Com. v. Powell, D. ( 2022 )

J-A07035-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEION POWELL :
:
Appellant : No. 976 EDA 2021
Appeal from the Judgment of Sentence Entered June 23, 2020
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003153-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JUNE 22, 2022
Appellant, Deion Powell, appeals nunc pro tunc from the judgment of
sentence entered in the Montgomery County Court of Common Pleas, following
his bench trial convictions for multiple counts of criminal conspiracy, burglary,
robbery, and related offenses.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On March 5, 2018, Appellant and his cohorts committed a home invasion at a
property in Lafayette Hill. The intruders bound the victim with duct tape, kept
him in a choke hold, and threatened him with knives. The intruders also
ransacked the home, taking items such as the victim’s debit card and vehicle.
On April 11, 2018, the Commonwealth filed its criminal complaint
____________________________________________
1 18 Pa.C.S.A. §§ 903, 3502, and 3701, respectively.
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against Appellant.
The first pre-trial conference was held on September 20,
2018, at which time [Appellant] requested a continuance.
The parties returned again on October 18, 2018, at which
time [Appellant] once again requested a continuance. A
third defense continuance request was made at the
November 16, 2018 pre-trial conference. The parties
appeared at a fourth pre-trial conference on December 13,
2018, and the case was placed on the January 2019 call of
the trial list.
On January 17, 2019, the Commonwealth filed a notice
joining two additional co-defendants with [Appellant].
[Appellant] then appeared before [the] court on January 22,
2019 so as to schedule his case for trial. On January 22,
2019, the two additional co-defendants, Kayla Johnson and
Latisha Williams, had not yet been arraigned, as their cases
were initiated later than [Appellant’s] case.1 The co-
defendants were placed on an expedited trial list and the
court scheduled all parties for trial to begin on June 17,
2019.
1 At the time of the filing of [Appellant’s] criminal
complaint the co-defendants had yet to be identified
and were only listed by vague description in
[Appellant’s] criminal complaint.
On June 10, 2019, unbeknownst to both defense counsel
and the District Attorney handling [Appellant’s] matter,
[the] court, unaware of the joinder, granted the co-
defendants a sixty (60) day continuance. On June 14, 2019,
three days prior to the scheduled June 17, 2019 trial date,
in light of the continuance for the joined co-defendants, a
motion for date certain trial for [Appellant] was filed by the
Commonwealth.
This motion triggered an on-the-record conference held on
June 21, 2019. At the conference, the court indicated to the
Commonwealth and defense counsel that it would be ready
for trial on July 1, 2019, without the co-defendants. The
Commonwealth indicated that it would be ready. Defense
counsel indicated that she needed additional time in order
to review recently provided DNA evidence that she only
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became aware of days earlier. On June 11, 2019, the
Commonwealth sent an e-mail correspondence to defense
counsel regarding DNA evidence that the Commonwealth
believed, in error, had [not] been shared with defense
counsel. The Commonwealth inadvertently failed to send
the DNA evidence to defense counsel when the report was
received in April 2019. The court entered an order following
the hearing on the motion for date certain trial, in which the
trial delay was attributed to the Commonwealth for Rule 600
purposes.
* * *
The parties returned before the court on August 6, 2019, on
the call of the trial list conference schedule, originally
planned for the day prior. At that time, the parties
scheduled the multi-day trial to begin on December 16,
2019. This date was chosen in part due once again to
accommodate a sixty (60) day continuance request that was
granted earlier for co-defendants to the case, and in part
due to the court’s calendar in trying to schedule a four (4)
day jury trial.
Defense counsel filed three [Pa.R.Crim.P.] 600 motions.
They were filed on November [27], 2019, December 9,
2019, and December 12, 2019. A hearing was held on
December 5, 2019 on the Rule 600 motion that had been
filed in November 2019. On December 16, 2019, the court
heard argument on the later-filed motions, at which time
the court denied all three of the Rule 600 motions.
