Com. v. Amison, D. ( 2023 )

J-A11035-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMON DUANE AMISON :
:
Appellant : No. 631 WDA 2022
Appeal from the Judgment of Sentence Entered April 25, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000713-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMON DUANE AMISON :
:
Appellant : No. 632 WDA 2022
Appeal from the Judgment of Sentence Entered April 25, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003003-2019
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: May 15, 2023
Damon Duane Amison (Amison) appeals from the judgment of sentence
imposed in the Court of Common Pleas of Erie County (trial court) in these
consolidated cases after his conviction of persons not to possess firearms,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A11035-23
possession with intent to deliver (PWID), and related charges. He argues that
the evidence was insufficient because it failed to establish that he possessed
a “firearm” as defined by applicable law making the PWID charge
inappropriate. He also contends that the trial court erred in denying his Rule
600 motion.1 We affirm.
We take the pertinent facts and procedural history from the trial court’s
July 14, 2022 opinion and our independent review of the record.
I.
The convictions in this matter relate to events that occurred on August
5, 2019, at and near Moe’s One Stop convenience store located at 24th and
Parade Streets in Erie, Pennsylvania. The trial court explains:
The charges in the Information filed on December 11, 2019
at No. 3003 of 2019 arose from [Amison]’s activities of August 5,
2019 in the 2400 block of Parade Street, Erie, Pennsylvania when
Appellant fled from police who were familiar with him and who had
approached him because there was an outstanding warrant for his
arrest. When Appellant fled from the store … he ignored police
orders to stop; and instead ran from the police into congested
traffic in the 2400 block of Parade Street, causing several vehicles
to abruptly stop. After a struggle with the police which involved
deployment of a Taser, [Amison] was arrested. [He] was charged
with weapons and flight-related offenses as follows: Count One-
Persons Not to Possess, Use, Manufacture, Control, Sell or
Transfer Firearms; Count Two-Firearms Not to be Carried Without
a License; Count Three-Flight to Avoid Apprehension, Trial or
Punishment; Count Four-Recklessly Endangering Another Person;
____________________________________________
1Pennsylvania Rule of Criminal Procedure 600(A)(2) provides: (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. Pa.R.Crim.P. 600(A)(2).
-2-
J-A11035-23
Count Five-Resisting Arrest or Other Law Enforcement; and Count
Six-Disorderly Conduct.[a]
18 Pa.C.S.A. §§ 6105(a)(1); 6106(a)(1); 5126(a); 2705;
[a]
5104; and 5503(a)(4), respectively.
According to the Criminal Complaint of August 5, 2019
which led to the charges at No. 3003 of 2019, review of store
surveillance video at Moe’s One Stop depicted [that Amison]
possessed a handgun at the time. Further review of the store
surveillance video of August 5, 2019 also depicted [that he]
possessed a clear plastic bag containing a white substance which
[Amison] discarded and/or concealed inside Moe’s before he fled
from the police. Laboratory analysis revealed the white substance
was 14.53 grams of heroin and fentanyl.
On May 14, 2020, the drug charges at Docket No. 713 of
2020 ensued: Count One, Possession With Intent to Deliver
(heroin and/or fentanyl) [(PWID)]; Count Two, Possession (heroin
and/or fentanyl); Count Three, Possession of Drug Paraphernalia;
and Count Four, Tampering With or Fabricating Physical Evidence.
…[b]
[b]35 Pa.C.S.A. §§ 780-113(a)(30), 780-113(a)(16) and
780-113(a)(31)(i), [], and 18 Pa.C.S.A. §4910(a)(1)[,
respectively].
(Trial Court Opinion, 7/14/22, at 1-2).
