J-A22044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : HOUDINI MASOYAMA SAUNDERS : : Appellant : No. 290 MDA 2021
Appeal from the Judgment of Sentence Entered February 1, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001602-2015
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: FEBRUARY 4, 2022
Appellant, Houdini Masoyama Saunders, appeals nunc pro tunc from the
judgment of sentence entered in the Dauphin County Court of Common Pleas,
following his jury trial convictions for possession of a controlled substance with
intent to deliver (“PWID”) and possession of drug paraphernalia.1 We remand
this case to the trial court for further findings of fact regarding whether
dismissal of the charges was warranted under Pa.R.Crim.P. 600.
The relevant facts and procedural history of this appeal are as follows.
On July 16, 2014, members of the Dauphin County Drug Task Force conducted a buy/walk operation in Susquehanna Township. A buy/walk operation is one in which the intent is to purchase controlled substances from an individual but then to allow them to leave without being arrested so that the investigation may continue.
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1 35 P.S. § 780-113(a)(30), (32). J-A22044-21
In the presence of the task force officers, a confidential informant (“CI”) placed a telephone call to an individual named Sara and arranged to purchase a brick of heroin. The exchange was to occur at the Union Square Shopping Center. Before going to the arranged location, the officers conducted a thorough search of the CI at a secure location to assure that he or she did not have any drugs on their person. Nothing was discovered. From that point forward, the CI was either in the custody of the officers or under their constant surveillance. The CI drove to the meeting location in a vehicle with Sergeant Ashley Baluh, whose job was to act in an undercover capacity as the CI’s friend.
Twenty-two (22) minutes after placing the phone call, a black Dodge arrived at the shopping center. The vehicle had Florida license plates and appeared to be a rental car. Officer Clee Tilman, a police officer for thirteen (13) years who was overseeing the operation, testified that his training and experience have taught him that drug dealers often utilize rental cars to conduct their deals. A black male was the sole occupant of the Dodge, and the vehicle parked “directly near” where the CI and Sergeant Baluh were parked. The CI exited Sergeant Baluh’s vehicle and entered the passenger side of the Dodge. The Dodge drove a loop around the parking lot and then returned to the area near where it was originally parked. The CI then returned to Sergeant Baluh’s vehicle and turned over forty-two (42) bags of heroin. Only three (3) minutes had passed since the time the Dodge arrived. The Dodge then exited the shopping center.
With Officer Tilman and Detective Gary Flythe following in separate vehicles, Officer Ryan Lindsley was directed to execute a traffic stop of the Dodge to identify the occupant. Officer Lindsley pulled the Dodge over approximately one and one-half (1½) miles from the shopping center. Once the CI exited the Dodge, no one else entered or exited the vehicle until the traffic stop. Officer Lindsley requested the driver provide identification and he ultimately issued him a written warning. He was able to identify the driver as [Appellant].
(Trial Court Opinion, filed April 5, 2021, at 3-4) (internal record citations
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omitted).
The Commonwealth filed a criminal complaint on October 29, 2014, and
Appellant proceeded to a preliminary hearing on March 12, 2015. Following
the preliminary hearing, the court granted Appellant’s release on unsecured
bail. The court also scheduled Appellant’s formal arraignment for May 11,
2015. On March 16, 2015, Appellant was transported to state prison for a
state parole detainer. Consequently, Appellant did not appear at his formal
arraignment, and the court issued a bench warrant.
On August 17, 2016, Appellant was arrested and detained on the bench
warrant. The court also scheduled Appellant’s next listing for September 14,
2016. Appellant posted bail on August 22, 2016 and subsequently filed pro
se motions to dismiss the charges pursuant to Rule 600 on September 9, 2016
and September 15, 2016.2 The court conducted a Rule 600 hearing on
October 7, 2016, but Appellant did not appear. At the conclusion of the
hearing, the court dismissed the pro se motions and indicated that the next
listing was scheduled for November 16, 2016. (See N.T. First Rule 600
Hearing, 10/7/16, at 3).
