Com. v. Rose, M. ( 2017 )

J-S44044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MANUEL M.M. ROSE, :
:
Appellant : No. 934 EDA 2016
Appeal from the Judgment of Sentence March 1, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0008699-2012
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 17, 2017
Manuel M.M. Rose (“Rose”) appeals from the judgment of sentence
imposed following his conviction of criminal trespass—breaking into structure
and theft by unlawful taking—movable property.1 We affirm.
Pursuant to the trial court docket, Rose was arrested on July 10, 2012,
and charged with numerous offenses, including burglary, criminal trespass—
breaking into structure, theft by unlawful taking—movable property, and
criminal mischief—tampering with property. Trial was initially scheduled for
April 22, 2013, but was continued due to Rose’s late Notice to the
Commonwealth of an alibi defense. The trial court rescheduled the trial to
September 5, 2013, and indicated that it had given Rose the “[e]arliest
possible date.” The trial court also ruled that the delay was excludable for
1
See 18 Pa.C.S.A. §§ 3505(a), 3921(a).
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Pa.R.Crim.P. 600 purposes.2 On September 5, 2013, the parties appeared
before the court, and jury selection commenced. However, the trial court
terminated jury selection and cancelled the trial. On September 9, 2013,
the trial court granted Rose’s Motion for a continuance to further consider a
plea offer made by the Commonwealth. The trial court ruled that the delay
was excludable for Rule 600 purposes. On September 16, 2013, Rose
rejected the Commonwealth’s plea offer. Thereafter, the trial court
scheduled the matter for trial on July 7, 2014.
On November 18, 2013, Rose filed a Motion to dismiss pursuant to
Rule 600. Rose filed additional Motions to dismiss pursuant to Rule 600 on
April 4, 2014, and May 14, 2014. On June 10, 2014, following a hearing,
the trial court denied Rose’s Motions to dismiss.
On July 3, 2014, the trial court conducted a pretrial conference, after
which it continued the trial, and indicated that “[p]ossible non-trial
disposition to be decided on 9/19/14.” The docket further reflects that, on
September 19, 2014, the trial court granted Rose’s Motion for continuance to
conduct further investigation. The trial court scheduled the matter for trial
2
Rule 600 provides, in pertinent part, that “[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). Per the associated computational guidance, periods of delay
at any stage of the proceedings caused by the Commonwealth, when it has
failed to exercise due diligence, are to be counted in the 365-day tally. See
id. 600(C)(1). The rule further directs that “[a]ny other periods of delay
shall be excluded from the computation.” Id.; see also Commonwealth v.
Mills, 2017 Pa. LEXIS 1380, at *5 (June 20, 2017) (stating that periods of
judicial delay are excludible from calculations under Rule 600).
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on January 26, 2015, and ruled that the delay was excludable for Rule 600
purposes. On January 23, 2015, the trial court conducted a pretrial
conference, at which Rose moved for a continuance based on his counsel’s
conflict of interest. The trial court granted Rose’s Motion, appointed Rose
new counsel, and scheduled a status conference regarding counsel for
February 6, 2015. On February 6, 2015, the trial court granted Rose’s
Motion for a continuance for “possible non-trial disposition” of the case. On
February 11, 2015, the trial court granted Rose’s further request for a
continuance based on the unavailability of newly appointed counsel. The
trial court appointed Rose new counsel, and scheduled a status conference
regarding counsel for March 2, 2015. On March 2, 2015, Rose was not
brought to court from prison, due to a writ failure. Accordingly, the trial
court rescheduled the status conference regarding counsel for March 18,
2015. On March 18, 2015, the trial court granted Rose’s Motion for a
continuance “to relist the case for further status.” The trial court
rescheduled the matter for trial on November 9, 2015, which was the
“earliest possible date,” and ruled that the delay was excludable for Rule 600
purposes. On November 9, 2015, Rose again moved for dismissal pursuant
to Rule 600, which Motion the trial court denied. Rose thereafter waived his
right to a jury trial. The trial court scheduled Rose’s bench trial for
November 10, 2015.
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On November 10, 2015, following a bench trial, Rose was found guilty
of criminal trespass and theft by unlawful taking, and not guilty on all other
charges. On March 1, 2016, Rose was sentenced to an aggregate prison
term of 18 to 36 months. Rose timely filed a Notice of Appeal, and a court-
ordered Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal.
On appeal, Rose raises the following issue for our review:
Did not the [trial] court err in denying [Rose’s M]otion to
dismiss[,] pursuant to Pa.R.Crim.P. 600[,] because, including the
time attributable to the conventional progression of a criminal
case and the time attributable to the Commonwealth due to its
non-diligent delay, and excluding the time not counted due to
delay beyond the Commonwealth’s control, more than 365 days
had elapsed before [Rose] was brought to trial?
Brief for Appellant at 3.
We review Rose’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].
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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. Armstrong, 74 A.3d 228, 234-35 (Pa. Super. 2013)
(citation omitted).
Rose contends that, because the Criminal Complaint was filed on July
10, 2012, the mechanical run date was July 10, 2013. Brief for Appellant at
7. Rose concedes that there is a period (136 days) of excludable time, from
April 22, 2013 to September 5, 2013, which resulted in an adjusted run date
of November 23, 2013. Id. Rose claims that the trial did not occur until
1,217 days after the Complaint was filed. Rose argues that the trial court
erred by determining that he had caused all of the delays. Id. Rose
contends that the docket reflects no requests by Rose for continuances, or
other excludable time between the date of the Complaint and April 22, 2013
(the first trial date). Id. at 9. Rose asserts that all parties were ready for
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trial on September 5, 2013, but the trial court, sua sponte, continued the
trial to July 7, 2014, for the Commonwealth to make an offer to resolve both
of Rose’s open cases. Id. Rose claims that he had rejected all offers made
by the Commonwealth, and did not request the continuance. Id.
Rose contends that, on July 3, 2014, the case was relisted for
September 19, 2014, for a potential plea, with no finding of excludable time
between July 7, 2014, and September 19, 2014. Id. at 10. Rose asserts
that the trial court improperly denied his request to assign a trial date. Id.
Rose claims that, on September 19, 2014, he was not transported from state
custody to court for trial, and there is no record of the Commonwealth
preparing a writ for his transfer. Id. Rose argues that the trial court erred
when it “ruled that the continuance was a defense request and that the time
until the next listed trial date of January 26, 2015, was excludable….” Id.
Rose contends that the trial court permitted the public defender to withdraw
from representation, due to a conflict of interest, and that the trial court
thereafter appointed “a succession of three new attorneys, resulting in a
delay until March 18, 2015, whereupon final trial counsel requested and was
granted a trial date [on November 9, 2015].” Id. Rose asserts that the trial
court erred by determining that this further delay was also attributable to
the defense. Id.
In its Opinion, the trial court addressed Rose’s issue, set forth the
relevant law, and determined that the issue lacks merit. See Trial Court
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Opinion, 9/14/16, at 2-5. We agree with the reasoning of the trial court,
which is supported by the record and free of legal error, and affirm on this
basis. See id.3
Judgment of sentence affirmed.
President Judge Emeritus Bender joins the memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
3
In its Opinion, the trial court addressed only its June 10, 2014 Order
denying Rose’s Motions for dismissal, and did not address its subsequent
denial of Rose’s November 9, 2015, Motion for dismissal, or the trial court’s
denial thereof. Nevertheless, based on our review of the trial court docket,
we conclude that all subsequent delays were not caused by the
Commonwealth, and were properly excludable for purposes of Rule 600.
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Circulated 06/23/2017 03:27 PM