On January 14, 2020, Amison filed a pro se omnibus pretrial motion that
included, in pertinent part, a motion for writ of habeas corpus and/or motion
to quash/dismiss the firearms charges. (See Pro Se Omnibus Pretrial Motion,
1/14/20, at 3-5).2 On August 31, 2020, Amison filed a motion for continuance
____________________________________________
2 Our review of the docket reflects that Amison was represented by privately
retained counsel, Attorney Eric Vaughn Hackwelder, at the commencement of
the litigation. It is not clear when Attorney Hackwelder withdrew his
-3-
J-A11035-23
of trial with a waiver of his prompt and speedy trial rights and a motion for
discovery seeking police dispatch records. The trial court granted both
motions. On November 30, 2020, Amison filed a counseled omnibus pretrial
motion for relief/exhibits seeking the production of discovery previously
ordered and the suppression of cell phone evidence. After the Commonwealth
filed a brief, the court denied the motion. On July 19, 2021, Amison filed trial
motions and exhibits again raising, in pertinent part, the unresolved issue of
the firearms charges. The court held a hearing on the motion in which found
that the evidence was sufficient to make it a jury question and that it should
be raised in a motion for judgment of acquittal after the Commonwealth
presented its evidence. (See N.T. Hearing, 10/20/21, at 10-13). On
December 22, 2021, Amison filed a renewed motion to dismiss the firearms
counts, which the trial court again denied.
On March 18, 2022, three days before trial, Amison filed a motion to
dismiss on Rule 600 grounds. On March 21, 2022, immediately before voir
dire, the parties engaged in a contentious argument on the Rule 600 motion
about who bore the responsibility for the delays. The Commonwealth argued
that they were caused in large part by Amison’s unavailability due to the
numerous pre-trial motions he repeatedly represented had to be decided
____________________________________________
representation, but Attorney Elliot Jay Segal (also privately retained) entered
his appearance on behalf of Amison on January 29, 2020.
-4-
J-A11035-23
before he could proceed. Amison relied on Commonwealth v. Hill, 736 A.2d
579 (Pa. 1999), for his argument that filing pre-trial motions did not
automatically make him unavailable for Rule 600 purposes since they did not
delay the start of trial. (See N.T., 3/21/22, at 11-26). Ultimately, the trial
court proposed deciding the issue based on the Rule 600 motion and the
Commonwealth’s brief. Amison’s counsel did not object to this suggestion.
(See id. at 26). The same day, the trial court issued an order denying the
motion. (See Order, 3/21/22).
II.
At trial, Amison testified that he was a drug addict and not a dealer. He
also asserted that the gun shown in the surveillance video was merely a BB
gun.
Multiple officers, including Officer Strauch (who also testified at the
preliminary hearing), Officer Schroeck and Detective Suchy of the Erie Police
Vice Unit, testified on behalf of the Commonwealth. Officers Schroeck and
Strauch testified about their attempt to serve the warrant, locating the
heroin/fentanyl and their realization, after viewing the surveillance video, that
Amison had possessed and discarded a firearm, which appeared to them to
be a real gun. They explained the physical factors that made it appear to be
a semi-automatic handgun and drew inferences from the way Amison was
moving the firearm around, holding it and using it.
-5-
J-A11035-23
Detective Suchy, a 22-year veteran of the Erie Police Department and a
member of the drug task force testified that in his expert opinion, the amount
of heroin/fentanyl in this case was consistent with PWID. He explained that
in the hundreds of drug investigations in which he had participated, he had
never seen a user possess heroin/fentanyl in the amount Amison possessed
which was more than five times the amount that he had ever seen on a user.
Detective Suchy also testified that people with that much heroin possess it
with the intent to deliver it for profit. This was bolstered by secondary
evidence, including Amison’s possession of two cell phones, which the officers
stated is common for drug dealers.
The detective also explained that because drug dealing occurs in a
violent setting, drug dealers typically carry firearms for their protection.
Although Amison testified that the object in his possession was a BB gun, the
detective explained that he has never seen a drug dealer with a “fake” firearm
or BB gun because they would do very little for the drug dealers who were
trying to protect their product.
The jury convicted Amison of the foregoing charges on March 23, 2022,
and on April 25, 2022, the court sentenced him to an aggregate term of
incarceration of not less than eight nor more than sixteen years, plus
probation. Amison did not file a post-sentence motion, but he timely appealed
at the above docket numbers on May 25, 2022, and filed court-ordered
-6-
J-A11035-23
statements of errors. See Pa.R.A.P. 1925(b). This Court consolidated the
appeals sua sponte.
