Com. v. Footman, J ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES J. FOOTMAN,
Appellant No. 2799 EDA 2013
Appeal from the Judgment of Sentence Entered July 15, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003506-2012
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 27, 2015
Appellant, James J. Footman, appeals nunc pro tunc from the July 15,
2013 judgment of sentence of an aggregate term of 4 to 10 years’
incarceration, followed by four years’ probation, imposed after he was
convicted of robbery, receiving stolen property (RSP), and theft by unlawful
taking. Appellant argues that the trial court abused its discretion by denying
his pretrial motion to dismiss the charges against him based on a violation of
Pa.R.Crim.P. 600. We affirm.
Appellant was arrested and charged with the above-stated offenses
based on a robbery that occurred on October 8, 2011.1 On March 18, 2013,
Appellant filed a motion to dismiss his case based on a violation of Rule 600.
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1
The facts of this case are not pertinent to the issue raised by Appellant on
appeal.
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On May 16, 2013, the trial court held a hearing on that motion and then
denied it. Appellant’s case immediately proceeded to a non-jury trial, at the
conclusion of which the court convicted Appellant of robbery, RSP, and theft.
Appellant was subsequently sentenced to the aggregate term set forth
above. He filed a timely post-sentence motion for reconsideration of his
sentence, which the court denied. Appellant did not file a notice of appeal.
However, on September 6, 2013, Appellant filed a petition under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the
restoration of his direct appeal rights. On September 30, 2013, the PCRA
court granted Appellant’s petition and he filed a nunc pro tunc notice of
appeal on October 1, 2013. He also timely complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Herein, Appellant raises one issue for our review: “Did not the
lower court err in denying [Appellant’s] motion to dismiss pursuant to [Rule]
600 where [Appellant] was tried after the run[]date and the Commonwealth
did not exercise due diligence throughout the case, and the court deemed
the delay ‘de minimis[,’] even though Rule 600 does not contain a ‘de
minimis’ exception?” Appellant’s Brief at 3.
We begin by noting that “[o]ur standard and scope of review in
analyzing a Rule 600 issue are both well-settled.” Commonwealth v.
Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en banc).
In evaluating Rule 600 issues, our standard of review of
a trial court's decision is whether the trial court abused its
discretion. Judicial discretion requires action in conformity
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with law, upon facts and circumstances judicially before
the court, after hearing and due consideration. An abuse of
discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied
or the judgment exercised is manifestly unreasonable, or
the result of partiality, prejudice, bias, or ill will, as shown
by the evidence or the record, discretion is abused.
The proper scope of review ... is limited to the evidence
on the record of the Rule 600 evidentiary hearing, and the
findings of the trial court. An appellate court must view the
facts in the light most favorable to the prevailing party.
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
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. Ramos, 936 A.2d 1097, 1100 (Pa. Super.
2007) (en banc) (quoting Commonwealth v. Hunt, 858 A.2d
1234, 1238 (Pa. Super. 2004) (en banc)).
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Rule 600(A)(2) states that when a complaint is filed against a
defendant who is incarcerated, trial must begin 180 days from
the date on which the complaint was filed.[2] Similarly, Rule
600(A)(3) requires that trial commence for a defendant at liberty
on bail within 365 days of the filing of the written complaint. The
rule further provides that certain periods are excluded from Rule
600 calculation. Specifically, the rule delineates in pertinent
part:
(C) In determining the period for commencement of trial,
there shall be excluded therefrom:
(1) the period of time between the filing of the
written complaint and the defendant's arrest,
provided that the defendant could not be
apprehended because his or her whereabouts were
unknown and could not be determined by due
diligence;
(2) any period of time for which the defendant
expressly waives Rule 600;
(3) such period of delay at any stage of the
proceedings as results from:
(a) the unavailability of the defendant or the
defendant's attorney;
(b) any continuance granted at the request of
the defendant or the defendant's attorney.
Pa.R.Crim.P. 600(C).
Peterson, 19 A.3d at 1134-1135 (footnote omitted).
This Court has also recently reiterated that:
To determine whether dismissal is required under Rule
600, a court must first calculate the “mechanical run date,”
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2
We note that a new version of Rule 600 was adopted on October 1, 2012,
and became effective on July 1, 2013. As Appellant’s Rule 600 motion was
filed and decided before the effective date of the new version of the rule, we
will analyze his claim under the prior version of Rule 600.
