Com. v. Stanko, T.

J-S14038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THOMAS GEORGE STANKO : No. 881 WDA 2021
Appeal from the Order Entered June 30, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0005589-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS STANKO :
:
Appellant : No. 882 WDA 2021
Appeal from the Order Entered June 30, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001820-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS GEORGE STANKO :
:
Appellant : No. 883 WDA 2021
Appeal from the Order Entered June 30, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001943-2018
J-S14038-22
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: June 6, 2022
In these consolidated appeals, the Commonwealth challenges three
orders of the Court of Common Pleas of Westmoreland County (trial court)
dismissing with prejudice the offenses charged at the above-captioned docket
numbers because the speedy trial periods had elapsed pursuant to
Pa.R.Crim.P. 600. The Commonwealth argues that the trial court abused its
discretion by not excluding from its computation of time the days that Thomas
George Stanko (Stanko) spent in federal custody. We affirm.
I.
Prosecutors in Westmoreland County charged Stanko in three separate
matters on July 24, 2017 (case number 5589 C 2017); January 21, 2018 (case
number 1943 C 2018); and April 12, 2018 (case number 1820 C 2018).1
While these three cases were still pending, on December 12, 2018,
Stanko was indicted in the United States District Court for the Western District
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* Retired Senior Judge assigned to the Superior Court.
1 At case number 5589 C 2017, Stanko was charged with simple assault (18
Pa.C.S. § 2701(a)(1)), harassment (18 Pa.C.S. § 2709(a)(1)), and disorderly
conduct (19 Pa.C.S. § 5503(a)(1)). At case number 1820 C 2018, Stanko was
charged with receiving stolen property (18 Pa.C.S. § 3925(a)). At case
number 1943 C 2018, Stanko was charged with operating a vehicle not
equipped with ignition interlock (75 Pa.C.S. § 3808(a)(1)), improper changing
of lanes (75 Pa.C.S. § 3309(1)), operating a vehicle without functioning
headlights (75 Pa.C.S. § 4303(A)), and operating a vehicle without adequate
restraint systems (75 Pa.C.S. § 4581(a)(ii)).
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of Pennsylvania at 403 MD 2019 and charged with being a felon in possession
of a firearm and ammunition (18 U.S.C. § 922(g)). On December 14, 2018,
a United States magistrate judge entered a writ of habeas corpus ad
prosequendum “for Initial Appearance set for 1/15/2019.” This writ directed
that Stanko would be taken into federal custody to ensure his presence at a
hearing on January 15, 2019, at the end of which Stanko would be returned
to the custody of Westmoreland County. Pursuant to the federal writ, Stanko
was taken into federal custody on the day of the hearing on January 15, 2019.
It appears that federal authorities housed Stanko in the Allegheny County jail
for that proceeding, which was held in Pittsburgh.
On January 18, 2019, the trial court entered a transport order directing
the Superintendent of the Allegheny County jail to ensure Stanko’s presence
in Westmoreland County for a status conference concerning case number 1943
C 2018. The transport order provided further that Stanko would be “returned
to the Allegheny County Jail upon completion of the [s]tatus [c]onference
unless he or she is no longer subject to a sentence to be served with the
Allegheny County Jail or the court orders otherwise.” Trial Court Transport
Order, 1/18/2019, at 1 (case number 1943 C 2018).
Stanko was returned without incident to the custody of Westmoreland
County on January 24, 2019, so that he could appear for his status conference
on February 15, 2019. Sometime after that date, Stanko went back into
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federal custody, where he has remained.2 The trial court entered a writ of
habeas corpus ad prosequendum on June 19, 2019, directing that Stanko be
brought to Westmoreland County for a preliminary hearing on an unrelated
case (403 C 2019) on June 21, 2019, but he was not made available.
The record is sparse concerning the relationship between the federal
and county charges, but there is enough information to glean that during all
of those prosecutions, Stanko was suspected of having some connection to
the murder of his ex-girlfriend, Cassandra Gross, who has been missing since
April 2018. No one has yet been charged in connection with her death.