On November 17, 2016, the Public Defender’s office filed a motion for
continuance on Appellant’s behalf. The court granted Appellant’s motion and
2At the time he filed the pro se motions, Appellant had a pending application with the Public Defender’s office. (See N.T. First Rule 600 Hearing, 10/7/16, at 2).
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continued the matter until February 2, 2017. On February 2, 2017, Appellant
requested another continuance. The court granted Appellant’s request and
continued the matter until March 1, 2017.
Thereafter, the record reveals that Appellant’s case was rescheduled on
multiple occasions between March 1, 2017 and January 3, 2018.3 The
rescheduling notice filed on January 3, 2018 listed the matter for March 7,
2018. Prior to that listing, Appellant filed a counseled Rule 600 motion on
February 5, 2018. In it, Appellant argued that over one thousand days had
elapsed since the filing of the criminal complaint, and much of the delay was
directly attributable to the Commonwealth. Appellant emphasized the period
where he was in state prison for the parole detainer, claiming “even a minimal
exercise of due diligence on the part of the Commonwealth would have
revealed [Appellant’s] location.” (Rule 600 Motion, filed 2/5/18, at ¶8).
The court conducted a Rule 600 hearing on March 26, 2018. At the start
of the hearing, the Commonwealth immediately shifted the court’s focus to
one discrete period of delay: “Really, what’s at issue here are 519 days in
which [Appellant] was in the custody of the Department of Corrections. That’s
from March 16th of 2015 through August 16th of 2016.” (N.T. Second Rule
600 Hearing, 3/26/18, at 2). Relying on Commonwealth v. Baird, 601 Pa.
3 The rescheduling notices contained in the record on appeal do not provide an explanation regarding what prompted these delays. The docket entries, however, indicated that Appellant was “not ready” on two occasions: August 2, 2017 and September 29, 2017.
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625, 975 A.2d 1113 (2009) and Commonwealth v. Wright, 178 A.3d 884
(Pa.Super. 2018), the Commonwealth argued that the period at issue
amounted to excludable delay. Other than the period where Appellant was in
state custody, the parties did not address any of the other delays that occurred
prior to the filing of the Rule 600 motion. On July 3, 2018, the court denied
Appellant’s Rule 600 motion.
Following trial, a jury convicted Appellant of PWID and possession of
drug paraphernalia. On February 1, 2019, the court sentenced Appellant to
an aggregate term of two (2) to six (6) years’ imprisonment. Appellant timely
filed a notice of appeal, which this Court dismissed on January 2, 2020 due to
Appellant’s failure to file a brief.
On August 31, 2020, Appellant timely filed a pro se petition pursuant to
the Post Conviction Relief Act, at 42 Pa.C.S.A. §§ 9541-9546. The court
appointed counsel, who filed an amended petition on December 17, 2020. On
February 2, 2021, the court reinstated Appellant’s post-sentence and direct
appeal rights nunc pro tunc. Appellant timely filed a post-sentence motion
nunc pro tunc on February 12, 2021, challenging the weight of the evidence
supporting his convictions. On March 2, 2021, the court denied Appellant’s
post-sentence motion nunc pro tunc.
Appellant timely filed a notice of appeal nunc pro tunc on March 3, 2021.
On March 9, 2021, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant timely filed
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his Rule 1925(b) statement on March 30, 2021.
Appellant now raises four issues for our review, which we have
reordered as follows:
Whether the trial court did not properly address trial counsel’s objection to the proposed jury instructions regarding burden of proof[?]
Whether the evidence presented by the Commonwealth at trial was not sufficient to prove Appellant delivered a controlled substance?
Whether the trial court erred when denying Appellant’s motion for a new trial based on the weight of the evidence?
Whether the trial court abused its discretion when it denied Appellant’s motion to dismiss the criminal docket pursuant to Pa.R.Crim.P. 600?
(Appellant’s Brief at 8).
In his first issue, Appellant asserts that trial counsel objected to the
court’s jury instruction regarding the Commonwealth’s burden of proof.
Following the objection, Appellant complains that the court did not clarify its
instruction or issue a curative instruction based upon counsel’s objection.
Appellant further argues that the trial transcripts “do not reflect that this
objection was addressed by the trial court with the jury….” (Id. at 14).
