Com. v. Harris, D. ( 2023 )

J-S33029-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID HARRIS :
:
Appellant : No. 30 WDA 2023
Appeal from the Judgment of Sentence Entered December 2, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001490-2022
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID HARRIS :
:
Appellant : No. 31 WDA 2023
Appeal from the Judgment of Sentence Entered December 2, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002715-2021
BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 8, 2023
David Harris (Appellant) appeals from the judgments of sentence
entered, across two dockets, in the Erie County Court of Common Pleas,
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S33029-23
following his jury convictions of assault by life prisoner1 and related offenses.2
Appellant avers the trial court erred in denying his Pa.R.Crim.P. 600 speedy-
trial motion. First, he contends the delay in holding the preliminary
arraignment, due to technical issues with video-conferencing equipment,
should have been attributed to the Commonwealth. Second, Appellant
maintains that after the initial charge of assault by life prisoner was dismissed
for lack of evidence, the Commonwealth failed to exercise due diligence when
it did not refile the charge for almost five months, and thus the run date should
be the date of the initial filing of the charge. We agree with the trial court
that even if it accepted both of Appellant’s arguments, trial commenced 13
____________________________________________
1 18 Pa.C.S. § 2704 (“Every person who has been sentenced to death or life
imprisonment . . . in this Commonwealth . . . who commits an aggravated
assault . . . by any means of force likely to produce serious bodily injury, is
guilty of a crime, the penalty for which shall be the same as the penalty for
murder of the second degree.”).
2 As we discuss infra, following the preliminary hearing, three charges were
initially held over for court and filed at trial docket CP-25-CR-0002715-2021
(the 2021 Docket), while one charge was dismissed, but later refiled at trial
docket 25-CR-0001490-2022 (the 2022 Docket).
Furthermore, we note Appellant has properly filed separate notices of
appeal at docket. See Commonwealth v. Walker, 185 A.3d 969, 971 (Pa.
2018) (separate notices of appeal must be filed when a single order resolves
issues arising on more than one trial court docket), overruled in part,
Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021) (reaffirming that
Pa.R.A.P. 341 requires separate notices of appeal when single order resolves
issues under more than one docket, but holding Pa.R.A.P. 902 permits
appellate court to consider appellant’s request to remediate error when notice
of appeal is timely filed). See also Pa.R.A.P. 902 (amended May 18, 2023).
-2-
J-S33029-23
days after the adjusted run date, and the court showed it had scheduling
conflicts that prevented trial from commencing sooner. Thus, we affirm.
On October 26, 2020, Appellant was serving a life sentence at SCI
Albion. He got into an argument with an inmate who was using the particular
telephone Appellant wished to use. N.T. Jury Trial Day 1 – Morning, 9/21/22,
at 28-29. A corrections officer heard a “loud click like someone got hit,” looked
over, and saw the inmate fall to the ground and Appellant “stomp on his head.”
Id. at 30. The victim suffered, inter alia, a concussion and multiple extensive
facial fractures, which required surgery. N.T. Jury Trial Day 1 – Afternoon
Session, 9/21/22, at 25-26.
On July 21, 2021, a police criminal complaint was filed, charging
Appellant with assault by life prisoner — the most serious offense herein, as
a conviction carried a mandatory sentence of life imprisonment3 — as well as
assault by prisoner, aggravated assault, and simple assault.4
A preliminary arraignment was initially scheduled for July 26, 2021, but
was not held until September 7th. See Magisterial District Judge 06-3-08,
Criminal Docket at 1. This delay, which we calculate to be 43 days,5 was due
____________________________________________
3 See 18 Pa.C.S. § 2704.
4 18 Pa.C.S. §§ 2703(a)(1)(i), 2702(a)(1), 2701(a)(1), respectively.
5 As we discuss infra, Appellant repeatedly refers to this period, between the
originally scheduled preliminary arraignment date (July 26, 2021,) and the
actual hearing date (September 7th,) to be 48 days long. See Appellant’s
(Footnote Continued Next Page)
-3-
J-S33029-23
to “issues with the Polycom equipment” that would enable Appellant to appear
by video for the proceeding. See Opinion & Order, 9/22/22, at 1.
A preliminary hearing was held on October 21, 2021.6 Apparently, the
Commonwealth did not appear. See N.T., 9/20/22, at 3. A state trooper
affiant did appear, but “did not enter . . . information” that Appellant was
serving a life sentence. See id. at 9, 12. The magisterial district court thus
dismissed the assault by life prisoner charge, but held over the remaining
charges for court. These held over charges were filed at the 2021 Docket.
