Com. v. McKinzie, E. ( 2023 )

J-S33042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EBON S. MCKINZIE SR. :
:
Appellant : No. 317 WDA 2023
Appeal from the Judgment of Sentence Entered January 20, 2023
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002710-2021
BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: November 17, 2023
Appellant, Ebon S. McKinzie appeals from the judgment of sentence
entered in the Court of Common Pleas of Erie County after a jury convicted
him of Firearms not to be Carried Without a License, 18 Pa.C.S. § 6106(a)(2),
and Disorderly Conduct, 18 Pa.C.S. § 5503(a)(2). Sentenced to serve a period
of 15 months’ reporting probation, Appellant contends that the trial court
erred in denying his pretrial motion to dismiss pursuant to Pa.R.Crim.P. 600
and challenges the sufficiency of the evidence offered to prove a violation of
Section 6106(a)(2). We affirm.
On August 13, 2021, a police criminal complaint filed by the City of Erie
Police Department charged Appellant with one count of Firearms not to be
Carried Without a License, a misdemeanor of the first degree, and one count
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S33042-23
of Disorderly Conduct, a summary offense. According to the notes of
testimony from Appellant’s criminal trial, on August 13, 2021, at
approximately 7:00 a.m., police were dispatched to the 700 block of E 13 th
Street for a disturbance involving two men fighting. N.T., 11/16/23, at 24.
Once at the scene, police observed Appellant yelling at another male while
using obscene language. After encountering Appellant and advising him that
he was under arrest, Appellant admitted to possessing a firearm in a closed
compartment underneath the seat of his scooter. N.T. at 32, 51. A search
of the seat compartment revealed a silver Smith & Wesson 9mm handgun
secured inside of a holster that could be used for open or concealed carry
purposes. N.T. at 51. Appellant does not possess a valid and lawfully issued
license to carry a firearm.
A preliminary hearing was scheduled for September 29, 2021, but
Appellant requested a continuance to obtain an attorney. 29 days later, on
October 27, 2021, with counsel present, the preliminary hearing was held,
and all charges were bound over to the court of common pleas.
On April 4, 2022, Appellant indicated his desire to go to trial. The
following day, the Commonwealth requested laboratory results and a licensure
report regarding the firearm found in Appellant’s possession, but they were
unable to acquire them until June 13, 2022, at which time the items were
forwarded to Appellant.
On September 28, 2022, Appellant filed a counseled motion to dismiss
the criminal information filed against him pursuant to Rule 600. By its Order
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of October 17, 2022, however, the trial court determined that the adjusted
run date for Appellant’s trial was November 18, 2022, after 29 days of
Appellant’s excludable time and the Commonwealth’s 69 days of excusable
delay were added to the Rule 600 time computation. Specifically with respect
to the trial court’s determination of excusable delay, the court reasoned:
The 69 days awaiting the lab report and gun license documents
are not attributable to the defendant, but also should not be held
against the Commonwealth. Especially since the Commonwealth
made efforts to obtain the documents sooner. Thus, a total of 98
days shall be excludable from the Rule 600 calculation. Since the
complaint was filed on August 13, 2021, and 98 days are
excluded, the Commonwealth has until approximately November
20, 2022, to bring defendant to trial.
Opinion and Order, 0/17/22, at 1-2. Appellant’s trial ultimately commenced
on November 16, 2022, and a jury convicted Appellant on both charges. On
January 20, 2023, Appellant was sentenced to serve a period of 15 months’
probation. Appellant filed a timely counseled post-sentence motion for
judgment of acquittal on January 30, 2023, which the trial court denied on
March 10, 2023. This timely appeal followed.
Appellant raises the following two issues for this Court’s consideration:
1. Whether the trial court erred in denying the Appellant’s Motion
to Dismiss pursuant to Rule 600?
2. Whether the Commonwealth failed to present sufficient
evidence to prove the charge of Firearms not to be Carried
Without a License beyond a reasonable doubt?
Brief of Appellant, at 3.
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When presented with a speedy trial claim arising under Pennsylvania
Rule of Criminal Procedure 600, our standard of review is well settled:
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]. 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. Bethea, 185 A.3d 364, 370 (Pa. Super. 2018) (citation
and emphases omitted), appeal denied, 656 Pa. 11, 219 A.3d 597 (2019).
The Commonwealth bears the burden of proving, by a preponderance
of evidence, that it acted with due diligence throughout the proceedings. See
Commonwealth v. Kearse, 890 A.2d 388, 393 (Pa. Super. 2005).
Rule 600 provides, in relevant 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). To determine whether Rule
600 has been violated, a “court must first calculate the
‘mechanical run date,’ which is 365 days after the complaint was
filed,” and then must “account for any ‘excludable time’ and
‘excusable delay.’” Commonwealth v. Goldman, 70 A.3d 874,
879 (Pa. Super. 2013). “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(C)(1).
To this end, Rule 600 establishes two requirements that must be
met for delay to count toward the 365-day deadline: (1) the delay
must be caused by the Commonwealth; and (2) the
Commonwealth must have failed to exercise due diligence.
