Com. v. Girimonti, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTHONY GIRIMONTI :
:
Appellant : No. 109 WDA 2019
Appeal from the Judgment of Sentence Entered December 11, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002566-2017
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 21, 2020
Appellant, Anthony Girimonti, appeals from the judgment of sentence
entered on December 11, 2018 in the Court of Common Pleas of Allegheny
County. After careful review, we affirm the conviction, but we vacate the
judgment of sentence and remand for resentencing.
On December 9, 2016, Appellant drove Victim and her friend to a bank
to cash a check, and then drove them to a car dealership in Ohio so that Victim
could purchase a vehicle. During the return trip, Appellant stopped his vehicle
in an alleyway in McKees Rocks, and his three co-defendants, Lawrence Hite,
Ronald Fehl, and Michelle Hite, approached Appellant’s car and robbed Victim.
On December 29, 2016, Appellant was charged with two counts of
robbery, 18 Pa.C.S. § 3701(a)(1)(iv); one count of receiving stolen property,
18 Pa.C.S. § 3925(a); one count of simple assault, 18 Pa.C.S. § 2701(a)(1);
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and one count of criminal conspiracy, 18 Pa.C.S. § 903. An additional count
of simple assault was added by information. On April 12, 2017, the
Commonwealth filed a notice of its intent to try Appellant’s case with his co-
defendants. On October 23, 2017, Appellant filed a motion to sever his case
from those of his co-defendants, which the trial court denied on November 22,
2017.
On January 16, 2018, Appellant filed a motion to dismiss his case
pursuant to Pa.R.Crim.P. 600. The trial court held a Rule 600 hearing on
February 14, 2018. On February 27, 2018, the trial court entered an order
denying Appellant’s Rule 600 motion. On August 20, 2018, Appellant filed a
renewed motion to dismiss under Rule 600, which the trial court denied that
day. In addition, on September 12, 2018, immediately prior to the
commencement of trial, Appellant orally motioned to dismiss pursuant to Rule
600, which motion the trial court denied.
On September 14, 2018, a jury convicted Appellant of the crimes of
receiving stolen property and conspiracy to receive stolen property and
acquitted him of the remaining charges. On December 11, 2018, the trial
court sentenced Appellant to serve a term of incarceration of one year less
one day to two years less two days, plus three years of probation on the
receiving stolen property conviction. For the conspiracy conviction, the trial
court sentenced Appellant to serve a concurrent three-year term of probation.
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This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Whether the trial court abused its discretion by denying
[Appellant’s] multiple requests for dismissal due to a violation of
Pa.R.Crim.P. 600, as it was error to attribute continuances
requested by co-defendants to [Appellant], and these
continuances were used by the co-defendants to negotiate plea
agreements linked to testifying against [Appellant] at his trial,
where the Commonwealth did not exercise due diligence in
bringing the case to trial in a timely manner but rather trial was
conducted 623 days after the criminal information was filed?
II. Whether [Appellant’s] sentences for Receiving Stolen Property
and Conspiracy-Receiving Stolen Property are illegal due to
improper grading under Apprendi [v. New Jersey, 530 U.S. 466
(2000)] and Alleyne [v. United States, 570 U.S. 99 (2013)].
Appellant’s Brief at 5.
Appellant first argues that the trial court abused its discretion in denying
his requests for dismissal filed pursuant to Pa.R.Crim.P. 600. Appellant’s Brief
at 18-24. Specifically, Appellant alleges that the multiple postponements
attributable to his co-defendants should be attributed to the Commonwealth.
Id. Appellant contends that the postponements were actually Commonwealth
postponements “in disguise,” the sole purpose being for the Commonwealth
to negotiate plea agreements with the co-defendants in order to gain
testimony against Appellant. Id. at 21-22.
“When reviewing a trial court’s decision in a Rule 600 case, an appellate
court will reverse only if the trial court abused its discretion.”
Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012). We recognize
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that the courts of this Commonwealth employ a three-step analysis to
determine whether Rule 600 requires dismissal of the charges against a
defendant.
