Com. v. Wendel, J. , 165 A.3d 952 ( 2017 )

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2017 PA Super 178COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA A. WENDEL :
:
Appellant : No. 1838 WDA 2016
Appeal from the Judgment of Sentence June 27, 2016
In the Court of Common Pleas of Elk County
Criminal Division at No(s): CP-24-CR-0000097-2015
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JUNE 07, 2017
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Elk County following Appellant’s conviction on the
charges of simple assault and criminal mischief.1 Appellant contends the
trial court abused its discretion in denying his motion to dismiss pursuant to
Pennsylvania Rule of Criminal Procedure 600. After a careful review, we
affirm.
The relevant facts and procedural history are as follows: On January
30, 2015, Appellant assaulted the nine-year-old victim, and on February 5,
2015, Police Officer Jason A. Miller filed a criminal complaint against
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2701(a)(1) and 3304(a)(1), respectively.
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Appellant in the Office of Magisterial District Judge Mark S. Jacob. A
preliminary hearing was scheduled for March 10, 2015; however, by letter
dated February 19, 2015, Officer Miller informed the magisterial district
judge that he was “scheduled to be at work related training in Harrisburg on
March 10, 2015.” See Letter, dated 2/19/15. Thus, Officer Miller asked that
Appellant’s preliminary hearing be continued.
The magisterial district judge rescheduled the preliminary hearing to
March 17, 2015, noting such was necessary due to “Continuance requested
by Jason A. Miller, Reason: Prosecution Unavailable-Police[.]” See
Magisterial District Judge’s Rescheduling Notice, dated 2/20/15. On March
17, 2015, a preliminary hearing was held, and all charges were bound over
to the Court of Common Pleas.
On March 31, 2015, the Commonwealth filed a criminal Information
against Appellant, and on April 6, 2015, Appellant waived his formal
arraignment. On April 9, 2015, Appellant requested a Bill of Particulars, and
after the Commonwealth sent a letter indicating its refusal, Appellant filed a
motion to compel answers to Bill of Particulars on April 23, 2015. The trial
court held a hearing on the motion, and on June 22, 2015, the trial court
filed an order granting Appellant’s motion and directing the Commonwealth’s
response by June 30, 2015.
On November 18, 2015, the Commonwealth filed a praecipe to list
Appellant’s case for a jury trial, and accordingly, Appellant’s case was listed
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by the court for jury call on December 7, 2015, with voir dire to begin on
December 14, 2015.
In the meantime, on November 23, 2015, the Commonwealth
answered Appellant’s Bill of Particulars, and on November 24, 2015,
Appellant filed a motion for relief relative to the Commonwealth’s late filing
of its answers. On December 7, 2015, the trial court held a hearing on
Appellant’s motion, and following a hearing, by order dated December 7,
2015, the trial court granted Appellant relief, indicating that jury call was
continued until February 1, 2016, with voir dire to begin on February 8,
2016. The trial court specifically noted “this time [is] chargeable to the
Commonwealth for purposes of Pa.R.Crim.P. 600.” Trial Court Order, dated
12/7/15.
On February 8, 2016, Appellant filed a motion to dismiss pursuant to
Pa.R.Crim.P. 600, and on that same date, jury selection occurred.
Subsequently, on March 28, 2016, the trial court held a hearing on
Appellant’s motion to dismiss.
At the hearing, on direct-examination, Officer Miller confirmed that he
personally requested a continuance of Appellant’s March 10, 2016,
preliminary hearing. N.T., 3/28/16, at 5-6. He testified that he made the
request because he “was scheduled to go to [ ] leadership training in
Harrisburg, Pennsylvania, on March 10, 11[,] and 12.” Id. at 6. He noted
the training was scheduled well in advance of March 10, 2016, and it was for
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purposes of his employment. Id. Officer Miller completed the training and
received a certificate for “20 hours of training on leadership and law
enforcement.” Id. at 7.
On cross-examination, Officer Miller indicated that he did not have
communication with the district attorney’s office or otherwise discuss with
that office his need for a continuance of the preliminary hearing. Id. at 17.
Rather, “as a matter of routine course[,]” he wrote directly to the
magisterial district judge in order to get a continuance. Id.
