Com. v. Shatzer, B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SHANE SHATZER :
:
Appellant : No. 1999 MDA 2019
Appeal from the Judgment of Sentence Entered November 20, 2019
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000706-2018
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 15, 2020
Brian Shane Shatzer (“Shatzer”) appeals from the judgment of sentence
entered following his conviction of drug delivery resulting in death. 1 We
affirm.
In the early morning hours of September 6, 2017, police responded to
a home in Waynesboro, Pennsylvania, based on a report of a possible drug
overdose. Upon arriving, police discovered Samuel Myerly (the “Decedent”)
in an upstairs bedroom in a state of cardiac arrest. The officers found evidence
of recent drug use on the Decedent’s person. The Decedent was later
pronounced dead at a nearby hospital, and a medical examination after his
death determined that he suffered a fatal overdose.
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1 18 Pa.C.S.A. § 2506(a).
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Police interviewed several witnesses, including the resident of the home
at which the Decedent overdosed and two individuals who had been with the
Decedent prior to the Decedent’s overdose. Police also interviewed Shatzer’s
roommate, who told police that he observed Shatzer sell the Decedent
narcotics shortly before he died. A later review of messages on the Decedent’s
cell phone disclosed phone calls and text messages between the Decedent and
Shatzer on the night of the overdose, as well as several text messages
between Shatzer and the Decedent in the days prior to the overdose, wherein
the parties discussed Shatzer selling the Decedent narcotics.
Based upon the foregoing, Shatzer was arrested and charged, on
January 26, 2018, with drug delivery resulting in death. Three days before
trial, Shatzer filed a Motion in limine to exclude evidence related to a series of
telephone calls that Shatzer had placed while in jail, based on the late
disclosure of the evidence by the Commonwealth. The trial court denied the
Motion. A jury subsequently convicted Shatzer of the above-mentioned
offense. The trial court postponed sentencing for the preparation of a pre-
sentence investigation report. On November 20, 2019, the trial court
sentenced Shatzer to 114 to 120 months in prison, with credit for time served.
Shatzer did not file a post-sentence motion. Shatzer filed a timely
Notice of Appeal and, concurrently, a Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
Shatzer raises the following issues for our review:
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1. Did the [t]rial [c]ourt err by denying [Shatzer’s] “Motion to
[e]xclude [e]vidence” pertaining to approximately seven hours of
jail calls made by [Shatzer?]
2. Did the [t]rial [c]ourt err in sustaining the Commonwealth’s
hearsay objection to text messages between the Decedent and a
witness, Rene Sanders[?]
3. Did the [t]rial [c]ourt err in allowing the Commonwealth to
introduce [call detail records (occasionally referred to hereinafter
as “CDRs”)] that were not properly authenticated[?]
4. Did the [t]rial [c]ourt err in allowing the Commonwealth to
introduce text messages between the Decedent and [Shatzer] that
occurred several days before the alleged transaction, and by
allowing, over [Shatzer’s] objection, a police officer’s speculation
as to what the text message[s] meant[?]
5. Did the [t]rial [c]ourt err in denying [Shatzer’s] Motion for a
Mistrial despite the fact that the Commonwealth, during cross-
examination of an incarcerated witness, suggested that [Shatzer]
and the incarcerated witness had opportunities to speak about the
case and coordinate stories while in jail[?]
6. Were [Shatzer’s] rights under Pa.R.Crim.P. [] 600 violated, as
[Shatzer] was greatly prejudiced by the fact that he was appointed
an attorney to whom the [Commonwealth] and [Shatzer’s]
counsel knew had a conflict of interest in his case, which caused
numerous delays to his detriment[?]
Brief for Appellant at 4-5.
First, Shatzer argues that the trial court erred when it denied his Motion
to exclude evidence pertaining to several phone calls that Shatzer had placed
from jail while awaiting trial. Id. at 8. Shatzer claims that the content of the
phone calls, wherein, inter alia, he referred to the Decedent as “being part of
a maggot farm,” demeaned Shatzer’s character. Id. Shatzer asserts that the
Commonwealth, by failing to provide Shatzer with the evidence until the week
before trial, violated Pa.R.Crim.P. 573, which resulted in a “trial by ambush.”
