Com. v. Saldivar, S. Sr. ( 2021 )

J-S08038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMUEL JOSEPH SALDIVAR, SR. :
:
Appellant : No. 1008 MDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000176-2018
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 6, 2021
Appellant Samuel Joseph Saldivar, Sr. appeals the judgment of sentence
entered by the Court of Common Pleas of Lycoming County after a jury
convicted Appellant of simple assault and endangering the welfare of a child.
Appellant asserts that the trial court abused its discretion in denying his
motion to dismiss under Pa.R.Crim.P. 600. After careful review, we affirm.
On January 16, 2018, a criminal complaint was filed charging Appellant
with aggravated assault, simple assault, and endangering the welfare of a
child. On January 29, 2018, Appellant proceeded to a preliminary hearing in
which the charges were held for court. On August 2, 2019, Appellant filed a
motion to dismiss pursuant to Rule 600. After a hearing, the trial court denied
the motion on September 23, 2019.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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On October 1, 2019, the parties began the jury selection process. On
December 12, 2019, Appellant was tried before a jury, who acquitted
Appellant of aggravated assault, but convicted him of simple assault and
endangering the welfare of a child. On January 13, 2020, the trial court
sentenced Appellant to an aggregate term of 21-42 months’ incarceration.
Appellant filed a motion for reconsideration, which the trial court denied.
On February 28, 2020, Appellant filed a pro se petition pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant was
appointed counsel, who filed an amended petition alleging that trial counsel
was ineffective in failing to file a direct appeal as Appellant requested. On July
28, 2020, the lower court reinstated Appellant’s right to file a direct appeal.
On August 4, 2020, Appellant’s counsel filed a notice of appeal,
purporting to appeal “from the PCRA Order reinstating direct appeal rights
dated July 28, 2020.” On September 16, 2020, this Court entered a Rule to
Show Cause why the appeal should not be dismissed as Appellant was not an
aggrieved party. On September 22, 2020, Appellant’s counsel filed a
response, admitting her error in stating that the appeal was from the PCRA
order and attaching an amended notice of appeal, stating that the appeal was
taken from the judgment of sentence.
It is well-established that “[i]n a criminal action, appeal properly lies
from the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa.Super.
2001) (en banc) (citing Commonwealth v. Chamberlain, 658 A.2d 395, 397
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(Pa.Super. 1995) (correcting caption to reflect an appeal from the judgment
of sentence when the appellant purported to appeal the denial of his post-
sentence motion).
While Appellant attempted to appeal from the lower court’s order
reinstating his direct appeal rights, this incorrect designation rendered his
appeal defective, but did not invalidate the notice of appeal. See Pa.R.A.P.
902 (“Failure of an appellant to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal ...”). As such, we
amend the caption to reflect an appeal from the judgment of sentence entered
on January 13, 2020.
Appellant’s sole claim on appeal is his challenge to the trial court’s order
denying his motion to dismiss pursuant to Rule 600. Our standard of review
is as follows:
This Court reviews a ruling under Rule 600 pursuant to an abuse-
of-discretion standard. An abuse of discretion is not a mere error
in judgment but, rather, involves bias, ill will, partiality, prejudice,
manifest unreasonableness, or misapplication of law.
Additionally, when considering a Rule 600 claim, this Court must
view the record facts in the light most favorable to the winner of
the Rule 600 motion. It is, of course, an appellant's burden to
persuade us the trial court erred and relief is due.
Commonwealth v. Martz, 232 A.3d 801, 809 (Pa.Super. 2020) (quoting
Commonwealth v. Claffey, 80 A.3d 780, 787 (Pa. Super. 2013) (citations
omitted)).
In reviewing a challenge to the denial of a Rule 600 motion, we are
guided by the following principles:
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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.
Martz, 232 A.3d at 809-810 (citations omitted).
The relevant portion of Rule 600 provides as follows:
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
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commence. Any other periods of delay shall be excluded from the
computation.
...
Pa.R.Crim.P. 600.
