Com. v. Piergrossi, D.

• Court: Superior Court of Pennsylvania
• Decided: May 11, 2016
• Docket: 1647 EDA 2015
• Status: Unpublished

Opinion

J-S38034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DAVID PHILLIP PIERGROSSI

Appellant No. 1647 EDA 2015

Appeal from the Judgment of Sentence May 5, 2015 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0005014-2012

BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED May 11, 2016

David Piergrossi files this direct appeal from his judgment of sentence

for robbery, terroristic threats, theft by unlawful taking, receiving stolen

property, possession of an instrument of crime and simple assault.1 We

affirm.

The evidence of record demonstrates that on June 18, 2012, Piergrossi

held up a supervisor in the jewelry department of a Kohl’s Department Store

and forced her at gunpoint to hand over gold chains from a display case.

Shortly after Piergrossi left the department store, he was apprehended

during a traffic stop. Later that day, Limerick Township police filed a

criminal complaint against Piergrossi.

____________________________________________

1 18 Pa.C.S. §§ 3701(a)(1)(iv), 2706(a)(1), 3921(a), 3925(a), 907(a), and 2701(a)(3), respectively. J-S38034-16

On August 21, 2012, Piergrossi was arraigned at Graterford Prison via

videoconference. Multiple continuances followed which delayed Piergrossi’s

case from proceeding to trial until February 2015.

On February 3, 2015, several days before trial, Piergrossi filed a

motion to dismiss all charges against him under Pennsylvania’s speedy trial

rule, Pa.R.Crim.P. 600. His motion claimed that his arraignment was

defective, which in turn made the Commonwealth responsible for a series of

pretrial continuances, thus violating his right to a speedy trial under Rule

600. On February 9, 2015, the court denied the Rule 600 motion, and the

case proceeded to trial.

After a two-day trial, the jury found Piergrossi guilty of the

aforementioned offenses. On May 5, 2015, the court sentenced him to an

aggregate term of 11-25 years’ imprisonment. Piergrossi filed a timely

notice of appeal, and both Piergrossi and the trial court complied with

Pa.R.A.P. 1925.

Piergrossi raises the following issues in this appeal:

1. Was [Piergrossi] ever properly arraigned in this matter in that:

a. The Bill of Information was not signed or filed by the Commonwealth at the time of the arraignment, and

b. [Piergrossi] was allowed to proceed pro se without the court conducting a colloquy to determine if [Piergrossi] could represent himself at the arraignment?

2. Was [Piergrossi]’s right to a speedy trial under Pennsylvania Rule 600 violated when the Commonwealth did not establish

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due diligence because it was partially the Commonwealth’s fault that [Piergrossi] was not properly arraigned?

Brief For Appellant, at 3.

In his first argument, Piergrossi alleges that his arraignment was

improper. We hold that Piergrossi has waived his claims of arraignment

error.

The record reflects that on August 21, 2014, Piergrossi’s arraignment

took place via videoconference between the courtroom and Piergrossi at

Graterford Prison. A public defender in the courtroom attempted to

represent Piergrossi, but Piergrossi indicated his desire to represent himself.

N.T., 8/21/14, at 2. The court allowed Piergrossi to proceed pro se without

colloquying him as to whether he was representing himself knowingly,

intelligently and voluntarily. Id. at 3. The Assistant District Attorney

handed bills of information to the court but advised that she wanted to

amend the bills before filing them. The court read Count 1 of the bills to

Piergrossi and asked how he wished to plead. Id. at 5. Piergrossi refused to

enter a plea, asserting that the court lacked subject matter jurisdiction. Id.

at 6. The court assured Piergrossi that it had jurisdiction and asked several

more times how he wished to plead to Count 1, but Piergrossi again refused

to enter a plea. Id. at 7-10. The court thereupon entered pleas of not

guilty on all counts on Piergrossi’s behalf. The Commonwealth filed bills of

information against Piergrossi the next day.

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Well over two years later, on February 3, 2015, Piergrossi filed a

motion claiming that two errors during his arraignment laid the foundation

for dismissal of his case under Rule 600: (1) the Commonwealth’s failure to

file bills of information prior to his arraignment, and (2) the court’s decision

to allow Piergrossi to represent himself at his arraignment without

conducting a colloquy to ascertain whether he knowingly, intelligently and

voluntarily waived his right to counsel. These defects, said Piergrossi, made

the Commonwealth responsible for 428 days of subsequent continuances,

thus requiring dismissal of his case under Rule 600.