Otherwise, the delay is excluded from the calculation of the run
date. Put differently, where delay is not caused by the
Commonwealth or delay caused by the Commonwealth is not the
result of lack of diligence, it must be excluded from the
computation of the Rule 600 deadline. “Due 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. Selenski, 606 Pa. 51, 994 A.2d 1083, 1089
(2010). Moreover, judicial delay is delay caused by the court,
rather than the Commonwealth, and is likewise excludable if the
Commonwealth exercised diligence during that time. See
Commonwealth v. Harth, --- Pa. ––––, 252 A.3d 600, 603
(2021) (“[A] trial court may invoke ‘judicial delay’ in order to deny
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a defendant's Rule 600 motion to dismiss only after the
Commonwealth has demonstrated that it complied with the due
diligence requirements of Rule 600 at all relevant periods
throughout the life of the case.”).
Commonwealth v. Johnson, 289 A.3d 959, 981–82 (Pa. 2023).
For purposes of Appellant’s speedy trial rights as codified in Pa.R.Crim.P.
600, infra, the mechanical run date in the instant matter was August 13, 2022,
which was 365 days from the date the Erie Police Department filed the present
criminal complaint against him. Within that timeline, the trial court attributed
29 days of excludable time to Appellant for his rescheduling of the preliminary
hearing from September 29, 2021, to October 27, 2021, and 69 days of
excusable delay by the Commonwealth from April 5, 2022, to June 13, 2022,
because, the trial court concluded, as discussed supra, that the
Commonwealth had exhibited due diligence in its “efforts to obtain the
documents sooner.” Upon review of the record, we agree with the trial court’s
assessment.
Accordingly, the trial court excluded a total of 98 days from the Rule
600 computation, which had the effect of pushing the adjusted run date to
November 19, 2022. Because trial commenced prior to this date, on
November 16, 2022, we discern no Rule 600 violation under the facts.
In Appellant’s second issue, he challenges the sufficiency of the evidence
with respect to one element to the Firearms Not to be Carried Without a
License charge he faced at trial. Specifically, Appellant contends that the
Commonwealth failed to establish that he concealed a firearm in any “vehicle”
as that term appears in the statute. We disagree.
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When examining a challenge to the sufficiency of the evidence, we
adhere to the following standard of review:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
[re]weigh the evidence and substitute our judgment for the
factfinder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that[,] as a matter of law[,] no probability of fact
may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact[,] while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part[,] or none of the
evidence.
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation
omitted).
Pursuant to Section 6106(a)(1) of the Crimes Code, “any person who
carries a firearm in any vehicle or any person who carries a firearm concealed
on or about his person, except in his place of abode or fixed place of business,
without a valid and lawfully issued license under this chapter commits a felony
of the third degree.” 18 Pa.C.S. 6106(a)(1). Herein, Appellant argues that
the Commonwealth failed to establish Appellant concealed the firearm inside
any “vehicle”, as he denies there was any evidence offered to substantiate
that his scooter was a “vehicle” for purposes of this statute.
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To support his position, Appellant relies on a definition of “vehicle”
appearing in Chapter 77. “Vehicle Chop Shop and Illegally Obtained and
Altered Property”, which in turn resides in Article G, “Miscellaneous Offenses”
of Title 18. Within that discrete context, the term “vehicle” is defined as:
[e]very device in, upon or by which any person or property is or
may be transported or drawn upon a highway, except devices
used exclusively upon rails or tracks. The term does not include
a self-propelled wheelchair or an electrical mobility device
operated by and designed for the exclusive use of a person with a
mobility-related disability.
18 Pa.C.S. § 7701.1
Even if we were to apply this definition to the case at bar, Appellant
would gain no relief. Appellant posits that there was neither circumstantial
evidence nor direct testimony that Appellant’s scooter was a “vehicle.” The
only time the Commonwealth addressed the issue, he asserts, was during
rebuttal argument to the Appellant’s motion for Judgment of Acquittal before
the trial court, where the prosecutor observed, “You see on the bodycam the
scooter has a license plate. So, with that, the – certainly it’s a vehicle….” N.T.
at 72.
The record shows, however, that Appellant admitted during his trial
testimony that he rode his scooter from his residence to the scene of the
crime, and otherwise used it as a mode of transportation from one place to
another. In this regard, Appellant claimed no physical disability, nor did any
____________________________________________
1 18 Pa.C.S.A. § 7701, “Definitions”, appears within Chapter 77. “Vehicle
Chop Shop and Illegally Obtained and Altered Property” appears within
Article G., “Miscellaneous Offenses of
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evidence suggest that the device was designed for the “exclusive use of a
person with a mobility-related disability.” Of note, moreover, Officer
Sherwood testified before the jury that the scooter had a Pennsylvania license
plate affixed to the back.
When viewed in a light most favorable to the Commonwealth as verdict
winner, which this Court is required to do under our standard of review, the
evidence presented at trial established beyond a reasonable doubt that the
scooter in which Appellant concealed his firearm was a “vehicle” which may
be operated on highways for purposes of the Firearms Not to be Carried
Without a License statute at 18 Pa.C.S.A. § 6106. Accordingly, Appellant
challenge to the sufficiency of the evidence fails.
Judgment of sentence affirmed.
11/17/202311/17/2023
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