Com. v. Cason, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MURSHID RASSOUL CASON,
Appellant No. 1791 WDA 2014
Appeal from the Judgment of Sentence October 10, 2014
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0002687-2013
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 06, 2015
Appellant, Murshid Rassoul Cason, appeals from the judgment of
sentence imposed following his bench trial conviction of possession with
intent to deliver and other related drug offenses.1 Specifically, Appellant
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*
Retired Senior Judge assigned to the Superior Court.
1
On October 28, 2014, counsel for Appellant filed a purported notice of
appeal “from the [j]udgment of [s]entence on September 30, 2014[.]”
Appellant was originally sentenced on August 6, 2014. The order of
September 30, 2014 denied Appellant’s post-sentence motion. Furthermore,
here, the court amended its sentence, on October 10, 2014. In a criminal
action, appeal properly lies from the judgment of sentence made final by the
denial of post-sentence motions. See Commonwealth v. Dreves, 839
A.2d 1122, 1125 n.1 (Pa. Super. 2003) (en banc) (citing cases). We have
corrected the caption accordingly.
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challenges the denial of his motion to dismiss pursuant to Pennsylvania Rule
of Criminal Procedure 600, for lack of a prompt trial.2 We affirm.
The complaint was originally filed on April 26, 2012. The
Commonwealth withdrew these charges on December 5, 2012, because
witnesses failed to appear and a laboratory report was unavailable. (See
Trial Court Opinion, 11/18/14, at 1).
The Commonwealth re-filed charges on June 5, 2013. (See
Information, 10/10/13, at 1-2; see also Commonwealth’s Brief, at 7;
Appellant’s Brief, at 2). Appellant filed an omnibus pre-trial motion, which in
pertinent part included a request for the charges to be dismissed pursuant to
Rule 600. (See Omnibus Pre-trial Motion, 12/30/13). The trial court denied
the motion on January 28, 2014.3
Following a non-jury trial on June 24, 2014, the court convicted
Appellant of two counts of possession with intent to deliver (cocaine),
possession of a small amount (8.56 grams) of marijuana and possession of
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2
On October 1, 2012, the Pennsylvania Supreme Court ordered that Rule
600 was rescinded and a new Pennsylvania Rule of Criminal Procedure 600
would be adopted effective July 1, 2013. See Pa.R.Crim.P. 600, Comment.
The Rule 600 at issue in this appeal is the former version of the Rule.
3
Appellant filed a motion for continuance on February 27, 2014, which the
trial court granted on March 5, 2014. (See Order, 3/05/14; see also
Appellant’s Brief, at 2). On May 15, 2014, after the parties agreed to a non-
jury trial, Appellant moved to continue the non-jury waiver colloquy
(scheduled for May 20, 2014), which the court granted by order filed on May
16, 2014.
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drug paraphernalia.4 The Commonwealth filed notice of its intent to seek a
mandatory minimum sentence of three years’ imprisonment plus a fine of
$15,000. On August 6, 2014, the court sentenced Appellant to an aggregate
term of not less than thirty-six months’ nor more than seventy-two months’
incarceration, less six days’ credit for time served.5
Appellant filed a post-sentence motion, again challenging the denial of
his Rule 600 motion. The court denied the motion without a hearing, (see
Order, 9/30/14), but on October 10, 2014, reduced Appellant’s sentence to
not less than twelve months’ nor more than thirty six months’ incarceration
(with credit for time served and RRRI eligibility).6 (See Amended
Sentencing Order, 10/10/14). This timely appeal followed.7
Appellant presents one generic question for our review:
[Did t]he trial court [err] in failing to grant [Appellant’s]
motion to dismiss pursuant to Rule 600 of the Pennsylvania
Rules of Criminal Procedure[?]
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4
The court found that count three, possession of 8.56 grams of marijuana
merged with count five, possession of 8.56 grams of marijuana. The court
acquitted Appellant of one count of possession of seventeen
dihydrocodeineone tablets.