[Appellant] was found guilty following a stipulated bench
trial on December 16, 2019, and was sentenced on June 23,
2020. [The court imposed an aggregate sentence of four
and one-half (4½) to nine (9) years’ imprisonment, followed
by five (5) years of probation. Appellant] did not file a post-
sentence motion, nor did he file a timely appeal. On January
12, 2021, the Clerk of Courts of Montgomery County
received and docketed a pro se notice of appeal that was
signed and dated December 29, 2020, which was later
withdrawn. [Appellant timely filed a petition pursuant to the
Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§
9541-9546], alleging ineffectiveness by trial counsel in
failing to file a timely notice of appeal. As the
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Commonwealth did not object, [the] court granted
[Appellant’s] PCRA by order dated April 5, 2021, reinstating
[Appellant’s] appellate rights. [Appellant] filed a timely
notice of appeal [nunc pro tunc] on April 15, 2021. By order
dated April 20, 2021, the [trial court] directed [Appellant]
to file a statement of errors complained of on appeal,
pursuant to Pennsylvania Rule of Appellate Procedure
1925(b). The court received [Appellant’s Rule] 1925(b)
statement on May 7, 2021.
(Trial Court Opinion, filed June 11, 2021, at 1-4) (record citations and some
capitalization omitted).
Appellant now raises five issues for our review, which we have re-
ordered as follows:
Did the trial court err in denying Appellant’s motion for
dismissal pursuant to Pa.R.Crim.P. 600 filed on or about
November 27, 2019?
Did the trial court err in denying Appellant’s supplemental
motion for dismissal pursuant to Pa.R.Crim.P. 600, filed on
or about December 9, 2019?
Did the trial court err in denying Appellant’s supplement to
the supplemental motion to dismiss pursuant to
Pa.R.Crim.P. 600, filed on or about December 12, 2019?
Did the trial court err in ordering Rule 600 time to run
against Appellant starting on July 1, 2019, as outlined in the
court’s July 1, 2019 order sur Commonwealth motion for
date certain trial, despite the fact that a trial continuance
was required and granted on the basis that the
Commonwealth withheld discovery, and the defense needed
adequate time to investigate the new information?
Did the trial court err in denying Appellant’s request for
continuance to investigate newly produced discovery, as
pled in Appellant’s supplement to supplemental motion to
dismiss, and argued on December 16, 2019?
(Appellant’s Brief at 5-6).
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In his first four issues, Appellant contends that 595 days passed
between the filing of the criminal complaint and the filing of his first Rule 600
motion. Appellant maintains that the Commonwealth did not act with due
diligence throughout this entire period because it failed to provide “complete
discovery to the defense or alert the defense of outstanding discovery.” (Id.
at 34). Under these circumstances, Appellant reasons that the
Commonwealth violated Rule 600.
Appellant acknowledges that the trial court analyzed the delays in this
case, but he insists that the court improperly characterized certain delays as
“excludable” when calculating an adjusted run date under Rule 600. Appellant
emphasizes the court’s finding that the period between January 22, 2019 and
June 11, 2019 was excludable due to delays attributable to the co-defendants.
Appellant claims this finding is “contrary to the testimony,” the co-defendants
did not request a continuance, and the delay was meant “to accommodate the
Commonwealth.” (Id. at 46).
Appellant further argues that the Commonwealth executed a proffer
letter with Co-Defendant Lateisha Williams on March 4, 2019, whereby Ms.
Williams agreed to testify against Appellant at trial. Appellant asserts that
defense counsel did not learn about Ms. Williams’ cooperation until December
2019, despite submitting formal and informal discovery requests beginning in
September 2018. Because the Commonwealth intentionally withheld this
discovery material, Appellant posits that the period of “March 4, 2019 to
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December 16, 2019 must count toward the Rule 600 calculation.” (Id. at 55).
Based upon his own calculations, as well as the Commonwealth’s failure to
exercise due diligence, Appellant concludes that the court erred by denying
his Rule 600 motions. We disagree.
The following principles apply to our review of a speedy trial claim:
Our standard of review in a Rule 600 issue is whether the
trial court abused its discretion. Our scope of review when
determining the propriety of the trial court is limited to the
evidence in the record, the trial court’s Rule 600 evidentiary
hearing, and the trial court’s findings. We must also view
the facts in the light most favorable to the prevailing party[.]
Commonwealth v. Risoldi, 238 A.3d 434, 449 n.14 (Pa.Super. 2020),
appeal denied, ___ Pa. ___, 244 A.3d 1230 (2021).
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 individual accused, but the
collective right of the community to vigorous law
enforcement as well.
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Commonwealth v. Martz, 232 A.3d 801, 809-10 (Pa.Super. 2020) (quoting
Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa.Super. 2011)).
Rule 600 sets forth the speedy trial requirements and provides in
pertinent part:
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial
* * *
(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.
* * *
(C) Computation of Time
(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(A)(2)(a), (C)(1).
“Rule 600 generally requires the Commonwealth to bring a defendant
on bail to trial within 365 days of the date the complaint was filed.”
