Com. v. Ramos, F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FELIX RAMOS :
:
Appellant : No. 3634 EDA 2018
Appeal from the Judgment of Sentence Entered November 29, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006110-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 22, 2020
Felix Ramos appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after a jury found him guilty
of indecent assault1 and aggravated indecent assault.2 On appeal, Ramos
asserts that the trial court erred in denying his pre-trial motion filed pursuant
to Pa.R.Crim.P. 600. Upon careful review, we concur with Ramos and are
constrained to vacate his judgment of sentence.
This case stems from an incident that occurred in the back of a Wawa
parking lot at 9400 State Road in Philadelphia. The victim was walking into
the Wawa when she struck up a conversation with Ramos, during which Ramos
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3126.
2 18 Pa.C.S.A. § 3125.
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offered to obtain methamphetamine for her. N.T. Trial, 5/22/18, at 47-49.
Upon exiting the Wawa, the victim again encountered Ramos, who indicated
he was in possession of the drugs. Id. at 49. The victim walked with Ramos
across the Wawa parking lot to a wooded area. Id. at 50. There, Ramos
grabbed the victim and pulled her into an encampment, where the victim
assumed Ramos was living. Id. at 51. Ramos reached for the victim’s breasts
and tried several times to kiss her. Id. at 52-53. The victim told Ramos to
stop and that, if she had to have sex with him in order to obtain the drugs,
she “[didn’t] need to get high like this.” Id. at 51.
Ramos would not let the victim leave and reached under her dress,
touched and licked her breasts, touched her vagina, and had the victim touch
his penis with her hand. Id. at 58, 59, 70-71. Finally, the victim indicated
that she would have sex with Ramos if he went to Wawa and got a condom.
When Ramos left to do so, the victim fled and sought help. Id. at 61-64.
Police were called and the victim gave them a description of Ramos. Id.
at 66. After a radio flash was broadcast, Ramos was apprehended a few blocks
away. Id. at 31-32. The victim identified him as her assailant. Id. at 66.
DNA swabs taken from the victim’s breasts contained DNA consistent with that
of Ramos. N.T. Trial, 5/23/18, at 28, 33.
Ramos was charged with aggravated indecent assault, indecent assault,
and simple assault. Trial commenced on May 21, 2018; prior to this, the court
heard argument on, and denied, Ramos’ Rule 600 motion to dismiss. On May
23, 2018, a jury convicted Ramos of all charges except simple assault. On
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November 29, 2018, the trial court sentenced Ramos to an aggregate term of
3½ to 7 years’ incarceration, followed by 2 years of probation. Ramos filed a
timely appeal, and both he and the trial court complied with Pa.R.A.P. 1925.
Ramos challenges the court’s denial of his Rule 600 motion. Our
standard of review of a Rule 600 determination is whether the trial court
abused its discretion. Commonwealth v. Solano, 906 A.2d 1180, 1186 (Pa.
2006). “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 . . . discretion is abused.” Commonwealth v. Wright, 961 A.2d
119, 142 (Pa. 2008) (citations omitted). “Our scope of review is limited to
the record evidence from the speedy trial hearing and the findings of the lower
court, reviewed in the light most favorable to the prevailing party”—here, the
Commonwealth. Solano, 906 A.2d at 1186.
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.
Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa. Super. 2018).
Rule 600 provides, in relevant part, as follows:
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(A) Commencement of Trial; Time for Trial
(1) For the purpose of this rule, trial shall be deemed to
commence on the date the trial judge calls the case to trial,
or the defendant tenders a plea of guilty or nolo contendere.
(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 commence. Any other periods of
delay shall be excluded from the computation.
***
(D) Remedies
(1) When a defendant has not been brought to trial within
the time periods set forth in paragraph (A), at any time
before trial, the defendant’s attorney . . . may file a written
motion requesting that the charges be dismissed with
prejudice on the ground that this rule has been violated. A
copy of the motion shall be served on the attorney for the
Commonwealth concurrently with filing. The judge shall
conduct a hearing on the motion.