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Id. at 9. According to Shatzer, “[t]he untimely manner in which the call
records were provided to the [d]efense altered the defense strategy and … did
not allow the [d]efense sufficient time to locate and contact potential
witnesses to rebut the presumptions the Commonwealth was making as to the
statements made during said calls.” Id. at 8. Specifically, Shatzer claims that
the Commonwealth’s untimely disclosure of the phone calls “caused [Shatzer]
to rethink whether [he] would testify on his own behalf, and was not afforded
sufficient time to locate those who were on the other end of [his] calls to
ascertain context to the calls and determine said persons’ ability[] to testify.”
Id. at 10.
Pennsylvania Rule of Criminal Procedure 573 provides, in relevant part,
as follows:
Rule 573. Pretrial Discovery and Inspection
***
(B) Disclosure by the Commonwealth
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which
the Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant’s
attorney all of the following requested items or
information, provided they are material to the instant
case. The Commonwealth shall, when applicable,
permit the defendant’s attorney to inspect and copy
or photograph such items.
***
(f) any tangible objects, including documents,
photographs, fingerprints, or other tangible
evidence[.]
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Pa.R.Crim.P. 573(B)(1)(f).
The trial court, in its Opinion, stated the following:
[I]t is clear the [trial c]ourt has discretion to determine the
appropriate remedy based on the circumstances of the particular
case. Here, we found it significant that the evidence was not in
the possession of the Commonwealth until the day it was turned
over to [Shatzer]. Before then, the recordings were in the
possession of the jail, and [Shatzer] could have obtained and
reviewed them as well. Further, we did not hear with any
specificity how [Shatzer] suffered prejudice or how the defense
strategy was altered as a result of the delayed disclosure. We
found these circumstances distinguishable from those in
[Commonwealth v.] Hanford[, 937 A.2d 1094 (Pa. Super.
2007),] and [Commonwealth v.] Ulen[, 650 A.2d 416 (Pa.
1994)], on which [Shatzer] relies. In neither of those cases was
the defendant provided with the recordings of his jail calls prior to
trial.
***
Here, … [Shatzer] was provided [with] the recordings the
week before trial. Thus, if necessary, counsel could have altered
its strategy before it was too late, as it was in [Hanford and
Ulen]. Counsel failed, however, to provide more than vague
assertions that he was unprepared to defend against the evidence
on the tapes. Moreover, after a phone conversation with both
parties when the issue was brought to the [c]ourt’s attention, we
directed the attorney for the Commonwealth to identify to
[Shatzer] the specific portions of the recordings that were going
to be used. The Commonwealth did so on Friday, [September]
27, 2019, three days before trial commenced. Though there was
disagreement about exactly how long the identified portions were,
it was undisputed that [d]efense [c]ounsel was provided the
specific calls with the specific time frames the Commonwealth
sought to introduce at trial. Thus, before trial, the defense was
aware of the exact nature of this evidence.
Trial Court Opinion, 1/14/20, at 5-7 (some paragraphs combined, footnote
and some citations omitted).
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We discern no abuse of discretion by the trial court in its denial of
Shatzer’s Motion, as set forth above, and affirm on the basis of its Opinion
with regard to this issue. See id. at 3-7.
Second, Shatzer argues that the trial court erred when it precluded the
admission at trial of the Decedent’s “sent” and “received” text messages from
the night of the overdose on two separate occasions during his trial. Brief for
Appellant at 11-14. Shatzer attempted to admit the text messages, which the
Decedent had exchanged with a third party, purportedly to demonstrate that
the Decedent had other avenues by which he could have acquired the
narcotics that caused his overdose. Id. at 11-12. Initially, Shatzer proffered
that the messages were admissible under a “res gestae” exception to the
hearsay rule, and that the messages were instructive in order for the jury to
hear “the complete story” of what occurred on the night of the overdose. Id.
at 12-13.