The first step in determining whether a technical violation of
Rule 600 […] has occurred is to calculate the “mechanical run
date.” The mechanical run date is the date by which trial must
commence under the relevant procedural rule. [T]he mechanical
run date is ascertained by counting the number of days from the
triggering event - e.g., the date on which … the criminal complaint
was filed – to the date on which trial must commence under Rule
[600]. Pa.R.Crim.P. [600(A)(3)].
Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal
citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second
step, we must “determine whether any excludable time exists pursuant to
Rule 600(C).” Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. Super.
2007). In the third step, “[w]e add the amount of excludable time, if any, to
the mechanical run date to arrive at an adjusted run date.” Id.
It is well settled that any delay occasioned by a defendant is excludable
time in the calculation of the adjusted run date. Pa.R.Crim.P. 600(C)(2)-(3).
“‘Excusable delay’ is not expressly defined in Rule 600, but the legal construct
takes into account delays which occur as a result of circumstances beyond the
Commonwealth’s control and despite its due diligence.” Commonwealth v.
Hunt, 858 A.2d 1234, 1241 (Pa. Super. 2004).
“Due-diligence is a fact-specific concept that is determined on a
case-by-case basis. Due diligence does not require perfect
vigilance and punctilious care, but rather a showing by the
Commonwealth that a reasonable effort has been put forth.”
Commonwealth v. Booze, 953 A.2d 1263, 1273 (Pa. Super.
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2008) (quotations and quotation marks omitted). “Judicial delay
may justify postponing trial beyond the adjusted run date if the
Commonwealth was prepared to commence trial prior to the
expiration of the mandatory period but the court was unavailable
because of ‘scheduling difficulties and the like.’” Preston, 904
A.2d at 14 (citation omitted).
Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012). Any time
prior to trial, a defendant may move the trial court for dismissal of the charges
if the Commonwealth has violated the Rule. Pa.R.Crim.P. 600(D)(1).
In Commonwealth v. Kimbrough, 872 A.2d 1244, 1260 (Pa. Super.
2005), this Court held that delays imposed by a co-defendant are excludable
time for other co-defendants in the same matter for Rule 600 calculations.
We explained that a delay caused by a joined co-defendant is excludable
where a “separate trial could have required the duplication of testimony and
evidence, and would have imposed the burden of two lengthy trials on the
trial court.” Id.
The trial court offered the following discussion pertaining to this issue:
This [c]ourt heard argument on the Rule 600 motion on
February 14, 2018. At that time, both the Assistant District
Attorney and counsel for Appellant agreed that the case most on
point was Commonwealth v. Kimbrough, 872 A.2d 1244, 1260
(Pa. Super. 2005). (Transcript of Motion hearing, February 14,
2018, hereinafter MT at 6, 10).
* * *
The case sub judice was charged as a four co-defendant
case, where the underlying allegation is that the four named
defendants conspired to rob the individuals in a car that Appellant
was driving. At the time of the February 14, 2018 hearing, two of
the other co-defendants had requested and were granted two
postponements. The Commonwealth had not requested a
postponement. Per Kimbrough, this time is excludable from Rule
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600 consideration and this [c]ourt did not err in denying the
Motion to Dismiss.
Trial Court Opinion, 5/21/19, at 4-5. Upon careful review of the record, we
are constrained to agree.
Our review of the certified record reflects that the trial court held a
hearing on Appellant’s Rule 600 motion on February 14, 2018. During the
hearing, the assistant district attorney explained that the Rule 600 adjusted
run date had not yet expired due to postponements requested by Appellant’s
co-defendants. N.T., 2/14/18, at 11-12. Thereafter, the following transpired:
[THE COURT]: So if we are talking about one postponement here,
one co-Defendant postponement, that is the basis for
[Appellant’s] Rule 600 argument. That does change the
dynamics, because the second postponement, if I’m
understanding what [the Assistant District Attorney] is saying, at
this point, doesn’t impact the Rule 600 days, because the first
[postponement] is the one that would be at issue in order to put
[Appellant] behind the Rule 600 [calculation]. Am I
misunderstanding what you’re saying?