Appellant concludes that he is entitled to a new trial due to the court’s failure
to address the objection with the jury. We disagree.
“The trial court has considerable discretion in fashioning a jury charge.”
Commonwealth v. Gomez, 224 A.3d 1095, 1102 (Pa.Super. 2019), appeal
denied, ___ Pa. ___, 236 A.3d 1053 (2020). “The court is free to use its own
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expressions, provided it clearly and accurately conveys the applicable legal
concepts at issue.” Id. “In reviewing instructions to a jury, we consider the
entire charge, ‘not merely discrete portions thereof.’” Id. (quoting
Commonwealth v. Johnson, 630 Pa. 493, 552, 107 A.3d 52, 88-89 (2014)).
“The trial court is not required to give every charge that is requested by the
parties and its refusal to give a requested charge does not require reversal
unless the appellant was prejudiced by that refusal.’” Commonwealth v.
Scott, 73 A.3d 599, 602 (Pa.Super. 2013) (quoting Commonwealth v.
Brown, 911 A.2d 576, 583 (Pa.Super. 2006)).
Our Supreme Court has addressed “burden of proof” and “reasonable
doubt” instructions as follows:
Without impinging on the discretion of the trial courts to phrase their own instructions, we have acknowledged charges in other cases that would clearly enable a jury to determine whether the Commonwealth has met its burden of proof.
It is true that this Court has never required a single standard charge on reasonable doubt. However, we also have never stated that a jury may be given a reasonable doubt charge that fails to define reasonable doubt.
Moreover, we have repeatedly placed our imprimatur on the charge expressed in Commonwealth v. Donough, 377 Pa. 46, 51-52, 103 A.2d 694, 697 (1954).
“A standard and approved form of charge on this point would be: ‘The defendant comes before you presumed to be innocent and the burden is upon the Commonwealth to prove his guilt beyond a reasonable doubt. A reasonable doubt cannot be a doubt fancied or conjured up in the minds of the jury to escape an unpleasant verdict; it must be an honest doubt arising
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out of the evidence itself, the kind of doubt that would restrain a reasonable man (or woman) from acting in a matter of importance to himself (or herself).’”
Commonwealth v. Ragan, 560 Pa. 106, 128-29, 743 A.2d 390, 402 (1999).
Instantly, the relevant portion of the court’s jury instruction provided:
A person accused of a crime is not required to present evidence or prove anything in their own defense. If the Commonwealth’s evidence fails to prove that the defendant is guilty beyond a reasonable doubt, your verdict must be not guilty. On the other hand, if the Commonwealth’s evidence does prove beyond a reasonable doubt that the defendant is guilty, well then, your verdict should be guilty.
Although the Commonwealth has the burden of proving that the defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt or to a mathematical certainty nor must it demonstrate the complete impossibility of innocence.
A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in their own affairs. A reasonable doubt must fairly arise out of the evidence presented with respect to some element of the crime.
A reasonable doubt must be a real doubt. It may not be an imagined one nor may it be a doubt that was manufactured to avoid carrying out an unpleasant duty. It must be an honest doubt arising out of the evidence itself, the kind of doubt that would restrain a reasonable person from acting in a manner of importance to themselves.
(N.T. Trial, 1/15-16/19, at 95-96).
The court completed its charge, and the jury exited the courtroom to
commence deliberations. At that point, trial counsel raised the following
objection:
Yes, Your Honor, just on the presumption of innocence,
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burden of proof, reasonable doubt instruction, on the standard instructions actually submitted by [the Commonwealth], I was taking exception to the lack of the phrase “a reasonable doubt must fairly arise out of the evidence that was presented” and this part was omitted “or out of the lack of evidence presented” and it goes on from there. But just that portion of the phrase there.
(Id. at 104). The court responded, “So noted.” (Id.) Although the court did
not expressly overrule the objection, the jury returned to the courtroom and
the court did not issue any further instructions.
Our review of the entire jury charge reveals that the court adequately
conveyed the legal concept at issue. See Ragan, supra; Gomez, supra.
