Com. v. Bracco, D. ( 2021 )

J-S32022-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ALLEN BRACCO :
:
Appellant : No. 226 WDA 2021
Appeal from the Judgment of Sentence Entered January 20, 2021
In the Court of Common Pleas of Erie County
Criminal Division at CP-25-CR-0001985-2019
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: DECEMBER 3, 2021
David Allen Bracco (Appellant) appeals from the judgment of sentence
imposed after a jury found him guilty of two counts of criminal trespass and
one count each of robbery of motor vehicle, theft by unlawful taking, criminal
mischief, robbery, simple assault, recklessly endangering another person,
unauthorized use of automobiles and other vehicles, accidents involving
damage to attended vehicle or property, and related summary offenses.1
After careful review, we affirm.
On August 16, 2019, the Commonwealth charged Appellant with
multiple offenses arising from a two-day crime spree, from June 6 - 7, 2019,
which ended with Appellant’s apprehension and arrest. Appellant was
immediately incarcerated in the Erie County Prison. On October 9, 2019,
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1 18 Pa.C.S.A. §§ 3503(a)(1)(i), 3702(a), 3921(a), 3304(a)(5),
3701(a)(1)(v), 2701(a)(1), 2705, 3928(a), and 75 Pa.C.S.A. § 3743(a).
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Appellant filed a motion for a psychiatric evaluation of competency and mental
state, which the trial court granted and ordered to be completed within 45
days. However, Appellant never followed through with the evaluation and the
trial court listed the case for trial during the February 2020 term.
On January 29, 2020, Appellant filed a motion for continuance,
requesting additional time to negotiate a plea agreement, or, if no agreement
could be reached, prepare for trial. The trial court granted the motion and re-
listed Appellant’s case for the April 2020 term. However, the advent of the
COVID-19 pandemic caused Appellant’s trial to be postponed.2
On June 26, 2020, Appellant filed a second motion for psychiatric
evaluation of competency. The trial court granted the motion and directed
the evaluator to complete the report within 60 days. On August 3, 2020, the
evaluating psychiatrist deemed Appellant competent to stand trial.
On September 21, 2020, Appellant filed a motion for release on nominal
bond. Appellant asserted that, after subtracting all excludable time, he had
been incarcerated “for well over 200 days,” and in excess of the 180-day limit
proscribed by Pa.R.Crim.P. 600(B). Motion for Release on Nominal Bail,
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2 The Pennsylvania Supreme Court declared a judicial emergency on March
16, 2020. The next day, the Honorable John J. Trucilla, then serving as
President Judge of the Erie County Court of Common Pleas, declared a county
emergency. Judge Trucilla entered an order suspending the operation of
Pa.R.Crim.P. 600, and providing that “delay is not chargeable to the
Commonwealth or the Defendants.” Emergency Judicial Order, 3/17/20, at
¶1. Judge Trucilla’s emergency order expired on August 1, 2020.
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9/21/20, at ¶8. The Commonwealth filed a response opposing Appellant’s
release, citing the seriousness of the charges, threats made by Appellant to
law enforcement officers, and additional crimes committed by Appellant while
incarcerated. Motion to Revoke Bond and Response to Defendant’s Motion for
Release on Nominal Bond, 9/23/20. That same day, the trial court entered an
order scheduling Appellant for trial on October 14, 2020.
On October 12, 2020, the parties appeared for jury selection and the
trial court dismissed Appellant’s motion for release on nominal bond as moot.
On October 14, 2020, a jury convicted Appellant of the aforementioned
offenses. The trial court sentenced Appellant to an aggregate 105 to 210
months of incarceration plus fines on January 20, 2021, with Appellant to
receive credit for 582 days of time served. On February 3, 2021, the
Commonwealth filed a motion to modify sentence, which the court denied on
February 9, 2021. On February 18, 2021, Appellant filed a motion to amend
credit for time served, seeking additional credit for time served from the date
of his arrest to the date of his preliminary hearing. The trial court granted
Appellant’s motion the same day. Appellant filed this timely appeal. 3
Appellant presents a single issue for review:
DID THE TRIAL COURT ERR IN DISMISSING APPELLANT’S
REQUEST FOR RULE 600 RELIEF?
Appellant’s Brief at 9.
Our standard and scope of review are well settled:
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3 Appellant and the trial court complied with Pa.R.A.P. 1925.
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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 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.
Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa. Super. 2018) (citation
and emphasis omitted).
Appellant argues the trial court erred by denying his request for release
on nominal bail pursuant to Pa.R.Crim.P. 600(D)(2), which provides in
relevant part:
[W]hen a defendant is held in pretrial incarceration beyond the
time set forth in paragraph (B), at any time before trial, the
defendant’s attorney, or the defendant if unrepresented, may file
a written motion requesting that the defendant be released
immediately on nominal bail subject to any nonmonetary
conditions of bail imposed by the court as permitted by law. A
copy of the motion shall be served on the attorney for the
Commonwealth concurrently with filing. The judge shall conduct
a hearing on the motion.
Pa.R.Crim.P. 600(D)(2). As it relates to this case, Rule 600(B)(1) states:
“[N]o defendant shall be held in pretrial incarceration in excess of ... 180
days from the date on which the criminal complaint is filed.” Pa.R.Crim.P.
600(B)(1).
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“Generally, a case will be dismissed if at any stage of the judicial process
it is rendered moot.” Commonwealth v. Sloan, 907 A.2d 460, 465 (Pa.
2006) (holding that challenge to denial of request for release on nominal bail
is moot where defendant is no longer in pre-trial detention). A defendant is
no longer in pre-trial detention when he is serving a sentence following
conviction. Id. at 464–65. A Rule 600(B) claim regarding pre-trial release on
nominal bail is “technically moot” once the defendant is serving a sentence
following conviction. Id.Appellant did not immediately appeal the court’s pre-trial denial of his
motion for release on nominal bail after 180 days in custody pursuant to
Pa.R.Crim.P. 600(B). See Pa.R.A.P. 1762(b)(2) (“Release in Criminal
Matters”); Pa.R.A.P. 1516(a) (regarding petitions for judicial review of
governmental determinations, including bail decisions in criminal matters as
authorized in Pa.R.A.P. 1762). In addition, Appellant is no longer incarcerated
in pre-trial detention; he is now serving a sentence following conviction. Thus,
Appellant’s claim is moot. Sloan, supra at 468. As such, we decline to
discuss the merits of his claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2021
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