Com. v. Shue, N. ( 2017 )

J-S52008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
NEIL EUGENE SHUE, :
:
Appellant : No. 448 MDA 2017
Appeal from the Judgment of Sentence January 30, 2017
in the Court of Common Pleas of York County,
Criminal Division, No(s): CP-67-CR-0008298-2015
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 23, 2017
Neil Eugene Shue (“Shue”) appeals from the judgment of sentence
entered following his conviction of driving under the influence of alcohol or
controlled substance (general impairment) (“DUI”).1 We affirm.
On October 24, 2015, Shue was arrested and charged with DUI.
Following a bench trial on stipulated facts, the trial court found Shue guilty
of DUI, and sentenced him to six months of intermediate punishment, “to
include 5 days of house arrest and 15 days of alcohol monitoring.” N.T.,
1/30/17, at 3. Shue filed a post-sentence Motion, requesting that his
sentence be stayed pending appeal, and that bail be set. The trial court
granted Shue’s Motion. Thereafter, Shue filed the instant timely appeal,
followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
1
See 75 Pa.C.S.A. § 3802(a)(1).
J-S52008-17
Shue now presents the following claim for our review:
Whether the trial court erred in denying [] Shue’s Motion to
Dismiss Pursuant to Pa.R.Crim.P. 600 where, over a period of
464 days—only six of which are excludable—the Commonwealth
made only two half-hearted attempts to bring Shue to trial: 1)
listing the case for trial but canceling it to make way for a jury
trial that ended up being a guilty plea; and 2) emailing the trial
court’s chambers four days before the Rule 600 term elapsed to
request a trial date[?]
Brief for Appellant at 4.
Shue claims that the trial court improperly denied his Rule 600 Motion
to Dismiss, where the Commonwealth “showed only two half-hearted efforts
to try this case in more than a year’s time,” and had failed to carry its
burden in establishing due diligence. Id. at 19. Regarding the
Commonwealth’s efforts to bring Shue to trial, Shue claims that on July 27,
2016, he was in court and ready to proceed. Id. at 20. At that time, the
clerk of the Honorable Christy H. Fawcett (“Judge Fawcett”) explained that
she and Judge Fawcett were never notified that the trial would proceed on
that date. Id. Only two matters were on Judge Fawcett’s schedule for that
date: a bench warrant, and a jury trial in “the Servas case[.]” Id. at 21.
Shue claims that the Commonwealth should have been aware that the
Servas case would not go to trial. Id. According to Shue, Servas’s counsel
previously had informed the Commonwealth that his client would plead
guilty in exchange for no jail time. Id. The prosecutor should have known
that there would be no trial, as the Commonwealth intended to make such
an offer to Servas. Id. In fact, once the offer was extended, no trial took
-2-
J-S52008-17
place. Id. Shue also directs our attention to the fact that the
Commonwealth rejected two proposed rescheduled trial dates, based upon
its preference for a different judge. Id. at 22. Under these circumstances,
Shue argues, the Commonwealth did not exercise due diligence. Id.
Regarding the second delay, Shue states that the Commonwealth
requested a trial date on October 24, 2016. Id. at 23. However, when
informed that trial could not be scheduled until January 2017, the
Commonwealth failed to inform the trial court that the proposed date would
be beyond the time allowed under Rule 600. Id. Shue argues that “it can
hardly be seen as due diligence to wait until four days before the Rule 600
term elapses to request a trial date, and then do nothing when told the next
available date is in three months.” Id. According to Shue, “with the
slightest exertion, the Commonwealth could have had the case tried in a
timely fashion.” Id. at 24. Shue also disputes the Commonwealth’s
explanation that the United States Supreme Court’s decision in Birchfield v.
North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016),2
2
In Birchfield, the United States Supreme Court held that “a breath test,
but not a blood test, may be administered as a search incident to a lawful
arrest for drunk driving.” Birchfield, 136 S. Ct. at 2185, 195 L. Ed. 2d at
588. The Commonwealth asserts that the Birchfield decision “resulted in a
surplus of motions being filed to withdraw guilt[y] pleas previously
entered[,] and the filing of new motions to suppress, all requiring
consideration and court time from the bench.” Commonwealth’s Brief at 8
n.2.
-3-
J-S52008-17
which changed the proceeding from a jury trial to a bench trial, caused a
delay. Brief for Appellant at 25.
In its Opinion, the trial court set forth the relevant history underlying
this appeal and the applicable law, and concluded that Shue’s claim lacks
merit. See Trial Court Opinion, 4/26/17, at 5-11; see also id. at 1-5
(detailing the relevant history underlying the appeal). We agree with the
reasoning of the trial court, as set forth in its Opinion, and affirm on this
basis with regard to Shue’s claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2017
-4-
Circulated 08/11/2017 12:57 PM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH . ... ;.!..
OF PENNSYLVANIA
v. ...