Here, the court’s refusal to include the specific language requested by trial
counsel did not result in prejudice to Appellant. See Scott, supra. Thus,
Appellant is not entitled to relief on this claim.
In his second and third issues, Appellant argues that he was not the
target of any prior investigation and the police simply “equated suspicious
activity with a vehicle with an out of state license.” (Appellant’s Brief at 17).
Further, Appellant contends that the CI “never made a connection between
the individual the CI called and the individual who delivered the controlled
substance.” (Id.) Appellant emphasizes that the CI never met or identified
Appellant, and the CI’s failure to identify Appellant as part of the drug
distribution operation shocks one’s sense of justice. Appellant concludes the
Commonwealth presented insufficient evidence to support his PWID
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conviction, and the PWID conviction was against the weight of the evidence.4
We disagree.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant’s crimes beyond a reasonable doubt, the appellant’s convictions will be upheld.
4 The arguments in Appellant’s brief do not specifically challenge Appellant’s conviction for possession of drug paraphernalia. See Appellant’s Brief at 17 (stating “Commonwealth failed to present sufficient evidence that Appellant delivered a controlled substance,” and regarding weight, “evidence presented did not establish that … Appellant delivered a controlled substance”).
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Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019)
(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super.
2013)).
Additionally,
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the…verdict if it is so contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d 666, 672-73 (1999). Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
The offense of PWID is defined by statute as follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
* * *
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or
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knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30).
To establish the offense of PWID, the Commonwealth must prove
beyond a reasonable doubt that the defendant possessed a controlled
substance with the intent to deliver it. Commonwealth v. Jones, 874 A.2d
108, 121 (Pa.Super. 2005).
The trier of fact may infer that the defendant intended to deliver a controlled substance from an examination of the facts and circumstances surrounding the case. Factors to consider in determining whether the drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior of the defendant.
Id. (quoting Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super.
2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)). “[A]ll of the facts
and circumstances surrounding the possession are relevant and the elements
of the crime may be established by circumstantial evidence.”
Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005), appeal
denied, 586 Pa. 724, 890 A.2d 1057 (2005).
Instantly, the Commonwealth presented testimony from Sergeant
Baluh, who drove the CI to the shopping center to conduct the controlled
purchase of heroin. (See N.T. Trial at 79-80). Prior to departing for the
shopping center, another officer searched the CI to confirm that no contraband
was on the CI’s person. (Id. at 41, 79). Once at the shopping center, the CI
remained in Sergeant Baluh’s vehicle until the target vehicle, a black Dodge,
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arrived. (Id. at 80). The CI entered and exited the Dodge, returned directly
to Sergeant Baluh’s vehicle, and immediately handed the drugs to Sergeant
Baluh. (Id.) Subsequent testing confirmed the presence of heroin in the
drugs obtained from the driver of the Dodge. (Id. at 47).
Officer Tilman and Detective Flythe conducted surveillance during the
controlled purchase. (Id. at 39, 69). Detective Flythe testified that no one
else entered or exited the Dodge after the CI completed the transaction. (Id.
at 73). As the black Dodge pulled out of the parking lot, Officer Tilman
followed the vehicle and requested that Officer Lindsley conduct a traffic stop.
(Id. at 42). Moments later, Officer Lindsley executed the traffic stop and
discovered that Appellant was the driver and sole occupant of the vehicle.
(Id. at 65-66).
Viewing this evidence in the light most favorable to the Commonwealth
as verdict winner, the record supports the inference that Appellant delivered
the heroin to the CI. See Sebolka, supra; Jones, supra. Further, the trial
court concluded that the guilty verdict did not shock one’s sense of justice.
(See Trial Court Opinion at 7). On this record, we cannot say that the court
palpably abused its discretion in ruling on the weight claim. See Champney,
supra. Therefore, Appellant is not entitled to relief on his sufficiency and
weight claims.
In his final issue, Appellant argues that the Commonwealth filed the
criminal complaint on October 29, 2014, but he did not proceed to a jury trial
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until January 15, 2019. Appellant acknowledges several periods of delay were
attributable to the defense, including multiple requests for continuances in
2016 and 2017. Appellant insists, however, that at least seven hundred and
thirty-five (735) days of delay were not attributable to the defense. Appellant
concludes that the court abused its discretion by denying his Rule 600 motion.