Our review of a trial court’s evidentiary ruling is conducted under an
abuse of discretion standard. Commonwealth v. Woeber, 174 A.3d 1096,
1100 (Pa. Super. 2017). Where the evidentiary ruling involves a question of
law, our scope of review is plenary. Id.Pennsylvania Rule of Evidence 801 provides that hearsay evidence is “a
statement that [] the declarant does not make while testifying at the current
trial or hearing; and [is offered] in evidence to prove the truth of the matter
asserted in the statement.” Pa.R.E. 801. Rule 802 prohibits the admission of
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hearsay evidence, unless a listed exception to the hearsay rule applies.
Pa.R.E. 802.
The concept of res gestae was a common law hearsay exception that
included several, discrete exceptions to the hearsay rule: (1) declarations as
to present bodily conditions; (2) declarations of present mental states and
emotions; (3) excited utterances; and (4) declarations of present sense
impressions. Commonwealth v. Hood, 872 A.2d 175, 182 (Pa. Super. 2005)
(citing Commonwealth v. Pronkoskie, 383 A.2d 858, 860 (Pa. 1978)).
Here, Shatzer does not argue that the evidence at issue falls within any
one of the four categories encompassed in the res gestae exceptions to the
hearsay rule; rather, Shatzer argues that the text messages were necessary
to allow the jury to discern the “full picture” of the events in question. See
Brief for Appellant at 12-14.2 However, this is not a recognized exception to
the rule against hearsay evidence. See Pa.R.E. 803 (detailing the exceptions
to the hearsay rule). Accordingly, because Shatzer failed to demonstrate that
a recognized exception to the rule against hearsay applied to the text
messages he sought to admit, the trial court did not abuse its discretion in
sustaining the Commonwealth’s objection. See Pronkoskie, supra.
____________________________________________
2 We note that this argument would constitute a “special circumstance” in
which prior bad acts evidence may be admitted under Pa.R.E. 404, rather than
an exception to the hearsay rule under Pa.R.E. 801. See Commonwealth v.
Lark, 543 A.2d 491, 497 (Pa. 1988) (explaining the res gestae exception to
the prohibition against prior bad acts evidence).
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Shatzer also argues that the trial court improperly sustained an
objection related to the testimony of Detective Travis Carbaugh (“Detective
Carbaugh”), the detective who investigated the Decedent’s overdose. Brief
for Appellant at 12-14. In a second attempt to introduce the text messages,
Shatzer claimed that the evidence was admissible through the testimony of
Detective Carbaugh. Id. at 12. Shatzer argues that the messages were
admissible to rebut Detective Carbaugh’s testimony about the Decedent’s
ability to access drugs from sources other than Shatzer. Id.
Pennsylvania Rule of Evidence 607 states that “[t]he credibility of a
witness may be impeached by any evidence relevant to that issue, except as
otherwise provided by statute or these rules.” Pa.R.E. 607. The Comment to
Rule 607 notes that any evidence offered to impeach the credibility of a
witness must meet the threshold for relevancy under Pa.R.E. 401. Pa.R.E.
607 cmt.; see also Pa.R.E. 401 (stating that evidence is relevant if it “has
any tendency to make a fact more or less probable than it would be without
the evidence[,] and [] the fact is of consequence in determining the action.”).
Further, our Supreme Court has noted that “reviewing courts should be wary
of proffered bases for admission that may be pretexts for getting fact-bound
evidence admitted for a substantive purpose.” Commonwealth v. Koch, 106
A.3d 705, 715 (Pa. 2014).