On October 29, 2020, Stanko moved to dismiss three of his
Westmoreland County criminal cases, arguing that the prompt trial periods
____________________________________________
2 The parties dispute the means by which Stanko was turned over to federal
authorities at this time. The defense argued (and the trial court agreed) that
the record did not establish exactly how or when Stanko went into federal
custody after the February 15, 2019 status conference in Westmoreland
County. The Commonwealth has argued that the trial court’s January 18,
2019 transport order is what precipitated the custody change, but that
characterization is dubious. The trial court ordered that Stanko would be sent
to “the Allegheny County Jail” after his status conference in Westmoreland
County had concluded. By moving Stanko from one county facility to another,
the trial court clearly did not intend for Stanko to be confined indefinitely in
federal custody while the county cases were pending. The trial court certainly
had no cause to suspect that federal authorities would permit Stanko’s
transport on the one occasion and then never again while the federal charges
were pending. Additionally, Stanko’s transport to the Allegheny County jail
appeared to be conditioned in part on Stanko being “subject to a sentence” in
that particular jurisdiction – a fact which the record does not establish. Thus,
the record is silent as to why the Commonwealth lost and could not regain
custody of Stanko from that point forward.
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had elapsed.3 He claimed that the Commonwealth had violated Rule 600,
which requires the Commonwealth to bring defendants to trial within 365 days
of the date that the charges were filed. The trial court held an evidentiary
hearing on Stanko’s motion on December 18, 2020. Stanko was not present
at the hearing, as he remained in federal custody.
Initially, the Commonwealth noted Stanko’s absence at the hearing and
called into question “the efficacy, wisdom, and knowing, intelligent, and
voluntary nature” of the motion to dismiss in light of the fact that the three
cases were being used as “[bargaining] chips in Mr. Stanko’s negotiation
process” in the federal matter. Hearing Transcript, 12/18/2020, at pp. 2-3.
After accepting that Stanko nevertheless intended to seek dismissal, the
Commonwealth attempted to prove its due diligence 4 with four pieces of
evidence:
(1) The federal writ of habeas corpus ad prosequendum entered
on December 14, 2018, intended to secure Stanko’s presence at
a preliminary hearing concerning the federal case on January 15,
2019;
(2) A docket entry from June 19, 2019, recording the trial court’s
writ of habeas corpus ad prosequendum, intended to secure
Stanko’s presence at a preliminary hearing on June 21, 2019,
____________________________________________
3 The fourth Westmoreland County case, docketed case number 403 C 2019,
is not at issue in the present appeals.
4 As will be discussed in greater detail below, a delay in the proceedings which
occurs despite the Commonwealth’s exercise of due diligence cannot be
included in the speedy trial computation.
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concerning an unrelated case (the fourth in Westmoreland
County) docketed at case number 403 C 2019;
(3) A brief email sent by a United States Marshal to county
prosecutors on the day Stanko moved for dismissal, advising that
“[p]er the order on the attached writ, Stanko will remain in
[federal custody] until disposition of his fed charges,” at which
time “he will be returned to Westmoreland County custody
accompanied by a USMS Judgment and Commitment detainer”;
and
(4) A federal docket showing that Stanko had been actively
litigating his case in that jurisdiction.
Hearing Transcript, 12/18/2020, Commonwealth Exhibits 1-4.
Based on the pendency of the federal case and the apparent
unwillingness of federal authorities to transfer Stanko to Westmoreland
County, the Commonwealth argued that none of the resulting delays in
Stanko’s cases were attributable to the prosecution for the purposes of Rule
600. Along the same lines, the Commonwealth argued that the federal writ
of habeas corpus ad prosequendum “trumped” the rival writ filed by the trial
court in case number 403 C 2019, making it futile for the Commonwealth to
try to secure Stanko’s presence.
Defense counsel countered that the Commonwealth was responsible for
the delays in bringing Stanko’s county cases to trial. According to defense
counsel, the district attorney had “turned away the prosecution that could’ve
been here, because the [alleged weapon possession] was allegedly here in
Westmoreland County on the guns that were charged.” Id. at p. 11. In other
words, defense counsel identified the unusual circumstances of the state and
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federal cases as evidence that the Commonwealth was attempting to keep the
county charges pending for as long as possible. Defense counsel argued that
the scant evidence of due diligence offered by the Commonwealth
demonstrated its lack of genuine interest in taking the cases to trial.