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which is 365 days after the complaint was filed. Rule 600(C)
addresses situations where time can be excluded from the
computation of the deadline. Case law also provides that a court
must account for any “excludable time” and “excusable delay.”
Excludable time is delay that is attributable to the defendant or
his counsel. Excusable delay is delay that occurs as a result of
circumstances beyond the Commonwealth's control and despite
its due diligence.
To be clear, a violation of Rule 600 does not automatically
entitle a defendant to a discharge. Indeed, 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.” In
other words, the only occasion requiring dismissal is when the
Commonwealth fails to commence trial within 365 days of the
filing of the written complaint, taking into account all excludable
time and excusable delay. There is no statutory or case law
authorizing the discharge of a defendant who has not been
brought to trial within the timing requirements of Rule
600(A)(2).
Commonwealth v. Goldman, 70 A.3d 874, 879-880 (Pa. Super. 2013).
Here, Appellant adopts the statement of pertinent dates set forth by
the trial court in its opinion, which we need not reproduce for purposes of
this appeal. See Trial Court Opinion (TCO), 7/16/14, at 1-2; Appellant’s
Brief at 11-12. Instead, we need only note that the parties, and the court,
agree that the Commonwealth was required to try Appellant within 365 days
of the October 13, 2011 filing of the criminal complaint. Therefore, the
‘mechanical run date’ was October 12, 2012.3 Appellant concedes that there
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3
Appellant incorrectly concludes that the mechanical run date was October
13, 2012. However, we agree with the trial court and Commonwealth that
adding 365 days to October 13, 2011, results in a mechanical run date of
October 12, 2012. See TCO at 4; Commonwealth’s Brief at 10.
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were 207 days of ‘excludable time’ for Rule 600 purposes. Appellant’s Brief
at 13-14. Thus, according to Appellant’s calculations, the adjusted run date
was May 7, 2013, making his trial on May 16, 2013, “[nine] days late.” Id.
at 14. Consequently, Appellant claims that Rule 600 was violated and the
court should have granted his pretrial motion to dismiss the charges against
him.
The trial court, however, concluded that there was no violation of Rule
600. By the court’s calculations, there were 286 days of
excludable/excusable time, making the adjusted run date July 25, 2013.
See TCO at 4. In reaching this decision, the trial court excluded, inter alia,
the time between September 24, 2012 and November 5, 2012. The court
explained that on September 24, 2012, trial was scheduled to begin and
both parties were prepared to proceed, “but the court was conducting
unrelated trials.” Id. Accordingly, Appellant’s trial was rescheduled for
November 5, 2012. The court reasoned that this “judicial delay” should not
be charged to the Commonwealth for Rule 600 purposes. Id.
In response, Appellant argues that the delay from September 24,
2012, to November 5, 2012, was not excusable because the Commonwealth
failed to act with due diligence. Appellant emphasizes that the
Commonwealth did not “attempt to get the case re-listed to another
courtroom[,] attempt to get an earlier date[,] or make sure that the date
that was given was the earliest possible date….” Appellant’s Brief at 15. In
other words, Appellant argues that the Commonwealth was required to
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attempt to have the trial proceed before another judge, and its failure to do
so amounted to a lack of due diligence. In support, Appellant relies on
Commonwealth v. Hawk, 597 A.2d 1141 (Pa. 1991), which he interprets
as holding that the Commonwealth must take “affirmative steps to bring a
case to trial[,]” such as looking for another courtroom in which to try the
case if the assigned judge is unavailable. Appellant’s Brief at 17.
Appellant’s reliance on Hawk is unconvincing. Indeed, this Court has
explicitly stated that Hawk is “not clear” regarding “[t]he extent to which
the Commonwealth must look for other available courtrooms….”
Commonwealth v. Anderson, 959 A.2d 1248, 1250 (Pa. Super. 2008). In
Anderson, we noted that in Commonwealth v. Smith, 569 A.2d 337 (Pa.