The Commonwealth refiled the assault by life prisoner charge on March
17, 2022 — 147 days, or almost five months, after the dismissal of the initial
charge. This charge was filed at the 2022 Docket.
Eventually, a joint trial for the two dockets was scheduled for the
September 2022 term. Order, 8/4/22. On September 8 and 9, 2022,
Appellant filed separate Pa.R.Crim.P. 600 motions, at each docket, to dismiss
the charges.
____________________________________________
Brief at 13; N.T. Motion to Dismiss, 9/20/22, at 3; Appellant’s Motion to
Dismiss, 2021 Docket, 9/8/22, at 4 (unpaginated); Appellant’s Motion to
Dismiss, 2022 Docket, 9/9/22, at 2 (unpaginated). We instead calculate it to
be 43 days. In any event, we note there are 48 days from the filing of the
complaint to the preliminary arraignment.
6 The certified record does not include a transcript for the preliminary hearing,
and there is no indication in the trial docket that the transcript was requested.
Nevertheless, we glean the above undisputed statements about the
preliminary hearing from the notes of testimony of the Rule 600 motion
hearing. See N.T., 9/20/22, at 3, 9, 12.
-4-
J-S33029-23
On the day scheduled for trial, September 20, 2022, the trial court
conducted a hearing on the Rule 600 motions. Appellant first argued the
Commonwealth failed to act with due diligence when: it could have “handled”
the preliminary hearing itself in a diligent manner; and it did not refile the
assault by life prisoner charge for four months, despite the lack of “essentially
[any] change in the circumstances.” N.T., 9/20/22, at 9-10. We note that in
his written motion, Appellant also averred the run date for this charge should
be the date of the initial complaint filing — July 21, 2021. Appellant’s Motion
to Dismiss, 2022 Docket, at 2. Furthermore, Appellant alleged the “48 day[
]” delay, between the originally scheduled date of the preliminary arraignment
and the actual date of that proceeding, should be attributed to the
Commonwealth, “as the use of the PolyCom equipment [was] solely for [its
benefit] in alleviating it of the burden of transporting a defendant in person to
court hearings.” Appellant’s Motion to Dismiss, 2021 Docket, at 4.
The Commonwealth responded that: it did not learn of the dismissed
charge until December of 2021; in January of 2022, it communicated with
defense counsel, who did not agree to the Commonwealth’s “add[ing] the
charge back;” and thus the Commonwealth contacted the officer. N.T.,
9/20/22, at 3-4. The officer then refiled the assault by life prisoner charge on
March 17, 2022. See id. at 4. Meanwhile, the Commonwealth explained, it
held the advancement of the 2021 Docket case, so that the new charge could
-5-
J-S33029-23
“catch up.” Id. Appellant responded it was “not fair to say that the
Commonwealth was unaware” of the dismissal of the charge. Id. at 9.
After hearing the parties’ arguments, the trial court denied Appellant’s
motions to dismiss. First, it reasoned the technical issues with the Polycom
equipment were not due to any fault on the Commonwealth’s part, and thus
that delay was not chargeable against the Commonwealth. Opinion & Order
at 1-2. Second, the trial court found there was no evidence the
Commonwealth did not exercise due diligence in prosecuting the first
complaint, and thus the run date for the refiled charge was the date of the
second filing (March 17, 2022). Id. at 2, citing Commonwealth v. Peterson,
19 A.3d 1131, 1141 (Pa. Super. 2011) (en banc) (“Where the Commonwealth
exercises due diligence in prosecuting the original criminal complaint, the
time period between the dismissal of the first complaint and the re-filing of
the second complaint is irrelevant for purposes of Rule 600 and the
Commonwealth is only required to re-file within the applicable statute of
limitations.”) (emphasis added). Finally, the court found there was no
prejudice to Appellant, who was already serving a life sentence. Opinion &
Order at 3.
-6-
J-S33029-23
A jury trial commenced that same day, September 20, 2022.7 Appellant
was found guilty of all charges: assault by life prisoner, assault by prisoner,
aggravated assault, and simple assault.