On June 30, 2021, the trial court entered orders in all three cases
granting Stanko’s Rule 600 motions. After adjusting the respective run dates
of each case based on delays attributable to the defense and other excusable
delays, the trial court found that the Commonwealth’s lack of due diligence
during Stanko’s federal custody had stalled the trials beyond their adjusted
run-dates, warranting dismissal. The Commonwealth timely appealed, and it
was then directed to submit a concise statement of errors as to all three orders
it had challenged. See Pa.R.A.P. 1925(b). On August 12, 2021, the
Commonwealth timely submitted its 1925(b) statements, each of which
included one identical issue:
1. The trial court erred by failing to exclude or excuse from the
computation of time pursuant to Pa.R.Crim.P. Rule 600(A) and
(C)(1) the period of time after February 15, 2019 where [Stanko]
was in federal custody and unavailable to the [trial court].
Commonwealth’s 1925(b) Statements, 8/12/2021, at 1-2.
The trial court entered three substantially similar 1925(a) opinions on
November 29, 2021. As to the Commonwealth’s evidence of due diligence,
the trial court commented:
The Commonwealth has presented no explanation for when, how,
or why Stanko was transferred to federal custody after he was
returned to state custody for his in-person appearance in this
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court on February 15, 2019. This lack of curiosity on the part of
the Commonwealth and its apparent lack of recognition that it has
an obligation to provide an answer to this Court identifying the
legal authority for the defendant’s subsequent return to federal
custody is consistent with its failure to provide evidence
documenting its efforts to effect progress in the defendant’s
prosecution in state court[.]
Trial Court 1925(a) Opinion, 11/29/2021 at 8 (case number 5589 C 2017).
The trial court then expanded in its finding that the Commonwealth had
made an insufficient showing of due diligence after federal authorities had
taken custody of Stanko on February 15, 2019:
After Stanko’s removal from the Westmoreland County Prison, the
Commonwealth did absolutely nothing to assert the state’s
primary jurisdiction, to secure Stanko’s presence for numerous
hearings in this matter, or to challenge the removal of the
defendant from state custody. The Commonwealth rather clearly
allowed the defendant to remain in the custody of another
jurisdiction while it stood idly by.
Throughout, while professing an inability to obtain custody of
Stanko for his appearance before this Court, the Commonwealth
never asserted its primary jurisdiction to challenge the federal
government’s unauthorized seizure and detention of the
defendant; nor did the Commonwealth ever seek a writ of habeas
corpus ad prosequendum in this case for the purpose of obtaining
custody of Stanko (either through its primary jurisdiction or even
temporarily for the purpose of appearing at a hearing before this
Court in order to further the progress of the prosecution). This
stance is anathema to the Constitution’s guarantee of a speedy
trial and to Rule 600 which implements the protection for this very
important right.
Id. at 11 (paragraph indentation added).
Apart from its finding that the Commonwealth did not prove due
diligence, the trial court made a separate determination of “misconduct” and
an “abuse of power” by the District Attorney’s Office of Westmoreland County.
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See generally id. at 25-26.5 The trial court inferred from the record and
“extended observation of the Commonwealth’s representatives” that
prosecutors may have assisted or allowed the federal government’s seizure of
Stanko “in the hopes that they could develop a case of homicide against [him]”
and use the county cases as bargaining “‘chips’ “in plea negotiations.” Id.The trial court surmised that the county prosecutors were strategically
dragging the cases out so that Stanko would remain in custody for as long as
the murder investigation required. Id.The trial court was also concerned that the email from the United States
Marshal introduced by the Commonwealth “was generated at the request of
the Commonwealth after Stanko’s Rule 600 motion was filed in order to create
a ‘paper trail’ which did not otherwise exist.” Id. at 21 (emphasis in original).
The trial court found this to be a misleading attempt to demonstrate due
diligence, see id., and the Commonwealth has since conceded that it “sought
documentation of the Marshal’s position on the matter for purposes of
presenting it to the trial court.” Appellant’s Brief, at 15-16.