“One must object to errors, improprieties or irregularities at the

earliest possible stage of the criminal ... adjudicatory process to afford the

jurist hearing the case the first occasion to remedy the wrong and possibly

avoid an unnecessary appeal to complain of the matter.” Commonwealth

v. Strunk, 953 A.2d 577, 580 (Pa.Super.2008). “Issues not raised in the

[trial] court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a). “[T]rial judges must be given an opportunity to correct

errors at the time they are made.” Strunk, 953 A.2d at 579.

The Rules of Criminal Procedure provide that the proper time to allege

any arraignment errors is in an omnibus pretrial motion for relief. The Rules

provide: “Unless otherwise required in the interests of justice, all pretrial

requests for relief shall be included in one omnibus motion.” Pa.R.Crim.P

578 (emphasis added). The Rules further state that “the omnibus pretrial

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motion for relief shall be filed and served within 30 days after arraignment,

unless opportunity therefor did not exist, or the defendant or defense

attorney, or the attorney for the Commonwealth, was not aware of the

grounds for the motion, or unless the time for filing has been extended by

the court for cause shown.” Pa.R.Crim.P. 579(a).

Assuming without accepting that there were arraignment errors, Rules

578 and 579 required Piergrossi to object to these mistakes in an omnibus

pre-trial motion within thirty days after his arraignment, or by September

20, 2012. The first time that Piergrossi raised any objections, however, was

in his Rule 600 motion on the eve of trial, almost 2½ years later. The record

demonstrates that Piergrossi was represented by counsel at all times after

his arraignment. Piergrossi fails to explain why counsel did not file a timely

omnibus motion alleging arraignment errors and requesting re-arraignment.

It smacks of gamesmanship for Piergrossi to use arraignment errors to

torpedo the Commonwealth’s case under Rule 600 when he could have

raised these errors years earlier in an omnibus motion, long before the Rule

600 run date. Thus, Piergrossi has waived these claims of error.

Even if Piergrossi preserved these claims for appeal, and again

assuming without accepting that error occurred, neither error caused

Piergrossi prejudice. The purpose of arraignment is to fix the identity of the

accused, inform him of the nature of the charges against him, and provide

him with the opportunity to plea thereto. Pa.R.Crim.P. 571;

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Commonwealth v. Blackwell, 458 A.2d 541, 543 (Pa.Super.1983).

Failure to follow the rules of arraignment to the letter is harmless error if the

purposes of arraignment are fulfilled and the defendant suffers no prejudice.

Blackwell, supra.

Piergrossi complains that the Commonwealth failed to file the bills of

information until after his arraignment, thus violating the requirement in the

Rules for the Commonwealth to file bills of information in advance of

arraignment. See Pa.R.Crim.P. 571(A) (“arraignment shall take place no

later than 10 days after the information has been filed”). The trial court

correctly reasoned that the tardy filing of the bills caused no harm to

Piergrossi:

The Bills of Information were filed the next day [after Piergrossi’s arraignment] and do not reflect the amendment the Assistant District Attorney indicated she would make. Therefore, but for [Piergrossi]’s obstreperous behavior, the Court would have read the charges from an identical copy of the Bills of Information. [Piergrossi]’s behavior resulted in pleas of not guilty being entered on his behalf; therefore, [Piergrossi] cannot show that he suffered any prejudice as a result of the Bills being filed one day after arraignment.

Pa.R.A.P. 1925 Opinion, at 9-10.

Piergrossi also argues that the court should not have permitted him to

proceed pro se at his arraignment without determining whether he

knowingly, intelligently and voluntarily waived his right to counsel. The

court properly reasoned that Piergrossi suffered no harm from proceeding

pro se during his arraignment:

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While arraignment is a crucial stage of the proceedings and a defendant is entitled to counsel at that stage, there is no error or prejudice where a defendant appears pro se and enters a plea of not guilty without waiving any rights. See Commonwealth v. Jones, 308 A.2d 598, 602-603 (Pa.1973) (finding arraignment not fatally defective where defendant appeared pro se, signed pauper’s oath, and entered plea of not guilty where counsel was appointed shortly after arraignment and defendant’s ability to present a defense suffered no prejudice).