Further, our Supreme Court has clarified how a Rule 600 claim must be
analyzed:
By the terms of Rule 600, the Commonwealth must bring a
defendant to trial within 365 days from the date upon which a
written criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).
However, the Rule 600 run date may be adjusted pursuant to the
computational directives set forth in Subsection (C) of the Rule.
For purposes of the Rule 600 computation, “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.” Id. 600(C)(1). “Any other periods of delay,”
including those caused by the defendant, “shall be excluded from
the computation.” Id. 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.
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,” Commonwealth v.
Matis, 551 Pa. 220, 710 A.2d 12, 17 (1998), 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. See Pa.R.Crim.P. 600(D)(1).
Commonwealth v. Barbour, 647 Pa. 394, 399–400, 189 A.3d 944, 947
(2018).
In the instant case, the criminal complaint was filed on January 16,
2018. As noted above, the mechanical run date is calculated by adding 365
days to the day that the criminal complaint was filed. See Pa.R.Crim.P.
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600(A)(2)(a). As such, the mechanical run date in this case was January 16,
2019.
Appellant concedes that a portion of delay should be excluded from the
Rule 600 computation as it was caused by his requests for continuances from
December 14, 2018 to April 29, 2019. However, Appellant argues that the
trial court abused its discretion in finding that the remaining delay occurred
despite the Commonwealth’s due diligence in bringing him to trial. While
Appellant acknowledges that the delay was the result of court congestion and
the fact that the prosecution had no control over the trial judges’ schedules,
Appellant claims the prosecution was required to take affirmative action to get
his case scheduled for trial. We disagree.
Although “time attributable to the normal progression of a case” should
not be deemed delay for Rule 600 calculations, courts must distinguish
between “time necessary to ordinary trial preparation and judicial delay arising
out of the court’s own scheduling concerns.” Commonwealth v. Mills, 640
Pa. 118, 122, 162 A.3d 323, 325 (2017). Our Supreme Court has specifically
recognized that “where a trial-ready prosecutor must wait several months due
to a court calendar, the time should be treated as ‘delay’ for which the
Commonwealth is not accountable.” Id.We find Appellant’s reliance on our Supreme Court’s decision in
Commonwealth v. Hawk, 528 Pa. 329, 597 A.2d 1141 (1991) to be
misplaced. In Hawk, the Supreme Court concluded that the Commonwealth
failed to prove it had acted with due diligence in bringing Appellant to trial
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pursuant to Rule 600 merely because it was ready to proceed throughout the
scheduling of the case. While the Supreme Court acknowledged the
prosecution did not have control over the trial court’s schedule, it found the
Commonwealth failed to take affirmative action to move the case to trial when
the assigned judge was unavailable for several months due to sickness and
vacation time. Id. at 336-337, 597 A.2d at 1145.
In contrast, in this case, Appellant does not suggest what exactly the
prosecution could have done to expedite the scheduling of his trial to an earlier
date. At the Rule 600 hearing, the prosecution presented the testimony of
the Lycoming County deputy court administrator, Eileen Dgien, who shared
extensive detail as to the schedule of the entire trial court bench, not simply
the assigned judge. Ms. Dgien offered specific reasons as to why Appellant’s
case could not be heard at each time period before the adjusted run date.
Moreover, Ms. Dgien explained that the cases that were tried before
Appellant’s case in the disputed time period had earlier run dates for the
purpose of Rule 600. It is logical that the prosecution could not insist that
Appellant’s case be brought to the front to the trial list ahead of other cases
that had more pressing Rule 600 challenges.
Our review of the record shows that the Commonwealth was prepared
to go to trial throughout the contested period and did not request continuances
or delays in trying the case. The record also supports the trial court’s
acceptance of the Commonwealth’s detailed calculation of the adjusted run
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date. As such, we agree that that the circumstances that led to the delay in
scheduling Appellant’s case for trial were beyond the Commonwealth’s control.
Accordingly, we find no error in the trial court’s analysis and, therefore,
conclude the trial court did not abuse its discretion in determining that
Appellant’s trial started before the adjusted run date.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/06/2021
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