In its appellate brief, the Commonwealth included a statement of
questions involved which mirrored its 1925(b) statements. See Appellant’s
____________________________________________
5 The trial court stressed that the standard for finding prosecutorial misconduct
is “not the yardstick for measuring due diligence under Rule 600.” Trial Court
1925(a) Opinion, 11/29/2021, at 25 (case number 5589 C 2017). The trial
court’s dismissal of the cases, therefore, did not hinge on the findings of
misconduct or intentional delay by the Commonwealth.
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Brief, at 1. However, in the body of the brief, the Commonwealth argued for
the first time that the trial court was bound by contemporaneous continuance
orders excluding Stanko’s time in federal custody and that the resulting delay
should have been excluded from the speedy trial calculations. The
Commonwealth also argued for the first time that the finding of prosecutorial
misconduct “as the justification [for the dismissals] establishes that the [trial
court] was predisposed to dismiss these charges, but forced to manipulate the
record in order to achieve that end.” Appellant’s Brief, at 13.
In response, Stanko contends that the Commonwealth has waived all of
its appellate claims because its Rule 1925(b) statements lacked sufficient
specificity to preserve any of the issues raised on appeal. Stanko also
maintains that dismissal was proper because the trial court correctly found
that the Commonwealth had failed to prove it exercised due diligence while
he remained in federal custody.
Significantly, the Commonwealth and Stanko seem to agree that it is
dispositive in all three appeals whether, for the purposes of Rule 600, the time
Stanko spent in federal custody was properly excluded from the speedy trial
calculations. Since Stanko has been in federal custody for over a year, a
period which exceeds the speedy trial period, our adjudication as to that
disputed period necessarily controls the outcome of all three appeals.
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II.
The Commonwealth’s central contention is that the trial court abused its
discretion in finding that delays in bringing Stanko to trial were attributable to
the Commonwealth despite that, during the relevant periods, Stanko was
being held in federal custody. Two subsidiary issues of that general claim are
(a) whether the trial court’s prior continuance orders excluding the relevant
periods of federal custody were binding in the absence of subsequent evidence
of Stanko’s availability, and (b) whether the trial court’s findings, including
the determination of prosecutorial misconduct, stemmed from the trial court’s
bias against the Commonwealth.
A.
Pennsylvania’s prompt trial rule affords defendants charged with
criminal offenses the right to be brought to trial within 365 days of the filing
of the complaint. See Pa.R.Crim.P. 600(A)(2)(a). The computation of the
speedy trial period does not include delay caused by the defendant’s
unavailability or other delays which occurred despite the Commonwealth’s
exercise of due diligence. See Pa.R.Crim.P. 600(C)(1)-(2); see also
Commonwealth v. Thomas, 879 A.2d 246 (Pa. Super. 2005) (same).
In determining whether the Commonwealth has exercised due diligence,
the courts have explained that the inquiry “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.”
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Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). It is the
Commonwealth, not the defendant, who bears the “burden of demonstrating
by a preponderance of the evidence that it exercised due diligence.”
Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012).
A defendant may be deemed unavailable to stand trial if he is being
detained in another jurisdiction. See Commonwealth v Williams, 896 A.2d
523, 537 (Pa. 2006); Commonwealth v. Woods, 663 A.2d 803, 807–08 (Pa.
Super. 1995); Commonwealth v. DeMarco, 481 A.2d 632, 635–37 (Pa.
Super. 1984); see also Comment to Pa.R.Crim.P. 600 (“[T]he defendant
should be deemed unavailable for the period of time during which the
defendant contested extradition, or a responding jurisdiction delayed or
refused to grant extradition . . . or during which the defendant was absent
under compulsory process requiring his or her appearance elsewhere in
connection with other judicial proceedings.”).
However, for the purposes of Rule 600, it is still incumbent on the
Commonwealth to demonstrate regular due diligence throughout the period in
which the defendant is held in another jurisdiction’s custody. See
Commonwealth v. McCafferty, 363 A.2d 1239, 1241 (Pa. Super. 1976)
(“There is no question, therefore, that the duty imposed on the
Commonwealth . . . to bring a defendant to trial within the prescribed period
is not affected by the fact of his incarceration elsewhere or by his failure to
demand trial.”); Commonwealth v Alexander, 464 A.2d 1376, 1382 (Pa.