We conclude that the trial court did not abuse its discretion in sustaining
the Commonwealth’s objection during Shatzer’s cross-examination of
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Detective Carbaugh. Shatzer purportedly sought to introduce the text
messages to dispute Detective Carbaugh’s testimony that the Decedent had
not discussed drug use with anyone other than Shatzer shortly before the
overdose. Brief for Appellant at 12. However, our review of the record
discloses that Detective Carbaugh had not made that representation. Rather,
Detective Carbaugh testified that he found no indication that the Decedent
had met anyone to buy controlled substances, other than Shatzer, in close
temporal proximity to the overdose. N.T., 10/1/19, at 140. Accordingly, the
text messages, which purportedly show the Decedent discussing drug use with
parties other than Shatzer, was not relevant to Detective Carbaugh’s
testimony that the Decedent did not discuss drug sales with anyone other than
Shatzer in the time surrounding his death. Consequently, the trial court did
not abuse its discretion in precluding the introduction of the text messages on
the basis of relevance. See Pa.R.E. 607(b); Pa.R.E. 401.
In his third claim, Shatzer argues that the trial court erred when it
improperly admitted evidence from the Decedent’s cell phone, as obtained
from the Decedent’s cellular service provider. Brief for Appellant at 14.
Shatzer claims that the police officer’s testimony that the phone records were
true and accurate did not constitute proper authentication under Pa.R.E. 901
and 902, as the officer could not personally testify as to how the phone records
were generated and the process undertaken by the phone company. Id. at
14-16. Shatzer alleges that this improper authentication was not harmless
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error, because the phone records were the only non-controverted evidence
connecting the Decedent to Shatzer on the night of the overdose. Id. at 16.
“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion.” In Interest of F.P., 878 A.2d 91, 94 (Pa. Super. 2005).
Authentication of evidence is codified in Pa.R.E. 901, which provides, in
pertinent part, that “[t]he requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.”
Pa.R.E. 901(a). Testimony of a witness with personal knowledge that a matter
is what it is claimed to be can be sufficient. See Pa.R.E. 901(b)(1). Evidence
that cannot be authenticated by a knowledgeable person, pursuant to
subsection (b)(1), may be authenticated by other parts of subsection (b),
including circumstantial evidence pursuant to subsection (b)(4). See Pa.R.E.
901(b)(4) (stating that authentication may be satisfied by “[t]he appearance,
contents, substance, internal patterns, or other distinctive characteristics of
the item, taken together with all the circumstances.”); see also Koch, 106
A.3d at 712-13 (stating that evidence may be authenticated by circumstantial
evidence). “[A]uthentication generally entails a relatively low burden of proof;
in the words of Rule 901 itself, simply evidence sufficient to support a finding
that the item is what the proponent claims.” Commonwealth v. Murray,
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174 A.3d 1147, 1157 (Pa. Super. 2017) (citation and quotation marks
omitted).
The trial court addressed the authentication of the phone records at trial
as follows:
[The Commonwealth] sought to authenticate the phone records
by certification. Specifically, the Commonwealth entered into
evidence a series of documents from Sprint, Commonwealth’s
Exhibit 18, that were attached to the [phone] records received by
law enforcement. We found the documents to indicate the
records’ reliability for several reasons. The [phone] records and
the documents were sent in response to a court [O]rder for the
records. The cover page is dated September 13, 2017,
approximately a week after [Decedent]’s death, while law
enforcement was actively investigating [Decedent]’s death. The
cover page was addressed specifically to Scott Mummert, Franklin
County District Attorney, and indicated it was sent pursuant to
request in case number MD 3172017. It was signed by Donesha
Robinson from Subpoena Compliance at Sprint Corporate
Security, with her contact information also listed therein.
The documents additionally provide account details,
subscriber details, and other identifying information for the
[Decedent]’s account. Several of the documents describe the
process used by Sprint to compile the call information and produce
the records ….
Further, the Commonwealth showed Detective Carbaugh
the documents and questioned him, outside the presence of the
jury, as to their authenticity. Detective Carbaugh testified he was
aware a request had been made for CDRs for the [Decedent]’s
phone; he indicated the request was signed by a judge of the
Court of Common Pleas in Franklin County. He identified
Commonwealth’s Exhibit 18 as the standard documents the police
receive whenever they request CDRs from the phone company.