[ASSISTANT DISTRICT ATTORNEY]: You’re not misunderstanding,
Your Honor. I’ll just clarify, there were two defense
postponements. One on July 31st by counsel for Mr. Hite [when
new counsel was appointed], and the new trial date was
November 13, 2017.
The next postponement was on November 8th by counsel for
Mr. Fehl, and the new trial date was March 5, 2018.
* * *
My argument was that the first postponement, entirely out
of the hands of the Commonwealth, from counsel for Mr. Hite, will
put the Rule 600 calculation at April 11th without even counting
the second postponement.
N.T., 2/14/18, at 12-14.
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The record further reflects that the trial court held a hearing on May 7,
2018, to address a request for postponement filed by Appellant’s three co-
defendants related to plea offers made by the Commonwealth. Appellant
objected. N.T., 5/7/18, at 2. At the hearing, the trial court made the following
observations regarding these additional requests for postponements made by
Appellant’s co-defendants:
It’s my understanding here as indicat[ed] on the postponement
form, the victims and the officers were present here today. The
victims are receptive to resolution of this matter that would
include a pretrial restitution.
And so the three [co-d]efendants other than [Appellant],
are requesting a postponement in order to be able to accumulate
the funds to make that pretrial restitution payment. I believe that
is a reasonable [plea agreement] request from the Commonwealth
[in the plea offer]. And particularly in light of the fact that the
plea offers in the case, differ with regard of [Appellant], because
of his prior record score. This postponement is appropriate and I
will grant it.
N.T., 5/7/18, at 3-4. At the conclusion of the hearing, the trial court explained
that the co-defendants had sixty days to secure the necessary funds, and if
the matter was not resolved with the plea agreements, the trial court would
set a trial date for thirty days later. Id. at 5.
The trial court then held a hearing on July 11, 2018, to address the plea
agreements and the co-defendants’ ability to procure the necessary funds to
provide Victim with restitution. At the hearing, it was explained that the
various co-defendants accumulated most, but not all of the monies necessary,
and the need to finalize the amount due with Victim. N.T., 7/11/18, at 2-8.
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The record further reveals that on August 20, 2018, Appellant’s co-defendants
filed a motion for continuance seeking an additional postponement.
Stipulation To Supplement Certified Record, 10/28/19, at 3. “The
postponement was requested for the co-defendants to finish paying restitution
and ‘complete plea objectives.’” Id. Said motion was granted by the trial
court and the trial was set for September 12, 2019.
Thus, the record establishes that Appellant’s co-defendants sought
multiple continuances and postponements. One continuance was necessitated
by a change of trial counsel for a co-defendant. In addition, multiple
postponements were precipitated by co-defendants’ endeavors to accept the
terms of guilty plea offers. Appellant does not dispute that if the multiple
continuance and postponements in question are attributed to him, his case
does not conflict with Rule 600. Rather, as previously stated, Appellant hinges
his argument on the supposition that his co-defendants’ postponement
requests were “actually Commonwealth postponements in disguise.”
Appellant’s Brief at 21. However, the evidence of record fails to support
Appellant’s claim. As noted above, the multiple postponements related to the
co-defendants’ desires to plead guilty and satisfy a pretrial restitution
requirement. Hence, we agree with the trial court that the delays attributed
to the co-defendants are excludable time for Appellant for the purposes of
Rule 600 calculations. Kimbrough, 872 A.2d at 1260. Accordingly, the trial
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court did not abuse its discretion in denying Appellant’s Rule 600 claim. Thus,
Appellant’s claim lacks merit.
Appellant next argues that his sentence was illegal because the trial
court incorrectly graded his convictions as third-degree felonies, rather than
first-degree misdemeanors. Appellant’s Brief at 25-29. Specifically, Appellant
asserts that his sentence is illegal because, contrary to Apprendi v. New
Jersey, 530 U.S. (2000) and Alleyne v. United States, 570 U.S. 99 (2013),
the trial judge, not the jury, determined the amount of money stolen, which
established the grading of the offenses. Id. at 25. Appellant contends that
the jury should have been required to determinate whether Appellant was
culpable for the full amount taken from Victim, which was $2,700.00, or the
amount that Appellant confessed to receiving, which was $350.00. Id. at 28.