Based upon our review of the record, an additional evidentiary hearing is
required.
The following principles apply to our review of a speedy trial claim:
Our standard of review in a Rule 600 issue is whether the trial court abused its discretion. Our scope of review when determining the propriety of the trial court is limited to the evidence in the record, the trial court’s Rule 600 evidentiary hearing, and the trial court’s findings. We must also view the facts in the light most favorable to the prevailing party[.]
Commonwealth v. Risoldi, 238 A.3d 434, 449 n.14 (Pa.Super. 2020),
appeal denied, ___ Pa. ___, 244 A.3d 1230 (2021).
Additionally, when considering the trial court’s ruling, this Court is not permitted to ignore the dual purpose behind Rule 600. Rule 600 serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society. In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. However, the administrative mandate of Rule 600 was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in a manner consistent with society’s right to
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punish and deter crime. In considering these matters …, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well.
Commonwealth v. Martz, 232 A.3d 801, 809-10 (Pa.Super. 2020) (quoting
Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa.Super. 2011)).
Rule 600 sets forth the speedy trial requirements and provides in
pertinent part:
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial
(2) Trial shall commence within the following time periods.
(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.
(3)(a) When a judge or issuing authority grants or denies a continuance:
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(i) the issuing authority shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance; and
(ii) the judge shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance. The judge also shall record to which party the period of delay caused by the continuance shall be attributed, and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with this rule.
Pa.R.Crim.P. 600(A)(2)(a), (C)(1), (3)(a).
“Rule 600 generally requires the Commonwealth to bring a defendant
on bail to trial within 365 days of the date the complaint was filed.”
Commonwealth v. Hunt, 858 A.2d 1234, 1240 (Pa.Super. 2004) (en banc).
A defendant on bail after 365 days, but before trial, may apply to the court
for an order dismissing the charges with prejudice. Id. at 1240-41. To obtain
relief, a defendant must have a valid Rule 600 claim at the time he files the
motion to dismiss. Id. at 1243.
[A] defendant is not automatically entitled to discharge under Rule 600 where trial starts more than 365 days after the filing of the complaint. Rather, Rule 600 provides for dismissal of charges only in cases in which the defendant has not been brought to trial within the term of the adjusted run date, after subtracting all excludable and excusable time. The adjusted run date is calculated by adding to the mechanical run date, i.e., the date 365 days from the complaint, both excludable time and excusable delay. “Excludable time” is classified as periods of delay caused by the defendant. “Excusable delay” occurs where the delay is caused by circumstances beyond the Commonwealth’s control and despite its due diligence. “Due diligence is a fact-specific concept that must be determined on a case-by- case basis. Due diligence does not require perfect vigilance
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and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been put forth. Due diligence includes, inter alia, listing a case for trial prior to the run date, preparedness for trial within the run date, and keeping adequate records to ensure compliance with Rule 600. Periods of delay caused by the Commonwealth’s failure to exercise due diligence must be included in the computation of time within which trial must commence.
Martz, supra at 810-11 (quoting Commonwealth v. Moore, 214 A.3d 244,
248-49 (Pa.Super. 2019), appeal denied, ___ Pa. ___, 224 A.3d 360 (2020))
(internal citations and some quotation marks omitted).
Instantly, the Commonwealth filed the criminal complaint on October
29, 2014. Therefore, the mechanical run date was October 29, 2015.
Appellant proceeded to a preliminary hearing on March 12, 2015. Following
the preliminary hearing, the court granted Appellant’s release on unsecured
bail, and it scheduled the formal arraignment for May 11, 2015. The certified
record includes numerous documents signed by Appellant, which demonstrate
that he received notice of the arraignment date. (See Bail Bond Form, dated
3/12/15, at 1; Bail Release Conditions, dated 3/12/15, at 1; Surety
Information Page, dated 3/12/15, at 1; Notice of Formal Arraignment, dated
3/12/15, at 1).