By order and opinion filed on April 1, 2016, the trial court denied
Appellant’s motion to dismiss pursuant to Pa.R.Crim.P. 600, and Appellant
proceeded to a jury trial on April 7, 2016, following which he was convicted
by the jury of simple assault. The trial court found Appellant guilty of the
summary offense of criminal mischief.
On June 27, 2016, Appellant was sentenced to an aggregate of thirty
months’ probation, with the first 45 days being served as house arrest
without electronic monitoring. Appellant filed a timely post-sentence
motion, which the trial court denied on November 4, 2016. This timely
appeal followed, and all Pa.R.A.P. 1925 requirements have been met.
On appeal, Appellant’s sole claim is the trial court abused its discretion
when it denied Appellant’s motion to dismiss for the Commonwealth’s failure
to bring the matter to trial in a speedy fashion as required by Rule 600 of
the Pennsylvania Rules of Criminal Procedure. Specifically, he alleges that
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the Commonwealth was not duly diligent as it relates to the delay attributed
to Officer Miller’s request for a continuance of Appellant’s preliminary
hearing.
We review Appellant's Rule 600 argument according to the following
principles:
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.
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
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individual accused, but the collective right of the community to
vigorous law enforcement as well.
Commonwealth v. Armstrong, 74 A.3d 228, 234–35 (Pa.Super. 2013)
(quotation omitted).
Rule 600 provides in pertinent part: “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). The Rule further states:
(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(C)(1).
To summarize, the courts of this Commonwealth employ
three steps...in determining whether Rule 600 requires dismissal
of charges against a defendant. First, Rule 600(A) provides the
mechanical run date. Second, we determine whether any
excludable time exists pursuant to Rule 600(C). We add the
amount of excludable time, if any, to the mechanical run date to
arrive at an adjusted run date.
If the trial takes place after the adjusted run date, we
apply the due diligence analysis set forth in Rule 600([D]). As
we have explained, Rule 600[ ] encompasses a wide variety of
circumstances under which a period of delay was outside the
control of the Commonwealth and not the result of the
Commonwealth’s lack of diligence. Any such period of delay
results in an extension of the run date. Addition of any Rule
600[ ] extensions to the adjusted run date produces the final
Rule 600 run date. If the Commonwealth does not bring the
defendant to trial on or before the final run date, the trial court
must dismiss the charges.
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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.
Armstrong, 71 A.3d at 236 (quotation marks and quotations omitted).
In the case sub judice, we must first determine the mechanical run
date under Rule 600. “As the text of Rule 600(A) makes clear, the
mechanical run date comes 365 days after the date the complaint is filed.”
Commonwealth v. Ramos, 936 A.2d 1097, 1101 (Pa.Super. 2007) (en
banc). Here, as the parties agree and the trial court found, the complaint
was filed on February 5, 2015, and the mechanical run date was February 5,
2016.
However, as the trial court determined, Appellant’s trial did not
commence until the parties were present and voir dire occurred on February
8, 2016, which was three days after the mechanical run date. See
Pa.R.Crim.P. 600 cmt. (“A trial commences when the trial judge determines
that the parties are present and directs them to proceed to voir dire or to
opening argument, or to the hearing of any motions that had been reserved
for the time of trial, or to the taking of testimony, or to some other such first
step in the trial.”) (citations omitted)); Commonwealth v. Brock, 619 Pa.
278, 61 A.3d 1015, 1020-21 (2013) (“It is not intended that preliminary
calendar calls should constitute commencement of a trial.”) (quotation
omitted)); Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355-7-
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(1988) (holding that, even where the case has been called for trial, the trial
is not deemed to have commenced for speedy trial purposes until the jury is
empaneled, voir dire has occurred, or some other substantial step of trial
begins).
This does not end our inquiry, however, as the trial court concluded
that the seven-day delay from March 10, 2015, to March 17, 2015, which
was attributed to Officer Miller’s unavailability and request for a continuance
of Appellant’s preliminary hearing, constituted “excusable delay,” thus
resulting in an adjusted run date of February 12, 2016. See
Commonwealth v. Preston, 904 A.2d 1 (Pa.Super. 2006) (en banc)
(explaining that “excusable delay” occurs as a result of circumstances
beyond the Commonwealth’s control despite its due diligence). We agree.