While it is true that the Court did not colloquy [Piergrossi] before allowing him to proceed pro se, such error is harmless error. [The public defender at the arraignment] began to advise [Piergrossi] of his rights and what would happen at a formal arraignment. Counsel remained in the courtroom and was available to [Piergrossi]. After being allowed to address the Court directly, [Piergrossi]’s behavior resulted in the Court entering pleas of not guilty on his behalf. Both the Court and the public defender’s office believed that [Piergrossi] was properly arraigned and proceeded accordingly. A public defender entered her appearance on September 4, 2012 and filed a timely Request for Pre–Trial Discovery that same day pursuant to Pa.R.Crim.P. 573(A). Additionally, on September 12, 2012, she filed an omnibus pretrial motion, which is required to be filed within 30 days of arraignment. Pa.R.Crim.P. 579. [Piergrossi] was zealously represented by counsel at all times following his arraignment and his rights were protected by the filing of all appropriate motions; therefore, he suffered no prejudice from being permitted to appear pro se at his arraignment.

Pa.R.A.P. 1925 Opinion, at 10-12.

In his second issue on appeal, Piergrossi argues that the trial court

abused its discretion by denying his Rule 600 motion. We disagree.

Rule 600, as amended on July 1, 2013, provides: “Trial in a court case

in which a written complaint is filed against the defendant shall commence

within 365 days from the date on which the complaint is filed.” Pa.R.Crim.P.

600(A)(2)(a). For purposes of Rule 600(A), “periods of delay at any stage of

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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(C)(1).

We often refer to the 365-day period in which trial must commence as

the “mechanical run” date. Commonwealth v. McNear, 852 A.2d 401,

406 (Pa.Super.2004). “The mechanical run date can be modified or extended

by adding to the date any periods of excludable or excusable delay. Once the

mechanical run date is modified, it then becomes an adjusted run date.” Id.

“A defendant is not automatically entitled to dismissal of the charges where

trial starts after the mechanical run date … Rather, dismissal is only proper

where defendant is not brought to trial within the adjusted run date, after

subtracting all excusable and excludable time.” Commonwealth v. Roles,

116 A.3d 122, 125 (Pa.Super.2015).

“Excludable time includes delay caused by the defendant or his lawyer.

Concomitantly, excusable delay occurs where the delay is caused by

‘circumstances beyond the Commonwealth’s control and despite its due

diligence.’” Roles, 116 A.3d at 125. Additionally, “delay occasioned by the

court’s unavailability is usually excusable. However, the Commonwealth

may, under some circumstances (e.g. a prolonged judicial absence), have a

duty to seek other courtrooms to try the case. The extent of this duty

depends on the specifics of each case.” Commonwealth v. Riley, 19 A.3d

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1146, 1149 (Pa.Super.2011). Due diligence is a fact-specific concept to be

determined on a case-by-case basis. It requires the Commonwealth to put

forth a reasonable effort but does not demand perfect vigilance or

punctilious care. Commonwealth v. Claffey, 80 A.3d 780, 786

(Pa.Super.2013). The Commonwealth bears the burden of demonstrating

that it exercised due diligence by a preponderance of the evidence.

Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa.2012).

The standard of review relating to the application of Rule 600 is

“whether the trial court abused its discretion. Our scope of review is limited

to the evidence on the record of the Rule 600 evidentiary hearing and the

findings of the trial court. We must view the facts in the light most favorable

to the prevailing party.” Commonwealth v. Malgieri, 889 A.2d 604, 606

(Pa.Super.2005).

The trial court comprehensively explained the reasons for each

continuance in Piergrossi’s case between his arrest on June 18, 2012 and his

trial on February 9-10, 2015. Pa.R.A.P. 1925 Opinion, at 3-7 (attached).

The court denied Piergrossi’s Rule 600 motion by determining that only 135

days during this time period were neither excusable nor excludable:

A criminal complaint in the instant matter was filed June 18, 2012[;] therefore, for purposes of Rule 600, the mechanical run date was June 18, 2013. Jury selection began on February 9, 2015, 966 days after the filing of the complaint. However, the bulk of this delay was attributable to [Piergrossi’s] medical condition, the unavailability of defense counsel, and a backlog of the Court’s docket … No evidence was presented to indicate that the Commonwealth was unprepared for trial. The Assistant

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District Attorney admitted 39 emails detailing her communications with witnesses, defense counsel and the Court attempting to bring this case to trial. Additionally, there was no prolonged judicial absence triggering a duty on the part of the Commonwealth to seek another courtroom in which to try this case …

For purposes of Rule 600, the only time that is not excludable or excusable appears to be 135 days (98 days from the date of arrest (6/18/12) until the first pretrial conference (9/24/12) and 37 days from the time the case was placed on the trial list (11/13/12) until the first trial listing (12/20/12)). Therefore, 831 days are excludable or excusable based on [Piergrossi’s] medical condition, defense counsel’s schedule and the Court’s unavailability and not on a failure of the Commonwealth to exercise due diligence. Therefore, the adjusted run date is September 27, 2015 (831 days from the mechanical run date of June 18, 2013). Trial commenced on February 9, 2015, well before the adjusted run date.