Commonwealth v. Hunt, 858 A.2d 1234, 1240 (Pa.Super. 2004) (en banc),
appeal denied, 583 Pa. 659, 875 A.2d 1073 (2005). A defendant on bail after
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365 days, but before trial, may apply to the court for an order dismissing the
charges with prejudice. Id. at 1240-41. To obtain relief, a defendant must
have a valid Rule 600 claim at the time he files the motion to dismiss. Id. at
1243.
[A] defendant is not automatically entitled to discharge
under Rule 600 where trial starts more than 365 days after
the filing of the complaint. Rather, Rule 600 provides for
dismissal of charges only in cases in which the defendant
has not been brought to trial within the term of the adjusted
run date, after subtracting all excludable … time. The
adjusted run date is calculated by adding to the mechanical
run date, i.e., the date 365 days from the complaint, …
excludable time…. “Excludable time” is classified as periods
of delay caused by the defendant.
Martz, supra at 810 (quoting Commonwealth v. Moore, 214 A.3d 244,
248-49 (Pa.Super. 2019), appeal denied, ___ Pa. ___, 224 A.3d 360 (2020))
(internal citations and some quotation marks omitted).
“When considering a Rule 600 motion, the court must identify each
period of delay and attribute it to the responsible party, then adjust the 365-
day tally to arrive at the latest date upon which the Commonwealth may try
the defendant.” Commonwealth v. Barbour, 647 Pa. 394, 399, 189 A.3d
944, 947 (2018). “Absent a demonstration of due diligence, establishing that
the Commonwealth has done ‘everything reasonable within its power to
guarantee that [the] trial begins on time,’ the Commonwealth’s failure to bring
the defendant to trial before the expiration of the Rule 600 time period
constitutes grounds for dismissal of the charges with prejudice.” Id. at 399-
400, 189 A.3d at 947 (quoting Commonwealth v. Matis, 551 Pa. 220, 230,
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710 A.2d 12, 17 (1998)). “As has been oft stated, [d]ue diligence is 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. Dixon, 140 A.3d 718, 723
(Pa.Super. 2016), appeal denied, 639 Pa. 170, 159 A.3d 938 (2016) (quoting
Commonwealth v. Colon, 87 A.3d 352, 359 (Pa.Super. 2014)).
“[D]elays caused by co-defendant and/or their counsel may constitute
sufficient grounds for an extension of time for trial under Rule [600].”
Commonwealth v. Long, 532 A.2d 853, 855 (Pa.Super. 1987), appeal
denied, 518 Pa. 617, 541 A.2d 744 (1988).
In [Long, supra], we held there was no abuse of discretion
in denying a co-defendant’s motion to dismiss pursuant to
Rule 600, because the delays caused by a co-defendant
were also attributable to other co-defendants when separate
trials would have required the duplication of testimony and
evidence, and would have imposed the burden of two
lengthy trials on the trial court.
Commonwealth v. Kimbrough, 872 A.2d 1244, 1260 (Pa.Super. 2005) (en
banc), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005).
Instantly, the Commonwealth filed the criminal complaint on April 11,
2018. Therefore, the mechanical run date was April 11, 2019. Appellant
proceeded to a pretrial conference on September 20, 2018. At that time,
Appellant requested a continuance, and the court rescheduled the pretrial
conference. Appellant requested additional continuances on the next two
dates scheduled for the pretrial conference. Ultimately, the court conducted
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the pretrial conference on December 13, 2018. Because Appellant caused the
delays between September 20, 2018 and December 13, 2018, this period was
excludable. See Martz, supra.
At the pretrial conference, the court placed Appellant’s case on the
January 2019 trial list. The Commonwealth subsequently filed a notice of
joinder of Appellant and his co-defendants’ cases. (See Notice, filed 1/17/19,
at 1). The notice indicated that Appellant’s co-defendants, Ms. Williams and
Kayla Johnson, were “currently awaiting arraignment,” and all of the offenses
at issue were based on “the same series of acts or transactions.” (Id.) After
the joinder, the parties appeared for the call of the trial list on January 22,
2019. At the Rule 600 hearing, Appellant’s counsel explained what happened
at this listing:
It was at that point during conference for trial date that I
requested—we were looking at March dates but because the
co-defendants had not hit arraignment yet, and the first co-
defendant … wasn’t scheduled to hit pre-trial conference
until April, the [c]court bumped the trial date out to June
and moved the co-defendants to the trial list as opposed to
pre-trial conference.