On December 2, 2022, the trial court imposed the statutorily mandated
sentence of life imprisonment for assault by life prisoner, and found the
remaining offenses merged with this charge for sentencing purposes. See
Sentencing Order, 2021 Docket, 12/2/22. However, on January 3, 2023, the
court issued a modified sentencing order, removing the finding of merger for
the remaining offenses and simply imposing no further penalty. Modified
Sentencing Order, 2021 Docket, 1/3/23.
Appellant filed timely, separate notices of appeal at each docket, and
complied with the trial court’s orders to file Pa.R.A.P. 1925(b) statements of
errors complained of on appeal.
Appellant presents one issue for our review:
Whether the trial court erred in denying . . . Appellant’s motion to
dismiss pursuant to Rule 600?
Appellant’s Brief at 4.
At this juncture, we consider the applicable standard of review:
____________________________________________
7 Appellant contends his trial commenced on September 21, 2022. Appellant’s
Brief at 13. However, the comment to Rule 600 provides that a trial
commences when, inter alia, “the trial judge determines that the parties are
present and directs them to proceed to voir dire or to opening argument.”
Pa.R.Crim.P. 600, comment. As jury selection began September 20th, that
is the date trial commenced for Rule 600 purposes.
-7-
J-S33029-23
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.
Commonwealth v. Carl, 276 A.3d 743, 748 (Pa. Super. 2022) (citation
omitted), appeal denied, 292 A.3d 839 (Pa. 2023).
This Court has explained:
[Rule] 600 provides 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). [However,] “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).
Carl, 276 A.3d at 749.
First, a trial court shall determine the mechanical run date, which “is
calculated by adding 365 days to the date the criminal complaint is filed.” See
Peterson, 19 A.3d at 1137 n.6; Carl, 276 A.3d at 749.
“Second, we determine whether any excludable time exists pursuant to
Rule 600(C). We add the amount of excludable time, if any, to the mechanical
run date to arrive at an adjusted run date.” Carl, 276 A.3d at 749 (citation
omitted).
“Excludable time” is defined . . . as . . . any period of time for
which the defendant expressly waives Rule 600; and/or such
-8-
J-S33029-23
period of delay at any stage of the proceedings as results from:
(a) the unavailability of the defendant or the defendant’s attorney;
(b) any continuance granted at the request of the defendant or
the defendant’s attorney.” . . .
Peterson, 19 A.3d at 1137 (citation omitted). Additionally, “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.” Carl, 276 A.3d
at 749, citing Pa.R.Crim.P. 600(C)(1).
Finally,
[i]f the trial takes place after the adjusted run date, we
apply the due diligence analysis set forth in Rule
600([D]). . . . Rule 600[ ] encompasses a wide variety
of circumstances under which a period of delay was
outside the control of the Commonwealth and not the
result of the Commonwealth’s lack of diligence. Any such
period of delay results in an extension of the run date.
Addition of any Rule 600[ ] extensions to the adjusted
run date produces the final Rule 600 run date. If the
Commonwealth does not bring the defendant to trial on
or before the final run date, the trial court must dismiss
the charges.
Carl, 276 A.3d at 749 (some citations omitted). “The Commonwealth bears
the burden of proving, by a preponderance of evidence, that it acted with due
diligence throughout the proceedings.” Id. at 748 (citation omitted).
We also consider the dual public policy concerns behind Rule 600:
(1) the protection of the accused’s speedy trial rights, and (2) the
protection of society. . . .
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
-9-
J-S33029-23
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.
Carl, 276 A.3d at 748 (citation omitted).
Initially, we calculate that at the 2021 Docket, the Commonwealth filed
a complaint on July 21, 2021, and trial commenced 426 days later, on
September 20, 2022. On appeal, Appellant challenges only two periods of
delay: (1) the 43-day delay in the preliminary arraignment, caused by issues
with the Polycom equipment; and (2) the almost five month lapse between
the dismissal of the assault by life prisoner charge and the refiling of it. We
address these claims seriatim.
First, Appellant reiterates his argument that the “48 day[ ]” delay in the
preliminary arraignment, caused by “technical difficulties” with the video
conferencing equipment, should be attributed to the Commonwealth because
the use of the equipment is solely for the Commonwealth’s benefit “in not
having to transport [him] to in-person hearings.” Appellant’s Brief at 13.
Appellant further reasons the Commonwealth could have exercised due
diligence by transporting him “at any point between July 28[ ] and September
7.” Id. We conclude no relief is due.
As stated above, the trial court found the technical issues with the
Polycom equipment were not caused by any “fault of the Commonwealth.”