Pa.R.A.P. 1925 Opinion, at 14-15.2 Having reviewed the record of the Rule

600 evidentiary hearing and the trial court’s findings, we conclude that the

trial court’s analysis is correct, and that it properly exercised its discretion in

denying Piergrossi’s Rule 600 motion. Piergrossi’s second issue on appeal is

devoid of merit.

Judgment of sentence affirmed.

2 The trial court added that there was no Rule 600 violation based on alleged defects in Piergrossi’s arraignment, because these defects were at most harmless errors. Pa.R.A.P. 1925 Opinion, at 12. We agree with the trial court based on our reasoning on pages 3-7, supra.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/11/2016

- 11 - . _.,. Circulated 04/22/2016 08:52 AM :;

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA No. 5014-12

DAVIDPHILLIPPIERGROSSI

OPINION

O'NEILL, J. August ..l_, 2015

Defendant, David Philip Piergrossi, appeals from the judgment of

sentence entered on May 5, 2015. For the reasons set forth below, the

judgement of sentence should be affirmed.

I. Facts

On J1,1ne 18, 2012, at approximately 8:30 am, the Defendant entered the

Kohl's Department Store in Limerick Township, Montgomery County, Donna

'Hoffman, who was at that time the jewelry department supervisor, was

preparing the section for the day. ( N.T., Trial by Jury, 2/ 11/ 15, pp. 5-6).

Hoffman observed the Defendant looking at the locked gold chain display case

. and asked him if he needed help. Id. at 7 .. Hoffman observed that the

Defendant had a rag over his face, which he said was because his allergies·

were·bothering him. Id. at 8. He was wearing dark clothes· and a hat, and

kept the rag up to his face, Id. Hoffman noted that he was wearing a blue

. pullover fleece, which she thought was unusual for the middle of June. Id. at

9. When Hoffman bent down to get a chain from the case to show the·

-lJ,•,, v-. Defendant, he pulled out a gun 1 and said "Give them all to me. I want them

all. Give them all to me." Id. Hoffman screamed as the Defendant came

behind the counter to grab the chains from the open case. Id. at 9-10.

Hoffman feared that the Defendant was going to shoot her and jumped the

counter in an attempt to get away from the Defendant. Id.

After hearing Hoffman's screams, Kohl's loss prevention officer, Ben

Zieser, stepped out the nearest door and saw a male subject walking north

through the parking lot wearing Timberland style boots, medium colored blue

jeans and a blue fleece top, with the collar pulled up to obscure his face. (N.T.,

Trial by Jury, 2/10/ 15, pg.46- 47). The subject was wearing glasses and had

his face covered. Id. at 48. Zieser attempted to get the license plate number of

the vehicle the subject got in to, but the plate was obscured by blue painter's

tape. Id. at 49.

A Kohl's customer, Regina Phillips arrived in the parking lot at

approximately 8:30 am. Id. at 103. As she was about to get out of her car to

enter the store to· pay her bill, she noticed the Defendant walking briskly ·

through the parking lot, while pulling something up over his face. Id. Phillips

thought this was unusual given the weather. Id. He was wearing a blue

sweater, with a collar he was pulling up toward his face, jeans .and he. had a

bag in his hand. Id. at 107. Phillips attempted to get the license plate

number of the Defendant's car, a black Jeep Cherokee, which was backed into

I The gun later proved to be an airsoft BB gun. the spot directly in front of her, but it was obscured by blue painter's tape. Id.

at 104-105.

Meanwhile, Officer Christopher Wienczek, of the Limerick Township

Police Department, was en route to the store, when he observed a black SUV

coming towards him that matched the description of the vehicle in the

dispatch, including that a witness had seen blue painter's tape on the license

plate. Id. 121.-22. The officer slowed down and the vehicle passed him, at

which time he could see that there was blue tape on the rear door latch of the

vehicle. Id. The officer turned around, followed the vehicle and, after

confirming the information given in the dispatch, initiated a traffic stop. Id. at

122.

Later in the day, after obtaining a search warrant, Detective Matthew

Daywalt, of Limerick Township Police Department, and another officer searched.

the vehicle. Id. at 146. A search of the car revealed crumpled up painter's

tape, a dirty white cloth, a dark bandana, a Crown Royal bag containing the

stolen jewelry from Kohl's; a blue fleece pullover, and a weapon. Id. at 149-:-59,

163-64. The weapon is the weapon Defendant is seen using in the surveillance

videos from the robbery.2 Id. at 157. However, upon-further examination; law

enforcement determined- the gun was in fact an Airsoft BB gun. Id.vat 158.