Pa.R.Crim.P. 600 (emphasis added).
To establish whether there has been a Rule 600 violation under
paragraph (A), a court must determine whether the delay is caused solely by
the Commonwealth when the Commonwealth has failed to exercise due
diligence. Id., comment, citing Commonwealth v. Dixon, 907 A.2d 468(Pa. 2006) and Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998). “[D]ue
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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.
Bradford, 46 A.3d 693, 701–02 (Pa. 2012).
Periods of judicial delay—i.e., delay attributable to crowded trial dockets
or the unavailability of the court—are excludable from calculations under the
rule. Id. at 705. Trial courts must apply judgment in distinguishing between
delay attributable to the court and that which should be allocated to a party.
Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).
Our review of the record provides the following timeline of this matter.
The complaint was filed against Ramos on June 7, 2016. See Criminal
Complaint, 6/7/16. A preliminary hearing was held on June 23, 2016, at which
time Ramos was held for court. See Criminal Docket Entry 5. On August 16,
2016, a scheduling conference was held, at which time Ramos was given the
earliest possible trial date of June 12, 2017. See Criminal Docket Entry 31.
On the date scheduled for trial, upon joint request of the parties, trial was
continued until June 13, 2017 to enable defense counsel to review four DVDs
containing 30 hours of security camera footage, which the Commonwealth had
just turned over to the defense. See Criminal Docket Entry 40; N.T. Rule 600
Hearing, 5/21/18, at 4-5, 8. On June 13, 2017, the defense requested a
continuance to further investigate the surveillance footage. See Criminal
Docket Entry 48. Trial was scheduled for the next available date, January 16,
2018. See id. On that date, the defense again requested a continuance, this
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time to investigate recently-turned-over DNA evidence. See Criminal Docket
Entry 60; N.T. Rule 600 Hearing, 5/21/18, at 6, 8-9. Trial commenced on May
21, 2018, 713 days after the complaint was filed.
The trial court found the following time excludable: (1) the 300 days
that elapsed between the August 16, 2016 scheduling conference and the first
available trial date of June 12, 2017, attributable to judicial delay; (2) the
one-day delay from June 12 to June 13, 2017 resulting from the joint request
for continuance to review video evidence; (3) 217 days from June 13, 2017
to January 16, 2018 resulting from the defense request for continuance to
further review video evidence;3 and (4) the 125 days between January 16,
2018 and May 21, 2018 resulting from another defense request for a
continuance to review DNA evidence. See Trial Court Opinion, 6/4/19, at 7-
8.
At issue here are periods (1), (3) and (4) listed above. 4 As to the first
period—August 16, 2016 to June 12, 2017—Ramos argues that the time is not
excludable as judicial delay because, pursuant to Mills, supra, delay
attributable to the “normal progression of the case” does not constitute
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3 The trial court’s calculation excluded 213 days, from June 13, 2017 to
January 12, 2018. However, trial was actually scheduled to begin on January
16, 2018. See Criminal Docket, at 48. January 12, 2018 was the date on
which a pre-trial conference was scheduled. See id.
4The parties do not dispute that the 70-day period between the filing of the
complaint on June 7, 2016 and the scheduling conference held on August 16,
2016 is included in the Rule 600 calculation as attributable to the “normal
progression of the case.” Mills, 162 A.3d at 325.
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excludable delay unless the Commonwealth is “trial ready.” Brief of Appellant,
at 8. Because Ramos claims the Commonwealth was not “trial ready”
throughout the pendency of the case, judicial delay cannot serve to exempt
the Commonwealth from its obligations under Rule 600. See Brief of
Appellant, at 9.