5
The court also imposed total fines of $15,200, and costs; it found Appellant
to be RRRI and boot camp eligible. (See Sentencing Order, 8/06/14).
6
See Recidivism Risk Reduction Incentive Act, 61 Pa.C.S.A. §§ 4501-4512.
7
Appellant’s trial counsel filed a court-ordered statement of errors on
November 12, 2014. The trial court filed a memorandum opinion on
November 18, 2014. See Pa.R.A.P. 1925.
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(Appellant’s Brief, at 2).
In evaluating [Pa.R.Crim.P.] 600 issues, our standard of
review of a trial court’s decision is whether the trial court abused
its discretion. Furthermore:
The proper scope of review [. . .] is limited to the
evidence of record of the [Pa.R.Crim.P.] 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 [Pa.R.Crim.P.] 600. [Pennsylvania Rule of
Criminal Procedure] 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 [Pa.R.Crim.P.]
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, [Pa.R.Crim.P.] 600 must be construed
in a manner consistent with society’s right to punish and deter
crime.
Commonwealth v. Surovcik, 933 A.2d 651, 653-54 (Pa. Super. 2007),
appeal denied, 951 A.2d 1163 (Pa. 2008) (citation and footnote omitted). In
reviewing whether the trial court abused its discretion, our Supreme Court
has explained that:
[t]he term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion must
be exercised on the foundation of reason, as opposed to
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prejudice, personal motivations, caprice or arbitrary actions.
Discretion is abused when the course pursued represents not
merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality,
prejudice, bias or ill will.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation
omitted).
To determine whether dismissal is required under Rule
600, a court must first calculate the “mechanical run date,”
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. Pa.R.Crim.P. 600(C). 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. . . .
[T]he 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.
Commonwealth v. Goldman, 70 A.3d 874, 879–80 (Pa. Super. 2013),
appeal denied, 85 A.3d 482 (Pa. 2014) (citations and some internal
quotation marks omitted). “When calculating the number of days set forth
herein, see the Statutory Construction Act, 1 Pa.C.S. § 1908.” Pa.R.Crim.P.
600, Comment.8
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8
Section 1908, computation of time, provides:
When any period of time is referred to in any statute, such
period in all cases, except as otherwise provided in section 1909
(Footnote Continued Next Page)
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Furthermore,
Dismissal of charges is an “extreme sanction” that should
be imposed sparingly and only in cases of blatant prosecutorial
misconduct. Commonwealth v. Burke, 566 Pa. 402, 781 A.2d
1136, 1144 (2000). A dismissal punishes not only the
prosecutor, but also the public at large because “the public has a
reasonable expectation that those who have been charged with
crimes will be fairly prosecuted to the full extent of the law.”
Commonwealth v. Shaffer, 551 Pa. 622, 712 A.2d 749, 753
(1998). Therefore, a trial court should consider dismissal of
charges only where the actions of the Commonwealth are
egregious and where demonstrable prejudice will be suffered by
the defendant if the charges are not dismissed. Id.Goldman, supra at 881.
Preliminarily, here, we observe that Appellant’s generic question fails
to comply with Pennsylvania Rule of Appellate Procedure 2116, which
provides in relevant part that “[t]he statement of the questions involved
must state concisely the issues to be resolved, expressed in the terms and
circumstances of the case but without unnecessary detail.” Pa.R.A.P.
2116(a).
Similarly, Appellant fails to comply with Pa.R.A.P. 2119(a), which
requires that “[t]he argument shall be divided into as many parts as there
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(Footnote Continued)
of this title (relating to publication for successive weeks) and
section 1910 of this title (relating to computation of months)
shall be so computed as to exclude the first and include the last
day of such period. Whenever the last day of any such period
shall fall on Saturday or Sunday, or on any day made a legal
holiday by the laws of this Commonwealth or of the United
States, such day shall be omitted from the computation.