H. Procedural History

A criminal complaint was filed June 18, 2012. Defendant's preliminary

arraignment was June 19, 2012. (N.T., Trial by Jury, 2/ 10/ 15, pg. 170). A 2 . Theentire incident was captured on various surveillance cameras within the store which were admitted into evidence at the Defendant's trial. Preliminary Hearing was held on June 28, 2012, and Defendant's bail was set

at $50,000 unsecured. (N .T., Rule 600 Hearing/Jury Selection, 2/9/ 15, pg. 7). A state detainer was lodged that same date. Id. On August 21, 2012, a formal

arraignment was held via video; a public defender was in the courtroom, but

the Defendant expressed a desire to proceed prose. Id. By Order of August

21, 2012, the Court- indicated that the Defendant was arraigned that date and

a pleas of not guilty were entered on his behalf. On August 22, 2012, the Bills

of Information were filed in the Clerk of Courts. Id. at 8. On September 4,

2012, a Public Defender entered her appearance. Id. On September 12, 2012;

the Public Defender filed a timely Omnibus Pretrial Motion and a Motion for

Discovery. Id.

The first pretrial conference was scheduled for September 19, 2012, and

was passed to September 24, 2012 because the Defendant was· not transported

to the courthouse. Id. at 9. On September 24, 2012, at the first pretrial

conference, the Defendant requested a continuance, and additional discovery

was ordered. Id. A second pretrial conference took place on November 13,

· 2012,·a~ which.time the case was placed on the trial list. Id. . ·

On December ·. . 20, 2012, at the first trial list,. the case was continued . . to

next trial list because the Defendant was not transported, the continuance was

placed on Defendant. Id. At the next triallist January 17, 2013, the.case was

placed on the standby trial list for the period of January 23, 2013 to February

1, 2013. Id. On January 18, 2013, the Defendant's bail was reset to $50,000 3 The Defendant was arraigned in front of The HonorableWilliamT. Nicholas, Senior Judge. cash, and Attorney McMahon entered his appearance. Id. at 10. On or about

January 24, 2013, Defendant posted bail. On January 31. 2013, the case was

called in for trial, at which time the Commonwealth was ready to proceed,

however, the Defendant requested a continuance and the first Rule 600 waiver

was signed. Id. At the March 28, 2013 trial list, the case was placed on

standby, and was not reached during the period of April 1-12, 2013. Id. at 10-

11. At April 18, .2013 trial list, the case was again placed on standby from

April 22 to May 3, 2013. Id. at 11. On April 29, 2013, the case was called for

trial; the Commonwealth was ready to proceed; Defense counsel was not

prepared for trial, therefore, Defendant requested a continuance and signed

another Rule 600 waiver. Id. At the May 161 2013 trial list, the case was again

placed on standby from May 20 to June 14, 2013, and was not reached during

that period. Id. At the June 21, 2013 trial list, the case was placed on standby

from June 24 to July 26, 2013, and, again, the case was not reached. Id. At

·the August 2, 2013 trial list, the case was placed on standby from August 5 to

August 30, 2013, and was not reached; there was no indication that the

Commonwealth was not ready to proceed. Id. at 11-12. At the September 9,

2014 trial list, the case was again placed. on standby from September 11, ..2013

to September . 2-7, 2013, . and was not reached. Id. ~ at 12. At 'the. October 8, · ·

2013tria.l list, the-case was placed on standby from October 10 to November 1,

2013, and was not reached. Id. At the November 13, 2013 trial list, Defendant

requested a 60 day continuance. Id. At the January 7, 2014, trial list, the case

was placed on standby from January 10 to January 31, 2014, and was not reached. Id. At the February 11, 2014 trial list, the case was placed on

standby trial list for February 24 to March 7, · 2014 and given priority. Id. On

February 2°4, 2014, the case was called for trial. The Defendant was

'undergoing surgery; therefore, Attorney McMahon requested a continuance

and a Rule 600 waiver was signed. Id. at 12-13. At the March 18, 2014,

because the case had been previously continued, the defense continuance was

noted for the record. Id. at 13. At the June 4, 2014 trial list.tease was again

continued by the Defendant due to his continued illness. Id. At the June 30,

2014 trial list, Defendant requested a continuance and a Rule 600 waiver was

signed. Id. At the July 28, 2014 trial list, case was given date certain of

November 17, 2014. Id. At the October 20, 2104 trial list, the date certain

was again noted. On November 17, 2014, attorney McMahon indicated that

there was a problem with the case and that Defendant wished to obtain new

counsel. lg. The next day, on November 18, 2014, attorney McMahon filed a

motion to withdraw, date certain was continued for new counsel to enter

appearance. Id. at 13-14, The motion was granted on or about December 8,

·2014. At December 8, 2014 trial list, Defendant's new counsel, Attorney .. ; .