NEIL EUGENE SHUE
Defendant
STATEMENT OF LOWER COURT PURSUANT TO
PA.R.A.P. 1925(a)
AND NOW, this 25th day of April, 2017, upon receipt of notice that an
appeal has been filed in this matter, and in consideration of the Concise
· Statement of Errors Complained Of on Appeal filed by Brian McNeil, Esquire,
on behalf of Neil Eugene Shue ("Defendant"), the undersigned files this
supplemental statement in support of its Order of January 27, 2017, denying
Defendant's Rule 600 Motion.
Factual and Procedural History:
Defendant was arrested and charged on October 24, 2015, with Driving
1
1
Under the Influence of Alcohol or Controlled Substance (DUI). Magisterial
District Judge (MDJ) Walter Groom scheduled Defendant's preliminary
hearing for November 18, 2015. The preliminary hearing was rescheduled by
MDJ Groom to December 14, 2015, as a result of a request by the defense.
(Tr. of 1/26/17, p.4.) The MDJ further rescheduled the matter to December
18, 2015. Defendant filed a waiver of arraignment on February 2, 2016.
A pre-trial conference was held on April 14, 2016, at which time
counsel indicated to the Court that the matter would be ready for trial during
the May term of criminal trials which ran from May 9, 2016, through May 27,
2016. ~ jury trial was requested. The case was not placed on the trial list in
May.
During this time period the York County Court was short-handed as a
result of two retirements and one judge on active duty in Afghanistan. On
July 5, 2016, two newly appointed judges were sworn onto the York County
Court; of the two, one was assigned to the criminal division. In an attempt to
reduce the caseload in the criminal division of the court, a number of jury and
I Defendant's second count of DUIwas dismissedpursuant to the decision in Birchfield v. North Dakota, 136
S. Ct. 2160, 195 L.Ed.2d560, 84 USLW 4493 (2016).
2
non-jury trials were assigned by court administration to the Honorable Christy
Fawcett. Defendant's case was assigned to Judge Fawcett and scheduled to be
heard on July 27, 2016, at 1 :30 p.m., however this information may not have
been communicated to Judge Fawcett or the clerk of court's office. (Tr. of
1/27/17, pp. 8, 17, 19; Commonwealth Exhibit No. 1.) On the same date, a
jury trial was scheduled before Judge Fawcett for 9:30 a.m. (Tr. of 1/27/17,
pp. 10, 16.) Leaming of the double scheduling, the district attorney's office
cancelled their witnesses for the non-jury trial. There was miscommunication
between the various offices, and in fact, the jury trial scheduled for the
morning resulted in a plea, however the Commonwealth did not learn of this
'
event until after witnesses were excused. Attempts were made to reschedule
Defendant's trial in early August 2016, however the affiant was not available.
Ultimately, the case was returned to the undersigned's trial list.
Defendant's case was not called to trial during the September 2016
criminal trial term, which ran from September 6, 2016, through September 23,
2016. The case was listed in the November criminal trial term that ran from
October 31, 2016, through November 18, 2016. However, on October 24,
3
2016, the assistant district attorney notified the court's assistant by email
message that as a result of the Birchfield decision, the case was no longer
being called as a jury trial but needed to be scheduled as a non-jury trial. (See
Defendant's Exhibit No. 5.) There was no indication to the Court that Rule
600 was an issue.
This Court's practice in 2016 was to give priority during trial weeks to
jury trials to best utilize jurors who had been called in to sit for trials. Based
upon the Court's schedule the dates of January 26 and 27, 2017, were
provided to counsel. Both counsel acknowledged the dates and the assistant
district .,attorney indicated that he would verify the date with the affiant. The
next communication this Court received on December 6, 2016, was an inquiry
from the assistant district attorney as to the scheduling order. Since no
confirmation of the affiant's availability had been received, the scheduling
order had not yet been filed. On December 7, 2016, this Court issued a
scheduling order, filed December 8, 2016, scheduling the non-jury trial for
January 26, 2017.
On January 25, 2017, at 3:33 p.m., Defendant filed a Motion to Dismiss
4
pursuant to Rule 600. The motion was heard by the Court on January 26,
2017, at the time originally scheduled for the bench trial. The motion was
denied by the Court. A stipulated bench trial was held on January 30, 2017,
after which Defendant was found guilty of DUI - general impairment and
sentencing. took place the same date. Post-sentence motion was filed by
Defendant on January 31, 2017, requesting that Defendant's sentencing be
stayed pending appeal and bail be set. A'hearing was held on February 16,
2017, at which time the post-sentence motion was granted .
.
On March 10, 2017, Defendant filed a Notice of Appeal. Defendant's
Statement
·,
of Errors Complained Of was filed on March 30, 2017. Defendant.
asserts that this Court erred in finding that the Commonwealth exercised due
diligence in bringing his case to trial.
Discussion:
Defendant's right to a speedy trial is codified in Pennsylvania Rule of
Criminal Procedure 600 (hereinafter "Rule 600"). The Rule sets out, in
relevant part:
(A) Commencement of Trial; Time for Trial
5
(1) For the purpose of this rule, trial shall be deemed
to commence on the date the trial judge calls the case
to trial, or the defendant tenders a plea of guilty or .
nolo contendere.
(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.