It is well-settled that “[t]he Commonwealth cannot be held to be
acting without due diligence when a witness becomes unavailable due to
circumstances beyond its control.” Commonwealth v. Hyland, 875 A.2d
1175, 1191 (Pa.Super. 2005) (citation to trial court opinion omitted). This
legal precept applies to police officers who are necessary witnesses. See
Commonwealth v. Staten, 950 A.2d 1006 (Pa.Super. 2008) (where an
arresting police officer had been assigned to serve warrants on the date
scheduled for trial, and the Commonwealth requested a continuance, the
delay attributed thereto was “excusable delay”); Hyland, supra (where
trooper, who was affiant and lead investigator, was deployed to Iraq, the
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time attributed thereto was “excusable delay” since it was beyond the
control of the Commonwealth); Commonwealth v. Brawner, 553 A.2d 458(Pa.Super. 1989) (where police officer’s unavailability due to vacation was
beyond the Commonwealth’s control, the extension of trial date was
“excusable time”).
Here, Officer Miller, who was the affiant and lead investigator, was
unavailable for March 10, 2015, due to previously scheduled training related
to his law enforcement employment. The officer’s unavailability was beyond
the Commonwealth’s control, and thus, we agree with the trial court that the
period of time attributed thereto constitutes “excusable delay.” Thus, as the
trial court held, Appellant’s trial commenced prior to the adjusted run date
such that there was no Pa.R.Crim.P. 600 violation. See Preston, supra(discussing “excusable delay” and “adjusted run date”).
We specifically find unavailing Appellant’s argument that Officer
Miller’s unavailability does not constitute “excusable delay” since the officer,
as opposed to a member of the district attorney’s office, requested the
continuance without consultation with the district attorney’s office.
Appellant reasons that the Commonwealth could not have exercised “due
diligence” if it was not even aware that the continuance was sought and
granted. See Appellant’s Brief at 9-12. Further, citing to Pa.R.Crim.P. 542,
he contends that only a “party” may request a continuance and Officer Miller
was not a “party.” In this vein, he contends the district attorney’s office, as
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a party to this matter, should have in place policies and procedures so that,
if a continuance is required, a member of the district attorney’s office makes
the request at the preliminary hearing stage.
Initially, we note that Pennsylvania Rule of Criminal Procedure 542
provides, in relevant part, the following:
Rule 542. Preliminary Hearing; Continuances
(A) The attorney for the Commonwealth may appear at a
preliminary hearing[.]
***
(B) When no attorney appears on behalf of the Commonwealth
at a preliminary hearing, the affiant may be permitted to ask
question of any witness who testifies.
***
(G) Continuances
(1) The issuing authority may, for cause shown, grant a
continuance and shall note on the transcript every continuance
together with:
(a) the grounds for granting each continuance;
(b) the identity of the party requesting such
continuance; and
(c) the new date, time, and place for the
preliminary hearing, and the reasons that the
particular date was chosen.
Pa.R.Crim.P. 542 (emphasis in original).
Further, the Comment to Rule 542 relevantly provides:
As the judicial officer presiding at the preliminary hearing, the
issuing authority controls the conduct of the preliminary hearing
generally. When an attorney appears on behalf of the
Commonwealth, the prosecution of the case is under the control
of that attorney. When no attorney appears at the preliminary
hearing on behalf of the Commonwealth, the issuing authority
may ask questions of any witness who testifies, and the affiant
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may request the issuing authority to ask specific questions. In
the appropriate circumstances, the issuing authority may also
permit the affiant to question Commonwealth witnesses, cross-
examine defense witnesses, and make recommendations about
the case to the issuing authority.
Pa.R.Crim.P. 542 cmt.
In interpreting Pa.R.Crim.P. 542 and its Comment, and rejecting
Appellant’s claims, the trial court held as follows:
[Appellant] has promoted that the continuance of the
preliminary hearing requested by Officer Miller and not by the
attorney for the Commonwealth cannot be considered “excusable
time” in calculating the adjusted run date for a Rule 600 motion.