Walsh, was not prepared . . for trial. and . requested . a continuance; . . ' Defendant . · ·=·.

signed a Rule 600 waiver. Id. at 14. On December 22, 2014, Defendant's bail

'was revoked because of a new arrest. Id. Trial was scheduled for.Janua.ry'l~·,.

2015. Id. On January 6, 2015, Attorney Walsh filed a motion to continue the

January 12, 2015 trial date, the Court granted the motion, and a Rule 600

waiver was signed. Id. By order of January 14, 2015, trial was again scheduled for February 2, 2015; however, Defense counsel was unavailable.

Id. At the January 20, 2015 trial list, the date certain was continued to

February 9, 2015. On February 3, 2015, Defendant filed a Motion to Dismiss

based on Rule 600. Id. A hearing on the motion to dismiss began on February

5, 2015 and concluded on February 9, 2015. Jury selection commenced

immediately following the denial of the Rule 600 motion.

Following a two day jury trial, Defendant was convicted of Count 1-

Robbery," Count 3-Terroristict Threats.> Count 4-Theft By Unlawful Taking,"

Count 5-Receiving Stolen Property," Count fr-Possessing an Instrument of

Crimea and Count 9-Simple Assault", On May 5, 2015, Defendant received an

aggreg~te sentence of 11-25 years to be served in a State Correctional Facility.

Defendant did not file any post sentence motions. On June 3, 2015, Defendant

filed a timely notice of appeal and has complied with this Court's June 5, 2015

· Order for a Concise Statement .

. ID. Issues

_ Defendant raises the following issues in his concise statement:

l. ·The Appellant was never properly arraigned in this matter · in that:

a. The Bills of Information were not signed -or filed by the Commonwealth at the time of the arraignment, and ·

4 18 Pa. C.S.A. § 370l(a)(l)(iv) s 18 Pa. C.S.A.§2706(a)(1) 6 18 Pa. C.S.A. §392l(a) 1 18 Pa. C.S.A. §3925(a) a 18 Pa. C.S.A. §907(a) 9 18 Pa. C.S.A. §270l(a)(3) b. The Appellant was allowed to proceed pro se without the court conducting a colloquy to determine if the Appellant could represent himself at the arraignment

2. The Appellant's right to a speedy trial under Pennsylvania Rule 600 was violated and the Commonwealth did not establish due diligence because it was partially the Commonwealth's fault that the Appellant was not properly arraigned.

IV. Discussion

1, Defendant was properly arraigned. Alternatively, any defect in his arraignment was harmless error.

The purpose of arraignment is to fix the identity of the accused, to

advise the Defendant the charges against him and to allow him to enter a

plea. See Commonwealth v. Blackwell, 458 A.2d 541,543 (Pa. Super.

1983}. Failure to comply with the technical requirements of the Rule is

harmless error if the purposes of arraignment have been fulfilled when

defendant suffers· no prejudice. Id. (citing Commonwealth v. Jennings,·

285 A.2d 143 (Pa. 1971))10.

· Pursuant to the Rules of Criminal Procedure,

(.C} Atarraignment, the defendant shall be advised:

(1) of the right to be represented by counsel; (2} of the nature of the charges contained in the information; · (3) of the right to file motions, including a Request for a · Bill of Particulars, a Motion for Pretrial Discovery and Inspection, ... and the time limits within which the · motions must be filed; and (4) if the defendant fails to appear without cause at any proceeding for which the defendant's presence is required, including trial, that the defendant's absence 10 These cases deal with the former rule regarding arraignment, Pa. R. Crim. P. 317. may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant's absence.

Pa. R. Crim. P. 571

a. The purpose of arraignment was accomplished and the Bills of Information were filed August 22; 2012.

At the Defendant's formal arraignment on August 21, 2012, which was

held via videoconference as permitted by Pa. R. Crim. P. 57 l(B), the Assistant

District Attorney indicated that she had the Bills of Information and could sign

them but she wanted to make two amendments. (N,T.,Videotaped Formal

Arraignment, 8/21/12, pg. 4). The Court was given a copy of the Bills.

The Court then began to read the Bills of Information to the Defendant.