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Super 1983) (same); Commonwealth v. Haynes, 488 A2d 602, 604-05 (Pa.
Super. 1985) (same).
The Commonwealth’s bare assertion or subjective belief that a
defendant is unavailable in another jurisdiction does not satisfy the due
diligence requirement of Rule 600. See Commonwealth v. Colon, 87 A.3d
352, 359-61 (Pa. Super. 2014); Commonwealth v Thompson, 136 A.3d
178 (Pa. Super. 2016) (same). By the same token, “a failure to keep adequate
records of its efforts to secure [a defendant’s] presence at trial militates
against any conclusion the Commonwealth acted with due diligence.”
Thompson, 136 A.3d at 184; see also Commonwealth v. Morgan, 239
A.3d 1132 (Pa. Super. 2020) (vacating judgment of sentence on speedy trial
grounds where Commonwealth did not demonstrate a reasonable effort to
secure defendant’s transfer while he was held in another jurisdiction).
The standard of review as to a ruling on a Rule 600 motion is whether
the trial court abused its discretion. See Commonwealth v. Hunt, 858 A.2d
1234, 1238 (Pa. Super. 2004). “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.” Id. (quoting Commonwealth v. Jones, 826 A.2d 900,
907 (Pa. Super. 2003) (en banc)). The record facts must be viewed on appeal
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“in the light most favorable to the prevailing party.” Id. (quoting
Commonwealth v. Jackson, 765 A.2d 389, 392 (Pa. Super. 2000)).
B.
Here, we find that the trial court did not abuse its discretion in
concluding that the Commonwealth failed to exercise due diligence in bringing
Stanko to trial during the time he was being held in federal custody (from
February 15, 2019 until the date the Rule 600 motions were filed on October
29, 2020). The Commonwealth offered minimal evidence at the hearing on
the Rule 600 motions that it took reasonable measures during that period to
secure Stanko’s presence. The Commonwealth’s evidence was limited to a
federal writ; a docket entry recording a writ entered in Westmoreland County
in an unrelated case; the email sent to county prosecutors on October 29,
2020, by a United States Marshal declining extradition; and the docket
concerning Stanko’s federal case.
The federal writ was intended to secure Stanko’s presence for one
preliminary hearing on January 15, 2019. After that preliminary hearing took
place, he was successfully transported back to Westmoreland County. Stanko
was then again sent back to federal authorities on February 15, 2019, and the
record reflects that the Commonwealth did next to nothing from that point on.
No explanation has been given as to how the federal writ remains in force
despite the completion of its mandate; why Stanko could be transported to
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Westmoreland County once in early 2019 but not thereafter; and what the
Commonwealth did afterwards to honor Stanko’s speedy trial rights.
The Commonwealth points to the October 29, 2020 email it received
from a United States Marshal as proof of due diligence and Stanko’s
unavailability, but this correspondence instead supports the trial court’s
conclusion. The email provides no context into the Commonwealth’s efforts
for the preceding year-and-a-half in which Stanko was held in federal custody
– the email chain and any related correspondence was curiously omitted from
the Commonwealth’s exhibit. The trial court also correctly observed that the
email was sent on the same day that Stanko’s Rule 600 motions were filed,
making it reasonable to infer that the Commonwealth had made a token effort
of contact with federal authorities to give the appearance of due diligence.
The Commonwealth has since conceded that it only obtained this email in
response to Stanko’s Rule 600 motions.
Additionally, the United States Marshal’s professed authority for keeping
Stanko in custody for as long as needed to resolve his case (the federal writ)
did not actually confer such powers and, yet, the Commonwealth meekly
accepted the refusal to transport Stanko as the final word in the matter. One
would think that if the Commonwealth was really set on bringing Stanko to
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trial, it would have at some point conferred with a federal prosecutor or filed
a motion in the district court for him to be brought to Westmoreland County.6
The Commonwealth’s rather flimsy pretext for its consistent inaction
supports the trial court’s conclusion that the Commonwealth failed to prove
its due diligence during Stanko’s time in federal custody. See 1925(a)
Opinion, at 21. Thus, the trial court did not abuse its discretion in granting
dismissal.7
C.