Pa. R. Crim. P. 600.
"Due diligence is fact-specific, to be determined case-by-case; it does
not require perfect vigilance and punctilious care, but merely a showing the
Commonwealth has put forth a reasonable effort." Commonwealth v. Sloan,
2013 Pa. Super. 132, 67 A.3d 1249, 1252 (Pa. Super. Ct. 2013) (quoting
Commonwealth v. Bradford, 616 Pa. 122, 136, 46 A.3d 693, 701-02 (2012))
6
(internal quotes omitted).
The triggering event that commences Rule 600 is the filing of a criminal
complaint. Here the complaint was filed on October 24, 2015. The
mechanical run date for the commencement of trial under Rule 600 was
October 23, 2016.
In Defendant's case, some delay occurred at various stages. According
to section (C)(l) of Rule 600, only periods of delay "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."
At time of hearing, Defendant acknowledged only one period of delay:
the preliminary hearing was rescheduled by MDJ Groom from November 18,
2015 to December 14, 2015, as a result of a request by the defense. (Tr. of
1/26/17, p.4.)2 This request resulted in a delay of 26 days. The adjusted run
date would be November 16, 2016.
2
Defendant's l 925(b) Statement is somewhat confusing as it indicates 51 days of delay "at defense request''.
Adjusted run date would then be December 11, 2016.
7
Second, the continuance of Defendant's preliminary hearing on
December 14, 2015, to December 18, 2015 caused a delay of four additional
days. The only evidence presented regarding the reason of this continuance
indicates that the delay was requested by the magisterial district judge. "Delay
by a district justice constitutes 'judicial delay,' and is not excludable time for
purposes of calculating the Rule 600 run date." Commonwealth v. Lynn, 2003
Pa. Super. 11, ,i 10, 815 A.2d 1053, 1057 (Pa. Super. Ct. 2003) (emphasis
added). However, ''judicial delay can support the grant of an extension of the
Rule 600 run date" provided the Commonwealth shows it acted with due
diligen~e in bringing the case to trial. Commonwealth v. Trippett, 2001 PA
Super 260, ,i 18, 932 A.2d 188, 197 (Pa. Super. Ct. 2007); "If the delay
occurred as the result of circumstances beyond the Commonwealth's control
and despite its due diligence, the time is excluded." Comment to Pa. R. Crim.
P. 600; accord, Commonwealth v. Bradford, 616 Pa. 122, 46 A.3d 693 (2012).
This Court finds that the Commonwealth did not fail to act with due diligence
with respect to this delay.
Moving to the issue raised by Defendant regarding the scheduling of his
8
case for trial in July 2016 before Judge Fawcett, Defendant asserts that the
Commonwealth did not exercise due diligence in calling the case to trial on
the afternoon of July 27, 2016. Quite frankly, for the period just prior to the
July 2016 trial term, the perfect storm existed in York County. The Court in
its entirety was short three judges, the criminal bench was short a judge who
was serving active duty in Afghanistan, Birchfield was issued in late June
20163, and new judges were sworn in on July 5, 2016. Attempts were made to
utilize the services of newly appointed Judge Fawcett in the most efficient way
possible by pulling cases from four different judges on the criminal bench and
reassigning them to her. Unfortunately, communication among the clerk of
court's office, district attorney's office, court administration, defense counsel
and the judges' chambers was not the best. Vicky Polychronis testified that
although Defendant and defense counsel appeared on July 27, 2016, at 1:30
p.m. for a bench trial, the Court was not aware the matter had been scheduled.
(Tr. of 1/27/17, pp. 8, 17, 19.) There is no evidence that the
miscommunication was caused or in any way attributable to the district
3 The issuance of the Birchfielddecision alone resulted in a plethora of motions being filed to withdraw guilty
pleas previously entered and the filing of new motions to suppress, all requiring consideration and court time
from the bench.
9
attorney's office.
Finally, Defendant asserts that the Commonwealth failed to exercise due
diligence in getting the bench trial rescheduled. The request to the Court by
email dated October 24, 2016, was within the adjusted run date. The
Commonwealth cannot be faulted for the Court's full calendar or its decision
to reserve trial weeks for jury trials.4 In current calendaring of bench trials,
they are immediately scheduled by this Court at time of pre-trial conference.
However, in Defendant's case, at his pre-trial conference on April 14, 2016,
the matter was listed as a jury trial. Not until October 24, 2016, was this Court
made aware that the matter was to be scheduled as a bench trial. So long as
·.
there has been no misconduct on the part of the Commonwealth in art 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 punish and deter crime.
Commonwealth v. Brown, 875 A.2d 1128, 1133-34 (Pa. Super. 2005). No
evidence was presented that the Commonwealth attempted to evade or delay
Defendant's right to a speedy trial.
4
A matter that has since been revisited by this Court.
10
Based upon this Court's findings, Defendant's right to a speedy trial
pursuant to Rule 600 has not been violated, and therefore his request for
dismissal was properly denied and his appeal should be dismissed.
BY THE COURT,
MARIA MUSTI COOK, .JUDGE
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