Appellant argues that only the jury should have made that determination to
establish the grading of the offense. Id.
“A claim that the court improperly graded an offense for sentencing
purposes implicates the legality of a sentence.” Commonwealth v.
Mendozajr, 71 A.3d 1023, 1027 (Pa. Super. 2013) (citation omitted).
“Issues relating to the legality of a sentence are questions of law[; as a result,
o]ur standard of review over such questions is de novo and our scope of review
is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)
(citations omitted).
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After careful review, we conclude that the sentence imposed upon the
counts of receiving stolen property and conspiracy to receive stolen property,
which were graded as a third degree felonies, violated the constitutional
principles set forth in Apprendi, 530 U.S. 466.1
18 Pa.C.S. § 3903 governs the grading of theft offenses, including
receiving stolen property, and provides, in relevant part, as follows:
(a.1) Felony of the third degree. -- [T]heft constitutes a felony
of the third degree if the amount involved exceeds $2,000 . . . .
* * *
(b) Other grades.--Theft . . . constitutes a misdemeanor of the
first degree, except that if the property was not taken from the
person or by threat, or in breach of fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200 the
offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than $50 the offense constitutes
a misdemeanor of the third degree.
18 Pa.C.S. § 3903(a.1), (b)(1-2). In addition, we observe that, for grading of
a conspiracy conviction, 18 Pa.C.S. § 905 states: “Except as otherwise
provided in this title, … conspiracy[ is a crime] of the same grade and degree
____________________________________________
1 In Apprendi, the United States Supreme Court held: “Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. See also
Commonwealth v. Panko, 975 A.2d 1189, 1191 (Pa. Super. 2009) (citing
Apprendi and noting that “a fact that increases the maximum penalty or
changes the grade of an offense must be submitted to a jury and proven
beyond a reasonable doubt.”).
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as the most serious offense which … is an object of the conspiracy.” Thus,
Appellant’s conviction of conspiracy to commit receiving stolen property is
graded the same as a conviction of receiving stolen property.
In addressing this issue, we find instructive our recent decision in
Commonwealth v. Nellom, 234 A.3d 695 (Pa. Super. 2020). In Nellom,
we concluded that the trial court erred in grading the appellant’s conviction of
theft of services as a third-degree felony. Id. at 705. Specifically, although
the Commonwealth charged the appellant with theft of services graded as a
felony of the third degree, the jury was presented with a verdict slip asking
whether the “‘value of the services obtained exceeded fifty dollars,’ to which
the jury answered ‘yes.’” Id. We then observed that “the trial court, without
objection by the Commonwealth, failed to present the jury with the essential
questions necessary to elevate the grade of the offense from a misdemeanor
of the second degree to either a misdemeanor of the first degree, or a felony
of the third degree.” Id. We ultimately held, pursuant to Apprendi, that the
crime should have been graded as a second-degree misdemeanor. Id.
Here, the Commonwealth charged Appellant, inter alia, with the crimes
of receiving stolen property graded as a third-degree felony and criminal
conspiracy graded as a second-degree felony. However, our review of the
record reflects that the verdict slip is not included in the certified record. Our
further review reflects that at the time the trial court issued jury instructions,
it did not specify dollar amounts that correlated with the grading of any
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offenses. N.T., 9/14/18, at 25-34. Likewise, the jury’s verdict simply stated
“guilty” as to the counts of receiving stolen property and conspiracy. Id. at
45. Moreover, the record lacks any indication that the jury was apprised of
the grading of the crimes with which Appellant was charged.
Thus, the record reflects that the trial court, without objection from the
Commonwealth, failed to present the jury with the essential questions
pertaining to the dollar amounts necessary to discern the grade of the crimes
for which Appellant was convicted. Because the facts surrounding the dollar
amounts change the grade of the offenses, they must be submitted to a jury
and proven beyond a reasonable doubt. Panko, 975 A.2d at 1191.
Consequently, we are constrained to vacate Appellant’s judgment of sentence
and remand for resentencing.
Conviction affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2020
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