On appeal, Amison claims that (1) the evidence was insufficient where
it failed to prove the item in his possession met the statutory definition of a
firearm; (2) the court erred in denying his Rule 600 motion without holding a
hearing or making findings of fact and accepting the Commonwealth’s
adjusted run date; and (3) the trial court abused its discretion by allowing the
Commonwealth to argue that he should be convicted of PWID because he
possessed a firearm since it failed to prove that the item in his possession met
the legal definition of a “firearm.”
III.
A.
Amison first argues that the trial court erred in denying his habeas
corpus motion to dismiss the firearms charges because the Commonwealth
failed to produce sufficient evidence that he possessed a statutorily defined
“firearm” to establish a prima facie case. 3 The Commonwealth responds that
____________________________________________
3 Pursuant to our standard of review:
The decision to grant or deny a petition for writ of habeas corpus
will be reversed on appeal only for a manifest abuse of
discretion.... Our scope of review is limited to deciding whether a
prima facie case was established.... The Commonwealth must
show sufficient probable cause that the defendant committed the
offense, and the evidence should be such that if presented at trial,
and accepted as true, the judge would be warranted in allowing
-7-
J-A11035-23
individuals can be convicted of a firearms offense without direct evidence that
the weapon was operable because it can be established by circumstantial
evidence.
For the purpose of a persons not to possess charge, the Crimes Code
defines “firearm” as “any weapons which are designed to or may be readily
converted to expel any projectile by the action of an explosive.” 18 Pa.C.S.
§ 6105(i). Possessing firearms without a license relies on the general
definition of firearm contained in Section 6102, which defines firearm based
on its size, providing in pertinent part that a firearm is “[a]ny pistol or revolver
with a barrel length less than 15 inches[.]” 18 Pa.C.S. § 6102. Under these
statutes, we have held that “[t]he Commonwealth [] need not show the
weapon to have been operable until evidence of its inoperability has been
introduced into evidence.” Commonwealth v. Horshaw, 346 A.2d 340, 342
(Pa. Super. 1975). “[A] reasonable fact finder may ... infer operability ... from
an object which looks like, feels like, sounds like, or is like a firearm ... without
____________________________________________
the case to go to the jury. When deciding whether a prima facie
case was established, we must view the evidence in the light most
favorable to the Commonwealth, and we are to consider all
reasonable inferences based on that evidence which could support
a guilty verdict. The standard clearly does not require that the
Commonwealth prove the accused’s guilt beyond a reasonable
doubt at this stage.
Commonwealth v. Young, 904 A.2d 947, 954 (Pa. Super. 2006), appeal
denied, 916 A.2d 633 (Pa. 2006) (citation and brackets omitted).
-8-
J-A11035-23
direct proof of operability.” Commonwealth v. Fitzhugh, 520 A.2d 424, 432
(Pa. Super. 1987) (citation omitted). Thus, “testimony that defendant
possessed a gun allow[s] a reasonable inference of operability, despite lack of
direct testimony on this issue.” Commonwealth v. Holguin, 385 A.2d 1346,
1351 (Pa. Super. 1978).
At the argument on the petition for writ of habeas corpus or to dismiss
the firearms charges, defense counsel argued that the photograph he attached
to Amison’s motion was inconclusive to prove Amison had a firearm or that it
was operable. (See N.T., 10/20/21, at 11-12). The Commonwealth
countered that the photograph was merely one still from the surveillance
videotape that contained three camera angles that clearly showed Amison was
holding a gun. Furthermore, based on the circumstantial evidence that
Amison ran when the officers approached to serve the warrant, and he
removed the weapon that was hidden in his waistband and passed it off to
another individual who fled, there was sufficient circumstantial evidence that
Amison believed the weapon was an operable firearm, which was sufficient for
the issue to at least go to trial. (See id. at 13). The court did not abuse its
discretion when it found that this issue should go to the jury and denied the
motion for writ of habeas corpus or to dismiss the firearms charges.
B.