1990), “our Supreme Court found no duty for the Commonwealth to seek an
alternative court” when trial was delayed because of “congestion in the trial
judge’s calendar.” Anderson, 959 A.2d at 1250. We also emphasized in
Anderson that “Hawk did not claim to overrule Smith, merely distinguish
it.” Id. Therefore, it is not clear that Hawk imposes the affirmative duty on
the Commonwealth to seek out another courtroom, as Appellant claims.4
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4
Moreover, we agree with the Commonwealth that the facts of Hawk are
distinguishable from the present case. As the Commonwealth explains, in
Hawk,
the trial judge was sick for a month and then went on vacation
for five weeks after recuperating from the illness. During this
prolonged absence, the Commonwealth took no action to have
the case listed for trial before another judge. Under those
(Footnote Continued Next Page)
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What is clear is that this Court has repeatedly cited Hawk for the
proposition that “the Commonwealth should be held to the requirement that
it exercise due diligence at all times during the pendency of a case.”
Commonwealth v. Kearse, 890 A.2d 388, 393 (Pa. Super. 2005) (quoting
Hawk, 597 A.2d at 1145).5
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(Footnote Continued)
unique and extreme circumstances, the Supreme Court rejected
the Commonwealth’s attempt to justify the delay based upon the
trial judge’s crowded docket. The Court observed that “[e]ven if
the Commonwealth was found to be duly diligent, the
Commonwealth failed to prove judicial delay.” Hawk, … 597
A.2d at 1145. Thus, the Court in Hawk suggested only that the
Commonwealth would have some duty to attempt to schedule a
case before a different judge when the assigned judge is
unavailable for a lengthy period of time for reasons unrelated to
a crowded docket, such as illness. Hawk simply did not hold
that reassignment to another judge is mandated whenever,
because of a crowded docket, a case cannot be heard within the
time required by Rule 600. In contrast to Hawk, the delay
which [Appellant] contends violated Rule 600 here was due to
the court’s congested docket…, and not an absence of the
assigned judge because of illness or vacation.
Commonwealth’s Brief at 19-20 (emphasis in original; one internal citation
omitted).
5
See also Commonwealth v. Claffey, 80 A.3d 780, 786 (Pa. Super.
2013) (citing Hawk in stating that “[t]he Commonwealth’s duty to be
diligent exists throughout all stages of a case”); Commonwealth v.
Bradford, 2 A.3d 628, 632 (Pa. Super. 2010) (relying on Hawk in stating
that “the Commonwealth’s duty to be diligent exists throughout all stages of
a case”); Commonwealth v. Preston, 904 A.2d 1, 13 n.5 (Pa. Super.
2006) (stating that in Hawk, “our Supreme Court ruled that the
Commonwealth must demonstrate that it exercised due diligence at all times
during the pendency of a case”).
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“Due diligence is a fact-specific concept that must be determined
on a case-by-case basis. Due diligence does not require perfect
vigilance and punctilious care, but rather a showing by the
Commonwealth that a reasonable effort has been put forth.”
Due diligence includes, among other things, 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.
Ramos, 936 A.2d at 1102 (citations omitted; emphasis in original).
Moreover, “[i]t is long-established that judicial delay may serve as a basis
for extending the period of time within which the Commonwealth may
commence trial so long as the prosecutor was prepared to commence trial
prior to the expiration of the mandatory period but the court, because of
scheduling difficulties or ‘the like,’ was unavailable.” Preston, 904 A.2d at14 (citing Commonwealth v. Malgieri, 889 A.2d 604, 607 (Pa. Super.
2005)).
In this case, it is undisputed that the Commonwealth was prepared to
proceed to trial on September 24, 2012, prior to the expiration of the
mechanical run date on October 12, 2012. The trial did not commence due
to a court scheduling conflict, and through no fault of the Commonwealth.
Under these circumstances, we ascertain no abuse of discretion in the trial
court’s considering as ‘excusable’ the 42-day delay between September 24,
2012, and November 5, 2012. Accordingly, adding these 42 days to the 207
excludable days conceded by Appellant results in an adjusted run date of
June 18, 2013, making Appellant’s trial on May 16, 2013, within the time-
frame proscribed by Rule 600. We also point out that on seven other
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scheduled trial dates after September 24, 2012, the Commonwealth was
ready to proceed but the case was continued at either Appellant’s request or
because the court was presiding in another case. See Appellant’s Brief at
11-12; TCO at 1-2. This record convinces us that the Commonwealth
exercised due diligence at all times during the pendency of Appellant’s case.
Hawk, 597 A.2d at 1145. Therefore, the trial court did not abuse its
discretion in denying Appellant’s motion to dismiss.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2015
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