* * *
So they were expedited onto trial list, these two co-
defendants of the group, in an effort to speed up those
cases. And the [c]ourt scheduled as late a[s] possible of a
trial to accommodate the Commonwealth’s delay in bringing
in those co-defendants at that point.
(N.T. Rule 600 Hearing, 12/5/19, at 32).
Consistent with the arguments now raised on appeal, counsel attempted
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to blame the Commonwealth for the delays associated with joinder. The court,
however, concluded that such delay was excludable:
The June [2019 trial] date was chosen in order to
accommodate the co-defendants whose criminal complaints
were filed later than [Appellant’s]. The time caused by a
co-defendant’s delay is attributable to the other defendant
when it would be duplicative to hold two separate trials, as
the cases share facts and evidence.
(Trial Court Opinion at 6). Here, the record supports the court’s conclusion,
and we cannot say that the court abused its discretion in characterizing this
delay as an excludable period. See Kimbrough, supra; Long, supra.The court scheduled a four-day trial for June 19, 2019. Prior to the trial
date, on June 11, 2019, Appellant’s counsel learned about certain DNA
evidence that the Commonwealth failed to disclose. As the court noted, “This
late-provided DNA evidence resulted in a trial delay for [Appellant], as defense
counsel required sufficient time to analyze the evidence and hire an expert to
review the reports.” (Trial Court Opinion at 7). Thus, the court determined
that the period of delay caused by the late disclosure of this evidence was not
excludable. (See id.)
The court conducted the next pretrial conference on August 6, 2019. At
that time, the court learned that some of the co-defendants had already been
granted continuances by another jurist. Appellant’s counsel testified about
the situation as follows:
We started discussing, because of needing four days, an
October trial date. And at that time [the assistant district
attorney] notified [Co-Defendant Johnson’s attorney] and
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myself in addition to the [c]ourt that Co-Defendant Latisha
… Williams, and there is also Rafiq Sumpter, who at some
point had at least been partially joined into this case,[2] had
just that day requested and been granted 60-day
continuances on their cases despite still being joined to
[Appellant’s].
(N.T. Rule 600 Hearing at 49). Due to the co-defendants’ unavailability, the
court rescheduled trial for December 16, 2019.
Again, the court concluded that the delay occasioned by the co-
defendants’ continuances was excludable:
When the parties appeared before the court on August 6,
2019, a four (4) day trial was scheduled to begin on
December 16, 2019. The December 16, 2019 date was
chosen based upon both the court’s calendar and the August
continuance requests granted on behalf of the co-
defendants. As aforementioned, a co-defendant
continuance request [may be] excludable time. Therefore,
the period of time between August 6, 2019 and December
16, 2019 accounts for an additional one hundred thirty-two
(132) days of excludable time.
(Trial Court Opinion at 7) (internal footnote omitted). This determination does
not constitute an abuse of discretion.3 See Kimbrough, supra; Long,
supra.____________________________________________
2 In his Rule 600 motion, Appellant explained that the Commonwealth initially
joined Mr. Sumpter’s case with Co-Defendants’ cases, but not Appellant’s
case. (See Rule 600 Motion, filed 11/27/19, at ¶37 n.6).
3 To the extent Appellant claims that the Commonwealth misrepresented the
status of Ms. Williams by failing to disclose the proffer letter on an earlier date,
the prosecutor testified that Ms. Williams and Appellant’s cases “were properly
joined and that [the cases] were to follow” each other on a path to trial. (N.T.
Rule 600 Hearing at 21). Additionally, the case against Ms. Williams remained
(Footnote Continued Next Page)
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The following chart summarizes the delays in bringing the case to trial
at that point:
DATES ACTIVITY DAYS EXCLUDABLE ADJUSTED
DELAY RUN DATE
4/11/18- Commonwealth filed criminal 162 No 4/11/19
9/20/18 complaint; court conducted
arraignment; pretrial
conference scheduled
9/20/18- Appellant requested 28 Yes; Appellant 5/9/19
10/18/18 continuance; pretrial conference requested
rescheduled continuance
10/18/18- Appellant requested 29 Yes; Appellant 6/7/19
11/16/18 continuance; pretrial conference requested
rescheduled continuance
11/16/18- Appellant requested 27 Yes; Appellant 7/4/19
12/13/18 continuance; pretrial conference requested
rescheduled continuance
12/13/18- Court conducted pretrial 40 No 7/4/19
1/22/19 conference; case placed on
1/19 trial list; Commonwealth
subsequently filed notice of
joinder of Co-Defendants
1/22/19- Court conducted conference for 140 Yes; delays 11/21/19
6/11/19 call of trial list; trial scheduled caused by Co-
for June 2019 to accommodate Defendants
Co-Defendants could be
attributed to
Appellant
6/11/19- Appellant first learned about 56 No 11/21/19
8/6/19 inadvertently withheld DNA
evidence; defense counsel
required additional time to
____________________________________________
“open” at the time of the Rule 600 hearing, and the prosecutor reiterated that
she “wanted to make sure that everything stayed together and that her case
didn’t get lost in the shuffle….” (Id. at 26).