Similarly, Amison argues that the trial court erred in denying his motion
for judgment of acquittal on the firearms counts at the close of the
-9-
J-A11035-23
Commonwealth’s case because it failed to prove the operability of the
firearms.4
Officers Strauch and Schroeck testified about their attempt to serve the
warrant, locating the heroin/fentanyl and their realization, after viewing the
surveillance video, that Amison had discarded a firearm, which appeared to
them to be a real gun. They explained the physical factors that made it appear
to be a semi-automatic handgun and drew inferences from the way Amison
was moving the firearm around, holding it and using it. (See N.T. Trial,
3/21/22, at 77-79, 93-97, 100-04); (N.T. Trial, 3/22/22, at 24-30, 32-40, 44,
47, 52-53).
____________________________________________
4 “A motion for judgment of acquittal challenges the sufficiency of the evidence
to sustain a conviction on a particular charge, and is granted only in cases in
which the Commonwealth has failed to carry its burden regarding that
charge.” Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014).
A claim challenging the sufficiency of the evidence is a question of
law. 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. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim[,] the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Stahl, 175 A.3d 301, 303-04 (Pa. Super. 2017), appeal
denied, 189 A.3d 389 (Pa. 2018) (emphasis omitted).
- 10 -
J-A11035-23
The evidence also established that Amison was a drug dealer, which
tended to show that the item in Amison’s possession was an operable firearm
rather than a BB gun as he testified. Commonwealth expert Detective Suchy
of the drug task force testified, as he did at the suppression hearing, that the
amount of heroin/fentanyl was consistent with PWID in the hundreds of cases
with which he had been involved, had never seen a user possess
heroin/fentanyl in the amount Amison possessed, five times more than he had
ever seen on a user. He testified that Amison’s possession of two cell phones
is common for drug dealers, and because drug dealing occurs in a violent
setting, dealers typically carry firearms for their protection. The detective had
never seen a drug dealer with a “fake” firearm or BB gun because they would
do little for the drug dealers who were trying to protect their product.
Because the jury could infer from the foregoing that Amison discarded
the gun because it was an operable firearm rather than a BB gun, the trial
court properly denied his motion for judgment of acquittal at the close of the
Commonwealth’s case.5
____________________________________________
5 Amison argues that the trial court erred in allowing the Commonwealth to
argue that he was guilty of PWID because he possessed a firearm since it
failed to prove the weapon was operable. Again, this fails because the jury
could infer that Amison possessed an operable gun based on the
circumstantial evidence.
- 11 -
J-A11035-23
IV.
We next consider Amison’s claim that the trial court erred in denying his
Rule 600 motion when it failed to hold a hearing, make findings of fact and
accepted the Commonwealth’s adjusted run date.6 (See Amison’s brief, at
48-66).
A.
We first address the claim that the trial court erred when it failed to hold
an evidentiary hearing to determine if an Act 600 violation occurred. The
purpose of a Rule 600 hearing is for the parties to present factual allegations
about whether the defendant was denied his right to a speedy trial and, if so,
why. See Commonwealth v. McGeth, 622 A.2d 940, 945 (Pa. Super. 1993).
Generally, failure to hold a hearing on an appellant’s speedy trial issue
requires a case to be remanded for the hearing. See Commonwealth v.
Swartz, 579 A.2d 978, 980-81 (Pa. Super. 1990). This is so because our
scope of review on appeal is “limited to the evidence on the record of the Rule
600 evidentiary hearing and the findings of the trial court.” Commonwealth
v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006) (citation omitted).
____________________________________________
6 The trial court’s rulings as to computation of time under Rule 600 are
reviewed for an abuse of discretion. See Commonwealth v. Carter, 204
A.3d 945 (Pa. Super. 2019). “An appellate court must view the facts in the
light most favorable to the prevailing party.” Id. (citation omitted). “[W]hen
considering the trial court’s ruling, this Court is not permitted to ignore the
dual purpose behind Rule 600 … (1) the protection of the accused’s speedy
trial rights, and (2) the protection of society.” Id.- 12 -
J-A11035-23
However, if the docket entries demonstrate that the defendant was brought
to trial before the adjusted run date, then failing to hold a hearing is harmless
error. See McGeth, 622 A.2d at 945.