Detective Carbaugh further stated he reviewed the CDRs and
determined the information provided therein coincides with
everything he discovered during the investigation and heard at
trial. He concluded he has no doubt the CDRs being offered were
those requested by the court order. Based on the foregoing, we
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concluded the CDRs were sufficiently trustworthy and reliable, and
overruled [Shatzer]’s objection for lack of authentication.
Trial Court Opinion, 1/14/20, at 13-15 (some paragraphs combined).
We conclude that the trial court did not abuse its discretion in
determining that the CDRs were properly authenticated through Detective
Carbaugh’s testimony, and affirm on the basis of the trial court’s Opinion, as
set forth above, with regard to this claim. See id.; see also Koch, 106 A.3d
at 712-13.3
In his fourth claim, Shatzer argues that the trial court erred when it
admitted several text messages between the Decedent and Shatzer prior to
the night of the overdose. Brief for Appellant at 17. Shatzer claims that
several of the text messages were inadmissible as evidence of prior bad acts
(i.e., that Shatzer had delivered narcotics to the Decedent on other
occasions). Id. at 17-18. Shatzer asserts that the trial court erred when it
found that the text messages at issue were part of a single transaction, rather
than two separate transactions. Id. Shatzer further claims that the text
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3 Further, as the trial court noted in its Opinion, even if the phone records
were improperly authenticated, it would constitute harmless error, as the
phone records only contained phone numbers, the time and length of
communications, and whether the communications were a call or a text. Trial
Court Opinion, 1/4/20, at 15. The Commonwealth presented other
sufficiently-authenticated evidence, from the Decedent’s cell phone and in the
form of witness testimony, connecting Shatzer to the Decedent near the time
of his death. Id. at 15-17.
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messages were not properly admitted under Pa.R.E. 404. Brief for Appellant
at 18-19.
Rule 404 generally prohibits “[e]vidence of a crime, wrong, or other act”
when such evidence is offered to show “that on a particular occasion the
person acted in accordance with the character” shown by that crime, wrong,
or other act. Pa.R.E. 404(b)(1). There are, however, exceptions to this
prohibition, and “[t]his evidence may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2).
Our Supreme Court has consistently recognized that admission of
distinct bad acts may be proper where it is part of the history or natural
development of the case, i.e., the res gestae exception. Commonwealth v.
Sherwood, 982 A.2d 483, 497 (Pa. 2009); Lark, supra. “The ‘res gestae’
exception to the general proscription against evidence of other crimes, is also
known as the “complete story” rationale, i.e., evidence of other criminal acts
is admissible to complete the story of the crime on trial by proving its
immediate context of happenings near in time and place.” Lark, supra
(citations and quotation marks omitted).
At trial, the Commonwealth sought to introduce text messages sent
between the Decedent and Shatzer the day before the Decedent’s overdose.
Specifically, at 7:51 p.m., on September 4, 2017, the Decedent texted
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Shatzer, “I can’t talk but I still need ps if u got any let me know plz[.]”4 N.T.,
10/1/19, at 139. At 7:52 p.m., Shatzer responded, “I have[,] call me[.]” Id.
At 7:55 p.m., the Decedent sent, “okay, you got the same and 15 of them[.]”
Id. At 7:56 p.m., the Decedent texted again, “give me a min I’ll walk
outside[.]” Id.
The record does not reveal any further communication between the
Decedent and Shatzer until the next day, on September 5, 2019, at 6:33 p.m.,
when the Decedent texted Shatzer, “On way can u do me 4 100 just asking
I’m come down[.]” Id. at 134. Additionally, Shatzer called the Decedent at
7:05 p.m. for approximately three minutes; at 9:22 p.m., the Decedent called
Shatzer for approximately one minute; at 10:11 p.m., Shatzer called the
Decedent for approximately one minute; at 10:26 p.m., the Decedent called
Shatzer for approximately 30 seconds; and at 10:29 p.m., the Decedent called
Shatzer again for approximately 30 seconds. Id. at 130-31. The trial court
concluded that the text messages were part of the same, single, transaction
that ultimately resulted in the overdose, and overruled Shatzer’s objection.