Prior to the arraignment, Appellant was transported to state prison for
a state parole detainer. Consequently, Appellant did not appear at his formal
arraignment, and the court issued a bench warrant on May 11, 2015.
Appellant was not arrested on the bench warrant until August 17, 2016. The
period of Appellant’s unavailability between May 11, 2015 and August 17,
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2016 constituted 464 days of delay. In evaluating this period, the court relied
on Baird, supra and Wright, supra to find that the delay was excludable:
In Wright, after twenty-five (25) years had passed since the issuance of a bench warrant for failure to appear, the defendant, who had been charged with Driving Under the Influence and Reckless Driving, moved to dismiss the charges pursuant to Rule 600. The trial court granted the defendant’s motion to dismiss, and the Commonwealth appealed, asserting that the court abused its discretion when [the defendant] admitted he had notice of the court proceeding in question, but willfully failed to appear. Relying on [Baird, supra], the Commonwealth argued it had no requirement to seek out [the defendant] during the twenty-five (25) year period, where all excludable time resulted from [the defendant’s] failure to appear [due to unrelated arrests and incarceration]. The Superior Court agreed, and reversed the order granting dismissal.
In this case, [Appellant] was granted unsecured bail at his Preliminary Hearing on March 12, 2015. [Appellant] signed paperwork to this effect, where his residential address was listed not once, but twice, and the second notation is in [Appellant’s] own handwriting. Additionally, [Appellant] signed the surety information page, which also listed the same residential address. [Appellant] had notice of his Formal Arraignment date, which was May 11, 2015. [Appellant] had a state parole detainer and, a few days after the Preliminary Hearing on March 12, 2015, he was transported to state prison. The District Attorney of Dauphin County was not made aware he was sent to state prison. A warrant was issued for [Appellant’s] failure to appear. Further, [Appellant] failed to advise the Clerk of Courts of his change of residence at this docket.
Here, like in Baird and Wright, because [Appellant] had reasonable notice of the court proceedings but failed to appear, the Commonwealth’s due diligence in attempting to locate him need not be assessed. [Appellant] undertook to accept the status of bail and assumed responsibility for making himself available. [Appellant] argues that this case
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is distinguishable from Wright because here there was never a break in custody and [Appellant] was always under the Commonwealth’s dominion. We decline to follow this reasoning, as [Appellant] was not held continuously on this docket. Rather, going back to the crux of the issue, [Appellant] signed his bail piece stating and acknowledging his responsibility to appear and notice was given of the arraignment date; he took no effort to appear, nor did his defense counsel.
(Trial Court Opinion at 10, 12) (internal citations omitted). Under the
applicable standard of review, we cannot say that the court abused its
discretion in reaching this conclusion. See Risoldi, supra. See also Wright,
supra (holding twenty-five-year period between when bench warrant was
issued after defendant’s failure to appear at court proceeding and when
defendant turned himself in to police was excludable; Rule 600 clock begins
to “run again” when defendant is subsequently apprehended for charge at
issue; trial court erred in shifting burden to Commonwealth to demonstrate
due diligence under such circumstances).
Nevertheless, our analysis does not end here, as there were several
more pretrial delays requiring evaluation. After Appellant’s arrest on the
bench warrant, the court scheduled a listing for September 14, 2016. Prior to
that listing, Appellant filed a pro se Rule 600 motion. The court conducted a
Rule 600 hearing on October 7, 2016, but Appellant did not appear. At the
conclusion of the hearing, the court dismissed the pro se motion and indicated
that the next listing was scheduled for November 16, 2016. On November 17,
2016, the Public Defender’s office filed a motion for continuance on Appellant’s
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behalf. The court granted Appellant’s motion and continued the matter until
February 2, 2017. On February 2, 2017, Appellant requested another
continuance. The court granted Appellant’s request and continued the matter
until March 1, 2017. Because Appellant caused the delays between September
14, 2016 and March 1, 2017, this period was excludable from the calculation
of the adjusted run date. See Martz, supra.