Immediately before trial commenced, the parties to this matter engaged
in a contentious argument on the Rule 600 motion about who bore the
responsibility for any of the delays. The Commonwealth argued that they
were caused in large part by Amison’s unavailability due to the numerous pre-
trial motions he repeatedly represented had to be decided before he could
proceed to trial. Amison relied on Hill, 736 A.2d 579, for his argument that
filing pre-trial motions did not automatically make him unavailable for Rule
600 purposes since they did not delay the start of trial. Instead, he maintained
that the court’s order scheduling a hearing on the motion was the date when
delay started because only once a hearing was scheduled did he become
unavailable. (See N.T., 3/21/22, at 11-26). Ultimately, the trial court
proposed deciding the issue based on Amison’s Rule 600 motion and the
Commonwealth’s response brief. Neither party objected. (See id. at 26).
First, Amison has waived this argument by failing to object at trial. See
Pa.R.A.P. 302(a). Moreover, even if not waived, we discern no abuse of
discretion where the trial court was familiar with the protracted procedural
history, heard argument on the Rule 600 issue, and decided the matter on
this basis, thus ensuring that this Court can review the reasons for its decision.
- 13 -
J-A11035-23
B.
Next, we determine if the trial court properly denied Amison’s Rule 600
motion.
Generally, Rule 600 protects the speedy trial rights of the accused, as
well as society's interest in prosecuting crimes. See Commonwealth v.
Watson, 140 A.3d 696, 698 (Pa. Super. 2016). The Rule mandates that a
“[t]rial 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 final day of that period is
called the “mechanical run date.” See Commonwealth v. Ramos, 936 A.2d
1097, 1101-04 (Pa. Super. 2007). “For purposes of paragraph (A), periods of
delay at any stage of the proceedings caused by the [Commonwealth’s failure
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[]” with the mechanical run date adjusted
accordingly. Pa.R.Crim.P. 600(C)(1) (emphasis added).
The trial court may exclude time from the Rule 600 calculation if “the
delay occurred as the result of circumstances beyond the Commonwealth’s
control and despite its due diligence[.]” Pa.R.Crim.P. 600, cmt. To prove it
acted with due diligence, the Commonwealth must demonstrate by a
preponderance of the evidence that it “put forth a reasonable effort.”
Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). “Where the
- 14 -
J-A11035-23
Commonwealth was prepared to proceed throughout the pendency of a case,
it demonstrated that it was prosecuting the defendant’s case with due
diligence.” Commonwealth v. Robbins, 900 A.2d 413 (Pa. Super. 2006),
appeal denied, 907 A.2d 1102 (Pa. 2006) (citation omitted).
In this case, the criminal complaint was filed in case number 3003-2019
on August 5, 2019,7 making the mechanical run date August 5, 2020.
Amison’s case went to trial on March 21, 2022, which was 593 days past the
mechanical run date.
Most of the delay in this matter was caused by emergency judicial orders
entered in response to the Covid-19 pandemic, which are not to be included
in the Rule 600 calculation. See Commonwealth v. Carl, 276 A.3d 743, 750
(Pa. Super. 2022) (Delays caused by a Covid-19 judicial emergency closure
order are not to be included in Rule 600 calculations); (see also Emergency
Judicial Order, 3/17/20, at ¶ 1);8 (Amended Emergency Judicial Order,
____________________________________________
7Amison withdrew his claim that Rule 600 precludes the prosecution of case
713-2020 because trial commenced within the mechanical run date. (See
N.T., 3/21/22, at 38).
8 The Emergency Judicial Orders direct:
The operation of Pa.R.Crim.P. 600 shall be suspended in the Sixth
Judicial District of the Court of Common Pleas of Erie County,
Pennsylvania, during the period of local judicial emergency. The
time period of the duration of the judicial emergency shall be
excluded from any time computation pursuant to Pa.R.Crim.P.
600. The Court finds that such delay is not chargeable to the
Commonwealth or the Defendants.