[Appellant] has made reference to Pa.R.Crim.P. 542(G) which
directs that a magisterial district judge is to identify the “party”
requesting the continuance. [Appellant] asserts that since the
Commonwealth and [Appellant] are the only parties to this case,
only the attorney for the Commonwealth should be permitted to
request a continuance of a scheduled preliminary hearing.
[Appellant] has provided no authority that supports this position.
There is no requirement that the attorney for the
Commonwealth appear at a preliminary hearing, with
Pa.R.Crim.P. 542(A) including the non-compulsory “may” in
addressing the appearance of the Commonwealth’s attorney.
Pa.R.Crim.P. 542(B) affords the affiant the ability to ask
questions of a witness who testifies at a preliminary hearing
when no attorney for the Commonwealth is present.
Furthermore, the Comment to Pa.R.Crim.P. 542 provides “in the
appropriate circumstances, the issuing authority may also permit
the affiant to question Commonwealth witnesses, cross-examine
defense witnesses, and make recommendations about the case
to the issuing authority.” [Thus, in]...the reading of
Pa.R.Crim.P. 542[,]...the affiant is...the Commonwealth
representative in preliminary hearings when an attorney for the
Commonwealth is not present....Th[e] court finds that
[Appellant’s] contention that the Commonwealth’s attorney is
the only representative of the Commonwealth as a party [in
these circumstances] is without merit[.]
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Trial Court Opinion, filed 11/4/16, at 1-3. We find no abuse of discretion in
this regard. See Pa.R.Crim.P. 542 (Preliminary Hearings; Continuances).
It is well-settled that “[t]he Rules of Criminal Procedure are to ‘be
construed in consonance with the rules of statutory construction[,]’
Pa.R.Crim.P. 101(C), which requires us to interpret the provisions in accord
with the plain meaning of their terms.” Commonwealth v. Allen, 630 Pa.
577, 107 A.3d 709, 716 (2014) (citation omitted). In the case sub judice,
there is no dispute that Officer Miller was the affiant, 2 and accordingly,
pursuant to the plain and express language of Rule 542, in the absence of a
Commonwealth attorney being present at the preliminary hearing, he was
permitted to function as such in a role as limited by the Rule. Consequently,
since the Rule provides that Officer Miller was permitted to function as a
Commonwealth representative for purposes of questioning witnesses, and if
needed, make recommendations to the issuing authority, it would be absurd
to conclude Officer Miller was not a “party” for purposes of requesting a
continuance. Accordingly, the trial court properly rejected Appellant’s claim.
See Commonwealth v. McCoy, 599 Pa. 599, 962 A.2d 1160, 1168 (2009)
(“When there is an interpretation available that gives effect to all of the
statute’s phrases and does not lead to an absurd result, that interpretation
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2
Pa.R.Crim.P. 103, Definitions, provides the following: “Affiant is any
responsible person capable of taking an oath who signs, swears to, affirms,
or, when permitted by these rules, verifies a complaint and appreciates the
nature and quality of that person’s act.” (bold omitted).
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must prevail.”); Lower Merion Twp. v. Schenk, 372 A.2d 934 (Pa.Super.
1977) (en banc) (holding the Rules of Criminal Procedure are intended by
our Supreme Court to posses a similar dignity as that accorded to statutes
which are entitled to presumption that the Legislature did not intend a result
that is absurd).
Finally, with regard to his Rule 600 claim, we remind Appellant that:
Most significantly, both Rule [600] and the cases in which we
have applied it proceed from the premise that 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. Thus, we do not
apply the Rule mechanically nor will we affirm its application
where the trial court’s construction of it fails to acknowledge the
policies it serves. The Commonwealth’s stewardship therefore
must be judged by what was done...rather than by what was not
done.
Commonwealth v. Selenski, 919 A.2d 229, 232 (Pa.Super. 2007)
(quotation marks, quotations, and citations omitted).
For all of the aforementioned reasons, we conclude that, in considering
the seven-day delay caused by Officer Miller’s unavailability, the trial court
did not err in concluding that such delay was “excusable,” and, therefore,
the adjusted run date pertinent to a Rule 600 analysis was February 12,
2016. Consequently, since Appellant’s trial commenced prior to the
expiration thereof, the trial court did not err in denying Appellant’s motion to
dismiss pursuant to Rule 600, and thus, we affirm.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2017
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