Id. at 137-38.
Based upon the foregoing, the trial court did not abuse its discretion
when it concluded that the September 4, 2019 text messages were admissible
as part of the same transaction. See Sherwood, supra; Lark, supra.
____________________________________________
4 Detective Carbaugh testified that, based on his experience, “ps” was most
likely a reference to pills. N.T., 10/1/19, at 139.
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In his fifth claim, Shatzer argues that the trial court erred in denying his
Motion for a Mistrial, after the Commonwealth, during its cross-examination
of a defense witness, stated that Shatzer was in jail as the trial was taking
place. Brief for Appellant at 19. Shatzer alleges that the Commonwealth’s
error in questioning the witness, so as to elicit evidence of Shatzer’s
incarceration, caused him prejudice and warranted a mistrial. Id. at 19-20.
Further, Shatzer claims that the trial court placed him in a “situation of
juxtaposition,” wherein any curative instruction would have brought the jury’s
attention to the remark. Id. at 21.
[T]he decision to declare a mistrial is within the sound
discretion of the trial court and will not be reversed absent a
flagrant abuse of discretion. A mistrial is an extreme remedy that
must be granted only when an incident is of such a nature that its
unavoidable effect is to deprive defendant of a fair trial.
Commonwealth v. Szakal, 50 A.3d 210, 218 (Pa. Super. 2012).
It is well settled that evidence of crimes unrelated to the charge for
which a defendant is being tried is generally inadmissible. Commonwealth
v. Martin, 387 A.2d 835, 838 (Pa. 1978). However, “there is no rule in
Pennsylvania which prohibits reference to a defendant’s incarceration awaiting
trial or arrest for the crimes charged.” Commonwealth v. Johnson, 838
A.2d 663, 680 (Pa. Super. 2003); see also Commonwealth v. Wilson, 649
A.2d 435, 445-46 (Pa. 1994) (determining that a reference to the defendant
being in prison was not prejudicial when the reference “did not either expressly
or by reasonable implication convey the fact of a prior criminal offense
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unrelated to the criminal episode for which [the defendant] was then on trial.”)
(citation omitted).
We are further cognizant that defense counsel may decide to forego
curative instructions to avoid drawing attention to the prejudicial remark. See
Commonwealth v. Johnson, 668 A.2d 97, 104 (Pa. 1995) (stating that,
when the trial court offered a curative instruction and defense counsel refused,
“[a]ppellant [could not] claim the trial court erred in refusing to take an action
when the basis for the court’s inaction was counsel’s failure to pursue the offer
of the curative instruction.”). “When counsel chooses to refuse appropriate
curative instructions for this legitimate tactical reason, the defense may not
plead prejudice on appeal.” Commonwealth v. Miller, 481 A.2d 1221, 1223
(Pa. Super. 1984) (citation omitted).
Here, the Commonwealth questioned the witness during cross-
examination regarding his recent contact with Shatzer, resulting in the
following exchange:
[Commonwealth:] You had a decent amount of time to see
[Shatzer] lately; correct?
[Witness:] They won’t let me around him.
[Commonwealth:] All right. What do you mean they won’t let
you around him?
[Witness:] They have us on separation so we can’t, you know,
talk, I guess.
N.T., 10/2/19, at 54.
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Although the witness’s reference to Shatzer being “on separation” could
have been interpreted by the jury as a reference to Shatzer being in jail, there
was no testimony giving rise to an inference that Shatzer was detained for
other criminal conduct. Accordingly, we discern no abuse of the trial court’s
discretion in denying Shatzer’s Motion for a Mistrial. See Johnson, supra;
Wilson, supra. Further, because Shatzer specifically refused the trial court’s
offer to provide a curative instruction, and a curative instruction could have
allayed any prejudice, Shatzer may not now raise prejudice on appeal. See
Miller, supra.In his sixth claim, Shatzer argues that his rights under Pa.R.Crim.P. 600
were violated. Brief for Appellant at 21. Shatzer claims that he was deprived
of a right to a trial within 365 days of his January 26, 2018, arrest and
detention, as his trial began on September 30, 2019, 616 days after his arrest.