- 15 -
J-A11035-23
3/31/20); (Second Amended Emergency Judicial Order, 4/16/20); (Judicial
Order, 5/06/22). Erie County trials were cancelled from March 17, 2020, until
August 18, 2020. Although trial was scheduled for the September term, the
oldest cases were to have preference,9 which did not include Amison’s, and on
November 11, 2020, Erie County again issued emergency orders postponing
all criminal trials due to Covid-19, with trials to resume on February 8, 2021.
(See Emergency Judicial Order, 11/12/20); (Supplemental Emergency
Judicial Order, 12/21/20); (Administrative Order, 1/05/21).
This 328-day delay was excusable since it involved “circumstances
beyond the Commonwealth’s control and despite its due diligence.” Martz,
232 A.3d at 810. Adding this 328-days to the mechanical run date of August
5, 2020, results in an adjusted run date of June 21, 2021. Trial commenced
on March 21, 2022, 274 days beyond this date.
____________________________________________
(Emergency Judicial Order, 3/17/20, at ¶ 1); (see also Amended Emergency
Judicial Order, 3/31/20); (Second Amended Emergency Judicial Order,
4/16/20); (Judicial Order, 5/06/22).
9In its response to the Rule 600 motion, the Commonwealth explained that it
was permitted two trials after the August “soft opening of the Courthouse”
and that it was instructed that they were to be the oldest cases involving
defendants who were being held in jail on their charges. Amison was serving
a sentence on another case at the time. (Brief in Opposition to Defendant’s
Pretrial Motion, 3/21/22, at ¶ II(a)(iv)).
- 16 -
J-A11035-23
Additionally, another 274 days has to be subtracted from the mechanical
run date because on August 31, 2020, Amison filed a continuance of the
scheduled September trial for the court to first dispose of a related motion to
suppress, which ultimately was decided on April 30, 2021. In that motion, he
waived his speedy trial rights and the court’s order reflected same.10 (Motion
for Continuance with Waiver of Prompt or Speedy Trial, 8/31/20); (Order,
9/01/20) (continuing trial “from the September 2020 trial term to the end of
the next available trial term following resolution of the pending [police
dispatch information] discovery matter” with Rule 600 expiration date “to be
recomputed pursuant to the defendant’s Rule 600 waiver”). Subtracting these
241 days from the above 274 days results in a lapse of 33 days.
As to whether there is a valid excuse for those 33 days, the trial court,
in its Rule 1925(a) opinion, explains:
On March 21, 2022, the Commonwealth filed a Brief in
Opposition to Appellant’s Rule 600 motion. Oral argument was
____________________________________________
10 The record also reflects that Amison filed other continuance motions in
which he waived his Rule 600 right to a prompt and speedy trial, which the
trial court granted, observing the waivers. (Motion for Continuance with
Waiver of Prompt or Speedy Trial, 3/03/20); (Order, 3/03/20) (continuing trial
until end of April 2020 term with “Rule 600 expiration to be recomputed
pursuant to the Amison’s Rule 600 waiver of time from this date until the last
date of the April 2020 trial term of court”); (Motion for Continuance with
Waiver of Prompt or Speedy Trial, 8/03/21); (Order, 8/11/21) (continuing trial
until outstanding issues resolved with Rule 600 expiration date to be re-
computed pursuant to Amison’s Rule 600 waiver); (Motion for Continuance of
Hearing/[Argument] on Defendant’s Trial Motion, 8/19/21) (stating “time will
not be charged against Commonwealth”); (Order, 8/20/21) (rescheduling
hearing to 10/20/21) (delay will not be charged against the Commonwealth
for Rule 600 purposes).
- 17 -
J-A11035-23
held on March 21, 2022. The court concurred with the
Commonwealth’s calculations as set forth in the Commonwealth’s
brief, and on March 21, 2022 the court denied [Amison]’s motion.