Opinion & Order at 1. Appellant does not dispute this finding. Instead, he
- 10 -
J-S33029-23
argues the delay should nevertheless be attributed to the Commonwealth
because it solely benefitted from the equipment. However, Appellant cites no
legal authority, and we have discovered none, for his proposition — that when
videoconferencing equipment or other technology, which belongs to and is
maintained and controlled by the trial court, benefits one party over the other,
any delays caused by malfunctioning of the equipment is attributable to that
party for Rule 600 purposes. See Pa.R.A.P. 2119(a) (argument shall include
“such discussion and citation of authorities as are deemed pertinent”).
Appellant likewise presents no authority to support his underlying premise —
that not having to transport a defendant from prison to the court is a “benefit”
conferred upon the Commonwealth. Accordingly, no relief is due on these
grounds.
Furthermore, Appellant provides no support for his bald contention that
the Commonwealth could have simply transported him to the trial court “at
any point.” See Appellant’s Brief at 13. He cites no evidence the court and
the parties considered any feasible earlier preliminary arraignment date, that
was amenable to the trial court and both parties. For all the foregoing
reasons, we do not disturb the trial court’s finding that the 43 day-delay,
caused by PolyCom equipment issues, was not attributable to either party.
See Carl, 276 A.3d at 748.
Next, Appellant reiterates his claim that the refiled charge of assault by
life prisoner should have the same mechanical run date as that for the
- 11 -
J-S33029-23
originally filed complaint, July 21, 2022. See Appellant’s Brief at 13. In
support, Appellant again avers the Commonwealth failed to exercise due
diligence after the October 21, 2021, dismissal of the charge, when it did not
refile the charge until five months later, on March 17, 2022. See id. at 13-
15. Appellant claims there were no circumstances preventing the refiling of
the charge, and “the Commonwealth acted with evasive intent in attempting
to circumvent the [Rule 600] time constraints.” See id. at 15-16. Appellant
thus claims this passage of time is attributable to the Commonwealth. Id. at
14. Additionally, Appellant cites the Commonwealth’s prior motion to continue
trial for the first docket “so that the [second docket] could ‘catch up’ with” it.
Id. at 13-14. We do not reach the merits of this claim, as we may affirm the
court’s order on the basis of Appellant’s next argument.8
In his third argument, Appellant contends that even if the trial court
were to exclude the “48 day[ ]” delay caused by the Polycom equipment
issues, and the Rule 600 calculations began on the date the first complaint
was filed, the adjusted run date would be September 7th, but he was not
____________________________________________
8 “We can affirm the trial court’s decision if there is any basis to support it.”
Commonwealth v. Sunealitis, 153 A.3d 414, 423 (Pa. Super. 2016).
- 12 -
J-S33029-23
brought to trial until September 20th.9 Appellant’s Brief at 13. This delay is
13 days long.
The trial court addressed Appellant’s claim, explaining the trial term in
Erie County commenced on September 12, 2020; and the court was not
available from September 13th to Friday, September 16th, as it was presiding
over a homicide trial. Opinion & Order at 2. Trial commenced on Tuesday,
September 20th. The trial court concluded this administrative delay, caused
by the court’s own scheduling, should not be attributable to the
Commonwealth.
On appeal, Appellant does not dispute, let alone address, this discussion
of the 13 day period; he makes no claim the 13-day delay was attributable to
the Commonwealth’s actions. As stated above, if trial commences after the
adjusted run date, we apply the due diligence analysis set forth in Rule
600(D). See Carl, 276 A.3d at 749. Any delays “outside the control of the
Commonwealth and not the result of the Commonwealth’s lack of diligence”
extend the adjusted run date. Id. We conclude that under these
circumstances, the trial court did not abuse its discretion in denying
Appellant’s motion to dismiss. See Carl, 276 A.3d at 748, 749 (any period of
____________________________________________
9 As noted above, while Appellant contends trial commenced on September
21, 2022, we conclude it commenced on September 20th, when jury selection
began. See Pa.R.Crim.P. 600, comment.
- 13 -
J-S33029-23
delay, which was outside the Commonwealth’s control and not the result of
the Commonwealth’s lack of diligence, results in an extension of the run date).
For the foregoing reasons, we conclude Appellant’s Rule 600 motion
claims do not merit relief, and we affirm the judgment of sentence.
Judgment of sentence affirmed.
DATE: 12/8/2023
- 14 -