Id. at 5. Following count 1, the Defendant refused to enter a plea because he

did not believe that the Court had subject matter jurisdiction. (N.T.,

Videotaped Formal Arraignment, 8 / 21 / 12, pg. 5-6}. After assuring the

. Defendant that subject matter jurisdiction did, in fact, lie with the Court of

Common Pleas, the Court attempted, again, to have the Defendant enter a. plea,

however, the Defendant refused to participate in the formal arraignment

process. Id. at 7. Therefore, the Court indicated that pleas of not guilty would

be_ entered on his behalf .. Id. After challengingthe Court's authority to enter

pleas on his behalf, the Defendant agreed to let the Court proceed with a

formal arraignment, Id. at 8~9. The Court again attempted to read the formal

charges, and, again, the Defendant continued to challenge the Court's subject

matter jurisdiction. Id. at 10. Therefore, the Court entered pleas of not guilty

on all counts on his behalf. The Bills of Information were filed the next day, and do not reflect the

amendment the Assistant District Attorney indicated she would make.

Therefore, but for the Defendant's obstreperous behavior, the Court would have

read the charges from an identical copy of the Bills of Information. The

Defendant's behavior resulted in pleas of not guilty being entered on his behalf;

therefore, Defendant cannot show that he suffered any prejudice as a result of

-the Bills being filed one day after arraignment.

b, Failure to colloquy the Defendant was harmless error.

While arraignment is a crucial stage of the proceedings and a Defendant

is entitled to counsel at that stage, there is no error or prejudice where a

.Defendant appears pro se and enters a plea of not guilty without waiving any

rights. See Commonwealth v. Jones, 308 A.2d 598, 602-603 (Pa.

1973)(Finding arraignment not fatally defective where defendant appeared pro

se, signed pauper's oath, and entered plea of not guilty where counsel was

appointed shortly after arraignment and defendant's ability to present a

defense· suffered no prejudice). . . A; public .defender was in the courtroom and. attempted torepresent

· Defendant, however, Defendant indicated his desire to proceed pro se at.that

stage, which the Court allowed. The followingexchange took place between

the public defender, the defendant and the Court:

Mr. Nester: Do you understand that at formal arraignment, your charges would be read in open court, and you would be advised of certain deadlines for the filing of various motions and requests for discovery from the Commonwealth? Okay?

Defendant; Yes. Mr. Nester: Okay. Are you willing today to waive that formal arraignment? And you will be presented with a form later on- --I guess as soon as they can get one to you, that you can sign and enter a written plea of not guilty. Okay.

Defendant: No, rm not willing to waive the formal arraignment. I'm also prepared to go pro se today. I have submitted some things to the Court, and I've gotten it back, so I'm sure the court has it. And I just need you to be standby counsel, if that's okay with the Judge.

Court: Yes. All right.

Defendant: I have some issues I want to talk about.

Mr. Nester: Okay. The judge is going to instruct you from here. Okay? And I will be in the courtroom.

N.T., Videotaped Formal Arraignment, 8/21/ 12, pp. 2-3.

While it is true that the Court did not colloquy the defendant before

allowing him to proceed prose, such error is harmless error. Attorney Nester

began to advise the Defendant of his rights and what would happen at a formal

arraignment. Counsel remained in the Courtroom and was available to the

Defendant. After being allowed to address the Court directly, the Defendant's

behavior resulted in the Court entering· pleas of not guilty on his behalf. Both

the Court and the public defender's office believed that Defendant was properly

arraigned and proceeded accordingly. A public defender enteredher

appearance on September 4, 2012 and filed a timely Request for Pre-Trial

Discovery that same day pursuant to Pa. R. Crim. P. 573(A). · Additionally, on

September 12, 2012, she filed an omnibus pretrial motion, which is required to

be filed within 30 days of arraignment. Pa. R. Crim. P. 579. Defendant was

zealously represented by counsel at all times following his arraignment and his rights were protected by the filing of all appropriate motions, therefore, he

suffered no prejudice from being permitted to appear prose at his arraignment.

2. Rule 600 was not violated.

The Defendant was properly arraigned, alternatively, as discussed above,

any defect in his arraignment was harmless error, therefore, there can be no

violation of Rule 600 based on a defect in the arraignment.

Rule 600 provides, in pertinent parts:

(A). Commencement of Trial; Time for Trial

(2)Trial shall commence within the following time periods. ~ ·-· . .-:J

(a) Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed.

(C) Computation of Time

(1) For purposes of paragraph (A), 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.

Pa: R. Crim. P. 600

This 365-day period in which trial must commence Is known as the

·«~e~hanical· run" date. Commonwealth. v. McNear, 852 A.2d 401, 406 (Pa.