As for the Commonwealth’s first sub-issue regarding the trial court’s
continuance orders excluding the periods of federal custody from the speedy
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6 The federal docket introduced by the Commonwealth would only be arguably
probative of its due diligence or Stanko’s unavailability if the Commonwealth
had demonstrated that it had sought to have Stanko transferred to
Westmoreland County at times that unavoidably overlapped with federal
litigation. No such showing was made here.
7 The present matters are distinguishable from the facts of Commonwealth
v. Thomas, 879 A.2d 246 (Pa. Super. 2005), which the Commonwealth
discusses in its brief. See Appellant’s Brief, at 10-11. In Thomas, this Court
held that the trial court did not abuse its discretion in finding that the
Commonwealth acted with due diligence when it formed an “understanding”
with the federal government that the defendant would be released to state
custody once sentencing had concluded in the federal case. See 879 A.2d at
252. Thomas is inapplicable because the trial court had determined that the
Commonwealth acted with due diligence “during this time period” of federal
custody. Id. By contrast, the Commonwealth never offered proof of any such
understanding in the instant cases. The Commonwealth insists it was
powerless to act once Stanko went into federal custody, but it supported that
claim with a single communication between prosecutors and a United States
Marshal that was sent only after the speedy trial periods had already elapsed.
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trial computation, we find that the claim was not preserved for appellate
review, and that even if it was properly raised, the issue is meritless.
A party is precluded from obtaining appellate relief as to claims of error
that have not been adequately preserved for review. Generally, an issue is
preserved for purposes of appeal if it is raised before the trial court in the first
instance. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal.”). Where the trial
court has directed the filing of a statement of issues complaining of on appeal,
any issue not included in the statement is waived. See Pa.R.A.P.
1925(b)(4)(vii); see also Pa.R.A.P. 1925(b)(4)(v) (issues included in the
statement will be deemed to encompass all subsidiary issues which had
already been “raised in the trial court”). “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.” Commonwealth v. Leaner, 202 A.3d 749, 765-
66 (Pa. Super. 2019).
The only issue identified in the Commonwealth’s 1925(b) statements is
whether the trial court erred in excluding Stanko’s time in federal custody
from the Rule 600 calculations. At the hearing held on December 18, 2020,
the Commonwealth did not argue that the trial court was bound by earlier
continuance orders excluding from the Rule 600 computation the time Stanko
was in federal custody or that any particular delays were attributable to the
defense. Neither the trial court’s continuance orders nor the respective county
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dockets were admitted into evidence, and the record cannot be supplemented
with those documents on appeal. See Commonwealth v. Entz, 888 MDA
2019 (Pa. Super. June 12, 2020) (unpublished memorandum decision)
(affirming dismissal where Commonwealth had not admitted into evidence
documentation of its efforts at the Rule 600 hearing). Thus, the sub-issue is
now waived.
Even if the Commonwealth had preserved the claim that the trial court
was bound by its earlier continuance orders, the issue would lack merit. Rule
600(C)(b) provides that the grant or denial of a continuance “is subject to
review” by the trial court in the event that a motion to dismiss is filed by the
defendant. See Pa.R.Crim.P. 600(D)(3). Once Stanko filed Rule 600 motions
in his cases, and the trial court was given the benefit of an evidentiary hearing
and arguments from counsel, it would have been fully within the trial court’s
discretion to reconsider its earlier orders in light of the complete record and
conclude that due diligence had not been proven. Thus, the Commonwealth’s
first sub-claim was waived, and regardless, no relief would be due even if it
had been preserved for review.
D.
Finally, the second of the Commonwealth’s two sub-issues is that the
trial court abused its discretion because it was “predisposed to dismiss these
charges, but forced to manipulate the record in order to achieve that end.”
Appellant’s Brief, at 13.