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analyze the new evidence; case
placed on 8/19 trial list
8/6/19- Trial scheduled for December 132 Yes; delays 04/01/20
12/16/19 2019; date based upon Co- caused by Co-
Defendants’ continuances Defendants
could be
attributed to
Appellant
Here, Appellant filed his Rule 600 motions before the date that we have
calculated as the adjusted run date. Therefore, Appellant did not have a viable
speedy trial claim when he filed the motions to dismiss, and the motions were
premature. See Hunt, supra. We conclude that the court did not abuse its
discretion by denying the Rule 600 motions, and Appellant is not entitled to
relief on his first four claims. See Risoldi, supra; Martz, supra.
In his final issue, Appellant asserts his third Rule 600 motion
“alternatively” argued that the court should grant a continuance to provide
defense counsel with additional time to review new DNA evidence.4
(Appellant’s Brief at 63). Appellant maintains that he needed this time to
____________________________________________
4 The trial court determined that it was “unclear … when [Appellant] requested
a continuance….” (Trial Court Opinion at 8). In reviewing Appellant’s third
Rule 600 motion, we observe that the final paragraph of the seven-page filing
requested dismissal of the charges without expressly stating the need for any
additional relief. (See Supplement to Supplemental Rule 600 Motion, filed
12/12/19, at ¶48). Nevertheless, the motion also stated, “The newly
discovered DNA reports … require defense counsel to again engage an expert
for review and analysis, and therefore a continuance is required for effective
representation.” (Id. at ¶43). We deem this averment sufficient to preserve
Appellant’s claim that he also requested a continuance.
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“consult a DNA expert given the history of incorrect results from the
Commonwealth’s previously chosen DNA lab.” (Id. at 65). Rather than opting
for a continuance, Appellant complains that the court suggested excluding the
evidence and proceeding to trial. Appellant insists, however, that the
exclusion of this evidence was an insufficient remedy. Appellant contends that
he “had a right to have adequate time to prepare a defense” based upon the
evidence at issue. (Id. at 66). Appellant concludes that the court abused its
discretion by denying his request for a continuance. We disagree.
“[T]he grant or denial of a motion for a continuance is within the sound
discretion of the trial court and will be reversed only upon a showing of an
abuse of discretion.” Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super.
2012), appeal denied, 621 Pa. 657, 72 A.3d 603 (2013). “An abuse of
discretion ‘is not merely an error of judgment; rather, discretion is abused
when 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.’” Id. (quoting Commonwealth v.
Randolph, 582 Pa. 576, 583, 873 A.2d 1277, 1281 (2005), cert. denied, 547
U.S. 1058, 126 S.Ct. 1659, 164 L.Ed.2d 402 (2006)).
Additionally, Pennsylvania Rule of Criminal Procedure 573 governs
pretrial discovery violations as follows:
Rule 573. Pretrial Discovery and Inspection
* * *
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(E) Remedy. If at any time during the course of the
proceedings it is brought to the attention of the court that a
party has failed to comply with this rule, the court may order
such party to permit discovery or inspection, may grant a
continuance, or may prohibit such party from introducing
evidence not disclosed, other than testimony of the
defendant, or it may enter such other order as it deems just
under the circumstances.
Pa.R.Crim.P. 573(E).
Instantly, Appellant acknowledges that the court offered to exclude the
evidence at issue as a remedy for any discovery violation. (See Appellant’s
Brief at 65). This remedy is expressly authorized under Rule 573, which gives
trial courts the option of granting a continuance or prohibiting the introduction
of the evidence. See Pa.R.Crim.P. 573(E). Based upon our review of the
record, we cannot say that the court abused its discretion by opting for
exclusion of the evidence, especially where other continuances had already
created speedy trial concerns. See Ross, supra. Therefore, Appellant is not
entitled to relief on his final issue, and we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2022
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