Super. 2004}. "The mechanical run date can be modified or extended by adding

to the date any periods of excludable or excusable delay. Once the mechanical

run date is modified, it then becomes an adjusted run date." Id. A defendant is not automatically entitled to dismissal of the charges where trial starts after

the mechanical run date, rather dismissal is only proper where defendant is

not brought to trial within the adjusted run date, after subtracting all

excusable and excludable time. Commonwealth v. Roles, 116 A.3d 122 (Pa.

Super. 2015), reargument denied (July 14, 2015)(citing Commonwealth v.

Goldman, 70 A.3d 874, 879 (Pa. Super. 2013) @peal denied, 85 A.3d 482 (Pa.

'2014)).

"Excludable time includes delay caused by the defendant or his lawyer.

Concomitantly, excusable delay occurs where the delay is caused by

'circumstances beyond the Commonwealth's control and despite its due

diligence." Id. Additionally, "delay occasioned by the court's unavailability is

usually excusable. However, the Commonwealth may, under some

circumstances (e.g. a prolonged judicial absence), have a duty to seek other

courtrooms to try the case. The extent of this duty depends on the specifics of

each case." Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa. Super.

201 l)(citations omitted). Due diligence is a fact-specific concept to be

· determined on a case-by-case basis. It requires the Commonwealth to put forth

a reasonable effort but does not demand perfect vigilance or punctilious care.

Corrunonwealth v. Claffey, 80 A.3d 780, 786 (Pa. Super. 2013), reargument

· denied (Aug. 2.~,. 2013), appeal denied. 86 A.3d 231 (Pa. 20l4}(citations

omitted). The Commonwealth bears the burden of demonstrating that it

exercised due diligence by a preponderance of the evidence. Commonwealth v.

Bradford, 616 Pa. 122, 136 (2012). The standard of review relating to the application of Rule 600 is "whether

the trial court abused its discretion. Our scope of review is limited to the

evidence on the record of the Rule 600 evidentiary hearing and the findings of

the trial court. We must view the facts in the light most favorable to the

prevailing party." Commonwealth v. Malgieri, 889 A.2d 604, 606 (Pa. Super.

2005).

A criminal complaint in the instant matter was filed June 18, 2012,

therefore, for purposes of Rule 600, the mechanical run date was June 18,

2013. Jury selection began on February 9, 2015, 966 days after the filing of

the complaint. However, the bulk of this delay was attributable to the

Defendant's medical condition, the unavailability of Defense counsel, and a

backlog of the Court's docket. {SeeN.T., Rule 600 Hearing/ Jury Selection,

2/9/15, pg. 83-84). No evidence was presented to indicate that the

Commonwealth unprepared for trial. The Assistant District Attorney admitted

39 emails detailing her communications with witnesses, Defense counsel and

the·Court attempting to bring thiscase to trial. See exhibits C-1 through C-39.

Additionally, there was no prolonged judicial absence triggering a duty on the·

part of the Commonwealth to seek another courtroom in which to try this case:

(N.T.,Rule 600 Hearing/ Jury Selection, 2/9 / 15, pg. 83).

For purposes of Rule 600, the only time that is not excludable or

excusable appears to be 135 days. {98 days from the date of arrest (6/18/ 12)

until the first pretrial conference (9/24/12) and 37 days from the time the case

was placed on the trial list (11/ 13/ 12) until the first trial listing (12/20/ 12)). ~ I ;..

Therefore, 831 days are excludable or excusable based on the Defendant's

medical condition, defense counsel's schedule and the Court's unavailability

and not on a failure of the Commonwealth. to exercise due diligence.

Therefore, the adjusted run date is September 27, 2015 (831 days from the

mechanical run date of June 18, 2013),11 Trial commenced on February 9,

2015, well before the adjusted run date. Therefore, the Court did not abuse

its discretion by denying the motion.

V. Conclusion

Based on the foregoing, the judgement of sentence should be affirmed.

BY THE COURT:

~-L--J-.-

Copies sent on 8'j? ft S to the following: · Robert Falin, Esq. (Distric,t Attorney's Office) Francis Walsh; Esquire/ Cl ofC urts

ii There was some argument regarding a period of 28 days from 12/20/ 12- 1 I 17I 13 and whether that continuance was properly placed on the Defendant where the Defendant was not transported. (N.T.,Rule 600 Hearing/Jury· Selection, 2/9/ 15, pg. 9-10). Even assuming, arguendo, that the time should count against the Commoriwealth, Defendant was still tried well before an adjusted run date of August 31, 2015 if that time is not properly excludable,