The following chart summarizes the delays in bringing the case to trial
at this point:
DATES ACTIVITY DAYS EXCLUDABLE ADJUSTED DELAY RUN DATE
10/29/14- Commonwealth filed criminal 134 No 10/29/15 3/12/15 complaint; court conducted preliminary arraignment
3/12/15- Court conducted preliminary 60 No 10/29/15 5/11/15 hearing; court granted Appellant’s release on unsecured bail; court scheduled formal arraignment for 5/11/15
5/11/15- Prior to formal arraignment, 464 Excludable; 2/4/17 8/17/16 Appellant was transported to Appellant failed state prison for a state parole to appear at detainer; Appellant did not court appear for formal arraignment; proceeding, court issued bench warrant due despite having to Appellant’s failure to appear reasonable notice
8/17/16- Appellant was arrested and 28 No 2/4/17 9/14/16 detained on the bench warrant; docket indicates Appellant posted bail on 8/22/16
9/14/16- Appellant filed pro se Rule 600 63 Excludable; 4/8/17 11/16/16 motions; Appellant did not Appellant’s
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appear at Rule 600 hearing; pretrial filing court dismissed pro se Rule 600 created delay motion; court did not issue bench warrant, as it decided to wait and see if Appellant appeared at next scheduled listing on 11/16/16
11/16/16- Appellant requested 78 Excludable; 6/25/17 2/2/17 continuance; court granted continuance continuance until 2/2/17; requested Appellant expressly agreed to waive this period for Rule 600 purposes
2/2/17- Appellant requested 27 Excludable; 7/22/17 3/1/17 continuance; court granted continuance continuance until 3/1/17; requested Appellant expressly agreed to waive this period for Rule 600 purposes
Thereafter, the record reveals that Appellant’s case was rescheduled on
at least six (6) occasions during the 341-day period between March 1, 2017
and the filing of Appellant’s Rule 600 motion on February 5, 2018. The docket
entries indicate that Appellant’s unavailability created one stretch of delay:
the 105-day period from August 2, 2017 through November 15, 2017.
Nevertheless, this still leaves 236 days of delay where the record is silent as
to causation. Depending on how many of these 236 days were excludable,
Appellant might have had a valid Rule 600 claim on the date he filed his motion
to dismiss. See Hunt, supra.
Significantly, the court did not record which party caused these 236 days
of delay, and it did not determine whether the time should have been included
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in the computation of the adjusted run date. See Pa.R.Crim.P.
600(C)(3)(a)(ii). The transcript from the 2018 Rule 600 hearing and the
analysis in the trial court’s Rule 1925(a) opinion do not address the 236 days
of delay, and the court did not assess the Commonwealth’s due diligence in
bringing the case to trial during this period. See Martz, supra. Based upon
the foregoing, the trial court failed to provide an adequate analysis regarding
all periods of pretrial delay in the instant case.
Under such circumstances, the most prudent course of action is to
remand the matter for the limited purpose of conducting a supplemental Rule
600 hearing where the court can consider the delays that occurred following
Appellant’s 2016 release from state custody. See Commonwealth v.
Thompson, 93 A.3d 478 (Pa.Super. 2014) (remanding for trial court to
determine whether certain period of delay was attributable to Commonwealth
for Rule 600 purposes). Compare Commonwealth v. Harth, ___ Pa. ___,
___, 252 A.3d 600, 620 (2021) (holding that remand was unnecessary and,
in service of judicial economy, Supreme Court would review record de novo
and render due diligence determination; regarding remand, “trial court would
merely be tasked with reexamining the record and rendering a due diligence
determination based thereupon; we are perfectly capable of undertaking such
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an endeavor in the name of judicial economy and expediency”). 5 After it
receives additional evidence and argument from the parties, the court should
identify each period of delay and determine whether it is excludable under
Rule 600, as well as whether the Commonwealth acted with due diligence.
Case remanded. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/04/2022
5 We note that in Harth, the trial court relied upon its own congested schedule as justification for denying the defendant’s Rule 600 motion. In the instant case, however, the court did not consider the role that its schedule might have played in creating the 236 days of delay at issue. Instead, Appellant’s Rule 600 hearing focused exclusively on the period where Appellant was in state prison on a state parole detainer. Thus, Appellant’s case is distinguishable from Harth and remand for further, albeit limited, proceedings is required.
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