, however, Petit-Homme focuses on all time after the February

2022 scheduling order because the Commonwealth did not have a copy of the

DNA test results and presented no evidence that it would have been ready for

trial after the February 2022 scheduling order.

The difference between Petit-Homme’s arguments before the trial court

and on appeal is significant. Petit-Homme’s arguments before the trial court

did not afford notice to the Commonwealth to present evidence that all of its

witnesses and evidence would have been ready for the August 2022 trial date.

Similarly, Petit-Homme’s arguments before Judge Campbell did not alert the

court that Petit-Homme intended to argue the lack of due diligence beyond

Judge Sawyer’s findings that the Commonwealth should have waited for the

DNA test results before proceeding to a preliminary hearing. Indeed, Petit-

Homme did not ask Judge Campbell to address any of the time after the

reinstatement of the gun charges, which is the period critical to his argument

in this appeal. See N.T. Rule 600 Hr’g, 4/14/23, at 50. This Court will not

consider novel legal theories not presented to the trial court. See Pa.R.A.P.

302(a). Thus, we are constrained to find Petit-Homme’s appellate argument

waived. See Pa.R.A.P. 302(a); see also Commonwealth v. Jones, 321

A.3d 946, 2024 WL 2105951 at *5 (Pa. Super. May 10, 2024) (unpublished

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memorandum citable pursuant to Pa.R.A.P. 126) (finding novel theories for

relief raised on appeal waived where the defendant only challenged the

excludability of defense continuance before the trial court for the purpose of

Rule 600 calculations), appeal denied, --- A.3d ---, 2024 WL 4022872 (Pa.

Sept. 3, 2024).

Judgment of sentence affirmed.

Date: 12/23/2024

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