Contrary to [Amison]’s claims, the court determined the
Commonwealth acted with due diligence for periods of delay
identified in [Amison]’s motion. [Amison] filed multiple pre-trial
motions after the original pro se and follow-up counseled omnibus
motion was ruled upon. There were numerous e-mail exchanges
between the Commonwealth and [Amison]’s counsel which, in the
court’s assessment, demonstrated a conscientious and high level
of diligence in prosecuting the case. The Commonwealth at one
or more times requested an earlier trial date, for example, e-mails
in January of 2022 requested rescheduling the trial from March of
2022 to February of 2022 to accommodate a potential
complication in the ADA’s trial schedule and the Commonwealth’s
concomitant desire to diligently prosecute the case. In that
instance, as one example, the court determined the time from the
beginning of the February of 2022 trial term through the start date
of trial, March 21, 2022, would not be held against the
Commonwealth. The court concurred with the Commonwealth’s
position as set forth in its brief and during argument, and denied
[Amison]’s motion. No abuse of discretion occurred. …
(Trial Ct. Op., at 5).
Based on the emails submitted by the Commonwealth, the trial court
found that it attempted in good faith to move the trial from March 21, 2022,
until the beginning of the February term, but Amison refused (after initially
agreeing), so the court declined to hold the approximately 48 days against the
Commonwealth for Rule 600 purposes. We discern no abuse of discretion and
based on the foregoing, there was no Rule 600 violation.
C.
Moreover, for the sake of completeness, we briefly address Amison’s
reliance on Hill, although this is not material to our disposition where we did
- 18 -
J-A11035-23
not base our decision on his multiple pretrial motions and, even if we did, Hill
would not support his position.
In Hill, the defendant filed four pre-trial motions between May 2, 1994,
and July 17, 1995, one of which was an omnibus pretrial motion that remained
pending the entire time. In considering whether Hill was “unavailable,” thus
rendering the time excludable, the Pennsylvania Supreme Court observed:
[T]he mere filing of a pretrial motion by a defendant does not
automatically render him unavailable. Rather, a defendant is only
unavailable for trial if a delay in the commencement of trial is
caused by the filing of the pretrial motion. If a delay is created,
in order to establish that the delay is excludable, the
Commonwealth must demonstrate, by a preponderance of the
evidence, that it exercised due diligence in opposing or responding
to the pretrial motion. A delay caused by the Commonwealth’s
lack of due diligence will not constitute excludable time.
Hill, 736 A.2d at 587 (citations omitted).
The record in Hill reflected that the court held multiple hearings in
considering the pretrial motions and the Supreme Court observed that,
therefore, “due to Hill's filing of pretrial motions, the commencement of his
trial was delayed. In order to determine whether the delays caused by the
pretrial motions should be excluded from the Rule [600] calculation, we must
consider whether the Commonwealth exercised due diligence in opposing
them.” Id. at 588.
Other than two continuance requests by the Commonwealth, it:
attended and was prepared for each of the hearings and other
proceedings that were conducted by the trial court throughout this
period. Thus, other than the two instances noted above, the
Commonwealth was duly diligent during the period between May
- 19 -
J-A11035-23
2, 1994 and July 17, 1995. Consequently, the entire period, less
four days, constitutes excludable time.
Id. at 588.
Similarly, here, Amison filed several pre-trial motions and the
Commonwealth exercised due diligence by responding, producing discovery
and appearing for the hearings. It explained that its failure to produce certain
items was not due to lack of diligence, but because they were not in its
possession. The few continuances the Commonwealth did request do not
appear to have been requested in bad faith, with it ultimately offering to bring
the case to trial sooner and Amison refusing.
We discern no abuse of discretion in the trial court’s finding that the
Commonwealth exercised due diligence. Therefore, even had this Court
decided the Rule 600 issue on the basis of Amison’s multiple pre-trial motions,
under Hill, Rule 600 time would continue to run where the motions caused
delays in trial because hearings had to be scheduled.
Viewing the foregoing in the light most favorable to the Commonwealth
and recognizing the dual purpose to be served by Rule 600 to preserve an
accused’s speedy trial rights and the protection of the public, the trial court
did not abuse its discretion in denying Amison’s Rule 600 motion. See Carter,
204 A.3d at 945 (Pa. Super. 2019).
Judgment of sentence affirmed.
- 20 -
J-A11035-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2023
- 21 -