Id. at 21-22. Specifically, Shatzer directs our attention to the 209-day period
between his arrest date and August 23, 2018, the date that Shatzer’s original
appointed counsel withdrew from representation. Shatzer states that, during
this time, his appointed defense counsel suffered from a conflict of interest
known to the Commonwealth. Id at 22. Therefore, Shatzer argues, the delay
was attributable to the Commonwealth. Id.
Rule 600 provides, in relevant part, as follows:
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial
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(1) For the purposes of this rule, trial shall be deemed
to commence on the date the trial judge calls the case
to trial, or the defendant tenders a plea of guilty or
nolo contendere.
(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.
***
(B) Pretrial Incarceration. Except in cases in which the defendant
is not entitled to release on bail as provided by law, no defendant
shall be held in pretrial incarceration in excess of
(1) 180 days from the date on which the complaint is
filed[.]
***
(D) Remedies
(1) When the defendant has not been brought to trial
within the time periods set forth in paragraph (A), at
any time before trial, the defendant’s attorney, or the
defendant if unrepresented, may file a written motion
requesting that the charges be dismissed with
prejudice on the ground that this rule has been
violated. A copy of the motion shall be served on the
attorney for the Commonwealth concurrently with
filing. The judge shall conduct a hearing on the
motion.
(2) Except in case in which the defendant is not
entitled to release on bail as provided by law, when a
defendant is held in pretrial incarceration beyond the
time set forth in paragraph (B), at any time before
trial, the defendant’s attorney, or the defendant if
unrepresented, may file a written motion requesting
that the defendant be released immediately on
nominal bail subject to any nonmonetary conditions of
bail imposed by the court as permitted by law. A copy
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of the motion shall be served on the attorney for the
Commonwealth concurrently with filing. The judge
shall conduct a hearing on the motion.
Pa.R.Crim.P. 600.
In this case, Shatzer failed to file a motion to dismiss his charges,
pursuant to Rule 600(D)(1), prior to the commencement of his trial.5 Thus,
the trial court was deprived of the opportunity to conduct a hearing on, or
even consider, Shatzer’s Rule 600 claim. Consequently, Shatzer’s claim is
waived.6 See Commonwealth v. Brock, 61 A.3d 1015, 1020 (Pa. 2013)
(stating that “a motion to dismiss pursuant to [Rule] 600 must be made in
writing, and a copy of such motion must be served on the Commonwealth’s
attorney”); Commonwealth v. Fooks, 497 A.2d 1346, 1350 (Pa. Super.
1985) (determining that “the appellee’s failure to file a timely motion to
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5 Shatzer argues that his right to a speedy trial was violated under Rule
600(A). See Brief for Appellant at 22 (arguing that “Rule 600 … demand[s]
dismissal of the charges, or alternatively [a] remand to conduct an evidentiary
hearing as to the cause and effect of the inappropriate appointment.”
(emphasis added)). The remedy for a violation of paragraph (A) is dismissal.
By contrast, the remedy afforded for a violation paragraph (B) is release on
nominal bond before trial. See Commonwealth v. Murray, 879 A.2d 309,
314 (Pa. Super. 2005) (stating that “other than release on nominal bail, no
other remedy is prescribed for defendants incarcerated for less than three
hundred sixty-five days, even if they were not, in fact, released on nominal
bail.”).
6 Even if Shatzer had properly filed a motion to dismiss the charges pursuant
to Rule 600, we would conclude that his claim lacks merit. Shatzer’s counsel
had requested to withdraw from representation based upon a conflict of
interest. Therefore, the ensuing delay was attributable, in part, to Shatzer,
as he was unprepared to proceed, given the lack of representation. As such,
we would conclude that the delay was not attributable to the Commonwealth.
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J-A16040-20
dismiss prior to the commencement of trial renders his Rule [600] claim
waived, and, in effect, super[s]edes any alleged impropriety on the part of the
Commonwealth.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2020
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