1 Pa.C.S.A. § 1908.
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are questions to be argued; and shall have at the head of each part─in
distinctive type or in type distinctively displayed─the particular point treated
therein, followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). We could quash or dismiss this
appeal for Appellant’s failure to identify a specific reviewable assertion of
trial court error in the statement of questions involved.9 See Pa.R.A.P.
2101. Nevertheless, in the interest of judicial economy, we will address the
issues we are able to discern from the argument section of Appellant’s non-
compliant brief.
Appellant appears to offer two arguments in support of his general
claim. (See Appellant’s Brief, at 4). First, he asserts that the original
complaint was not properly dismissed, and, secondly, he posits that the
Commonwealth was attempting to circumvent Rule 600 by withdrawing and
refiling the charges. (See id.). He maintains that the trial court should
have granted his motion to dismiss the charges. (See id. at 9). We
disagree.
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9
Rule 2101 provides:
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they
may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the
appeal or other matter may be quashed or dismissed.
Pa.R.A.P. 2101.
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For his first argument Appellant appears to propose that there is an
independent requirement, beyond the conceded withdrawal of charges by
the Commonwealth, that the charges must also be dismissed by the
magisterial district judge: (“The complaint in this case was not dismissed by
a magistrate or judicial authority. Rather, the [c]omplaint was withdrawn by
the Commonwealth . . . .”). (Id. at 6). This claim relies on an excerpt from
Commonwealth v. Lynn, 815 A.2d 1053, 1058 (Pa. Super. 2003), taken
out of context. (See Appellant’s Brief, at 5-6).
Initially, on this issue, we observe that Appellant has failed to ensure
that the certified record includes any documentation prior to the entry of the
re-filed charges, precluding meaningful review of the claim made about the
disposition of the previously filed charges.
“Our law is unequivocal that the responsibility rests upon the appellant
to ensure that the record certified on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006),
appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted). The Preston
Court explained:
This Court cannot meaningfully review claims raised on appeal
unless we are provided with a full and complete certified record.
This requirement is not a mere “technicality” nor is this a
question of whether we are empowered to complain sua sponte
of lacunae in the record. In the absence of an adequate certified
record, there is no support for an appellant’s arguments and,
thus, there is no basis on which relief could be granted.
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Id. (citation omitted). Accordingly, this claim is waived.
Moreover, even assuming Appellant’s hypothesis, (that even if the
Commonwealth withdrew the charges they should also have been formally
dismissed by the magisterial district judge), to be true for the sake of
discussion, the claim has no merit. (See Appellant’s Brief, at 4: “prior
complaint [must be] properly dismissed by a district magistrate”).
This claim is belied by the plain language of the sole authority
Appellant cites in support:
[W]hen an initial complaint has been withdrawn or otherwise
dismissed, the [Rule 600 time] period begins to run anew with
the filing of a subsequent complaint only if (1) the earlier
complaint was properly dismissed by a competent magisterial or
judicial authority, and (2) the record does not reveal evidence of
a prosecution attempt to circumvent Rule [600].
Lynn, supra at 1058 (emphasis added) (citations omitted); (see Appellant’s
Brief, at 5-6). Dismissal is not an independent requirement; it is an
alternative predicate.
Moreover, even a cursory review of Lynn reveals that the real issue in
that appeal was that the arresting officer was instructed to withdraw the
complaint, and refile the same criminal charges on the same date because of
“time problems.” Id. at 1058. The Lynn Court concluded that this
demonstrated “a blatant attempt by the Commonwealth to evade the
requirements of Rule 600, and was nothing more than a pretext to
circumvent the Rule.” Id. Lynn does not support Appellant’s claim.
Appellant’s claim lacks merit.
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Because Appellant’s first argument is without foundation in law or fact,
it is, accordingly, legally frivolous. See Commonwealth v. Chmiel, 30
A.3d 1111, 1190 (Pa. 2011) (“A frivolous issue is one lacking in any basis in
law or fact, but is distinguishable from an issue that simply lacks merit.”)