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This issue is preserved because the trial court’s finding of prosecutorial
misconduct first appeared in its 1925(a) opinions, and the Commonwealth
disputed that finding at the earliest opportunity. See Commonwealth v.
Poncala, 915 A.2d 97, 105 (Pa. Super. 2006) (“[T]he issue Appellant raised
on appeal is properly before this Court, because Appellant’s claim is in direct
response to the trial court’s Rule 1925(a) opinion and raised at the first
opportunity Appellant could raise the issue.”).
Under our standard of review, the orders of dismissal must be affirmed
as long as there is some evidence in the record which supports an impartial
finding that the Commonwealth failed to exercise due diligence during the
period in question. See Hunt, 858 A.2d at 1238. As the trial court noted in
the present cases, and as our Supreme Court has made clear, “our speedy
trial decision turns solely on whether the Commonwealth exercised due
diligence,” so “‘we need not consider whether there exists misconduct on the
part of the Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused.’” Colon, 87 A.3d at 360 (quoting Bradford, 46 A.3d at
703).
In our discussion above, we explained that the trial court did not abuse
its discretion with respect to its findings on due diligence because there was
no competent record evidence that the Commonwealth made reasonable
efforts to secure Stanko’s presence at the relevant times. This finding compels
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the affirmance of the dismissals under our standard of review. See Colon,
87 A.3d at 360.
Nevertheless, the Commonwealth argues that the trial court’s finding of
prosecutorial misconduct reveals that it “was predisposed to dismiss these
charges” and had to “manipulate the record in order to achieve that end.”
Appellant’s Brief, at 13. We find no merit to this claim of judicial bias because
the trial court made its finding of misconduct by drawing reasonable inferences
from the record evidence:
 The Commonwealth admitted that it elicited an email from
a United States Marshal only after Stanko moved for dismissal so
that the email could be used as proof of due diligence;
 The Commonwealth oddly referred to the three pending
county cases as bargaining “chips”; and
 The Commonwealth demonstrated the ability to transfer
Stanko from federal custody to Westmoreland County without
incident in January 2019, disproving the claim that it was
impossible for him to be transported.
Just as importantly, it was a glaring absence of evidence which made it
reasonable for the trial court to infer that the delays of Stanko’s cases were
due to a “misuse of the power of the office of the district attorney.” Trial Court
Opinion, 11/29/2021, at 25-26. The trial court noted that no adequate
explanation was ever given for how Westmoreland County lost custody of
Stanko in February 2019. The Commonwealth identified no evidence of the
steps it took between the time Stanko was taken into federal custody and the
date he filed his motions to dismiss on October 29, 2020. Indeed, the
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Commonwealth’s last-minute effort on that same date (finally contacting the
United States Marshal) would reasonably suggest that the prosecutors
themselves were concerned about the lack of proof showing their due diligence
in the preceding period.
Moreover, we emphasize that the trial court was rightfully skeptical of
the Commonwealth’s insistence that it had no power to compel Stanko’s
presence in Westmoreland County:
After Stanko’s removal from the Westmoreland County Prison, the
Commonwealth did absolutely nothing to assert the state’s
primary jurisdiction, to secure Stanko’s presence for numerous
hearings in this matter, or to challenge the removal of the
defendant from state custody. The Commonwealth rather clearly
allowed the defendant to remain in the custody of another
jurisdiction while it stood idly by. Throughout, while professing
an inability to obtain custody of Stanko for his appearance before
this Court, the Commonwealth never asserted its primary
jurisdiction to challenge the federal government’s unauthorized
seizure and detention of the defendant; nor did the
Commonwealth ever seek a writ of habeas corpus ad
prosequendum in this case for the purpose of obtaining custody
of Stanko (either through its primary jurisdiction or even
temporarily for the purpose of appearing at a hearing before this
Court in order to further the progress of the prosecution).
Trial Court Opinion, 11/29/2021, at 12.
After reviewing the record, the briefs and the applicable law, we
conclude that the Commonwealth’s claim of judicial bias is completely
unfounded. The trial court acted within its discretion in granting dismissal
and, thus, the orders on review must stand.
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Orders affirmed.
Judge McLaughlin concurs in the result.
Judge McCaffery concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2022
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