(emphasis in original) (citations omitted). Appellant’s first claim is waived
and lacks merit.
Next, Appellant baldly asserts that there is evidence that the
Commonwealth was attempting to circumvent Rule 600. (See Appellant’s
Brief, at 4, 9). However, aside from noting that the Commonwealth “did not
act promptly in refiling the charges,” Appellant utterly fails to develop this
issue, and offers neither pertinent authority nor reference to the record to
support his claim. (Id. at 9); see also Pa.R.A.P. 2119(a)-(c).
Instead, Appellant merely makes the bald assertion that “the trial . . .
did not take place in a speedy manner due to the Commonwealth’s inability
to prosecute the case in a timely manner.” (Appellant’s Brief, at 9). The
claim is unsupported and circuitous. Accordingly, Appellant’s second claim is
waived.
Moreover, it would not merit relief. The trial court found that the
magisterial district judge continued the preliminary hearing, a delay over
which the Commonwealth had no control. (See Trial Ct. Op., at 1).
Our Supreme Court [has] reasoned that the
Commonwealth will be allowed the benefit of filing [a] second
complaint where the withdrawal and re-filing of the charges is
necessitated by factors beyond its control. . . . Due diligence is
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fact-specific, to be determined case-by-case; it does not require
perfect vigilance and punctilious care, but merely a showing the
Commonwealth has put forth a reasonable effort.
Commonwealth v. Rhodes, 54 A.3d 908, 912 (Pa. Super. 2012) (quoting
Commonwealth v. Leak, 22 A.3d 1036, 1042 (Pa. Super. 2011), appeal
denied, 31 A.3d 291 (Pa. 2011)) (quotation marks and other punctuation
omitted).
Here, the Commonwealth asserts that it was duly diligent. (See
Commonwealth’s Brief, at 4). The trial court, in effect, makes the same
finding. (See Trial Ct. Op., 11/18/14, at 1) (“The Commonwealth acted
reasonably and appropriately under the circumstances.”). Appellant offers
no evidence to the contrary. Instead, after conceding that the continuances
between June 20, 2012 and December 5, 2012 were attributable to the
defense, Appellant makes the mere bald assertion that four enumerated
periods are all attributable to the Commonwealth. (See Appellant’s Brief, at
6).
Appellant concedes that the first period of fifty-five days (April 26,
2012 to June 20, 2012) were due to the continuance by the magisterial
district judge. (See id.). For the other three time periods, Appellant
provides no explanation whatsoever. It is not the role of this Court to
develop an argument for a litigant, or to scour the record to find evidence to
support an argument. See J.J. DeLuca Co., Inc. v. Toll Naval
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Associates, 56 A.3d 402, 411 (Pa. Super. 2012). This second issue is
waived for that reason as well.
The Commonwealth notes that the second criminal complaint was filed
on June 5, 2013. (See Commonwealth’s Brief, at 7). Therefore, the
mechanical run date was June 5, 2014. The Commonwealth asserts, and
our independent review of the record confirms, that Appellant’s trial counsel
filed a Motion for Extension of Time to File Omnibus Pre-trial Motion, on
November 27, 2013. (See Motion, 11/27/13).
The trial court granted an extension until December 30, 2013, the date
on which trial counsel in fact filed the motion. Therefore, based on this
motion alone, there were thirty-three days of excludable time, and the
adjusted run date became July 8, 2014. The trial occurred on June 24,
2014. Appellant was tried well within the time prescribed by Rule 600.
The trial court asserts, without further explanation, that even if all the
time is tabulated from the filing of the first complaint, not including
excludable time from April 26, 2012 to December 5, 2012, Appellant was still
promptly tried. (See Trial Ct. Op., at 2). The Commonwealth makes a
similar argument. (See Commonwealth’s Brief, at 7-9). However, because
the Commonwealth is allowed the benefit of filing a second complaint, we
need not address this issue. See Rhodes, supra at 912. We discern no
basis to disturb the discretion of the trial court. See Widmer, supra at
753.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2015
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