The Commonwealth counters that the trial court properly exercised the
discretion “explicitly permitted” by Mills in excluding this time as judicial
delay. Brief of Appellee, at 13. The Commonwealth asserts that it was, in
fact, prepared to proceed to trial, and the sole reason for the delay was
congestion in the court’s schedule. Id. at 14. The Commonwealth argues
that, if the time between the scheduling conference and the first trial date
were not excludable as judicial delay,
then [Ramos] could never be tried at all, under any circumstances.
More than the allotted 365 days . . . would have passed from the
filing of the complaint to the first possible date for trial without
the Commonwealth having postponed a single listing. Under
[Ramos’] interpretation, Rule 600 would have been violated and
all charges would have to be dismissed, even though there had
been no delays attributable to the Commonwealth.
Brief of Appellee, at 16.
We agree with the Commonwealth that this time was properly excluded
from the Rule 600 calculation as attributable to judicial delay. The docket
indicates that Ramos was given the earliest possible trial date at the August
16, 2016 scheduling conference. This delay was not requested by the
Commonwealth and was entirely beyond the control of the Commonwealth.
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Further, there is nothing in the record to indicate that, at this point in the
proceedings, the Commonwealth had failed to exercise due diligence. See
Mills, supra. The court listed the case for the very first available date allowed
by its schedule and, as such, the intervening period is excusable as judicial
delay.
Ramos argues that the second period of delay—from June 13, 2017 to
January 16, 2018—should have been charged to the Commonwealth because
it presented no evidence as to “when the assigned detective obtained the
videos or what efforts he undertook to do so.” Brief of Appellant, at 10. At
the Rule 600 motion hearing, counsel argued that the video evidence had been
“requested over and over and over again” since “day one at the bar of the
court.” N.T. Rule 600 Hearing, 5/21/18, at 5. Ramos argues that the
Commonwealth’s “unsupported hearsay assertion that [the detective] ‘[w]as
making ongoing efforts’ does not satisfy its due diligence obligation under Rule
600.” Id. at 10-11. Ramos argues that “delay caused by a representative of
the Commonwealth must be charged against the Commonwealth.” Id. at 12,
citing Commonwealth v. Minnich, 471 A.2d 869 (Pa. Super. 1984)
(laboratory analyst was representative of Commonwealth; therefore, delay
attributable to his faulty analysis chargeable to prosecution). Ramos
highlights a statement from the prosecutor at the Rule 600 Hearing,
acknowledging that the video “had been passed late” due to a
“misunderstanding” and that the delay “can be imputed to the
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Commonwealth, obviously, because it’s in the possession of police.” N.T. Rule
600 Hearing, 5/21/18, at 8.
In response, the Commonwealth argues that it was “not at fault for the
detective failing to provide notice of the video evidence sooner, and was willing
to forego it and proceed to trial[.]” Brief of Appellee, at 20. Because the
video evidence was produced “at the first opportunity to do so,” and the
existence of the evidence was, in fact, “a surprise to the prosecutor,” the
Commonwealth argues it was duly diligent and the time was properly
excluded. Id. at 21.
In concluding that this time was attributable to the defense, the trial
court stated that it “accepted the Commonwealth’s explanation that there was
nothing in [its] paperwork regarding video recordings and that they were
handed over at the first opportunity to do so.” Trial Court Opinion, 6/4/19, at
7-8. The court’s cursory analysis, however, fails to address whether the
Commonwealth acted with due diligence in obtaining the video evidence in the
first instance.
The incident in question occurred on June 6, 2016. The police
investigation report, dated June 11, 2016, indicates that the assigned
investigating officer contacted Wawa to determine whether surveillance video
existed. Accordingly, the Commonwealth was aware of the possibility that
such evidence existed as of early June 2016. Defense counsel made numerous
requests for the video evidence. See N.T. Rule 600 Hearing, 5/21/18, at 5
(“[The video evidence] was requested over and over and over again.”). Yet
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the Commonwealth presented no evidence that it ever contacted the
investigating officer to request the video recordings or to inquire as to the
status of his inquiry. In a Rule 600 proceeding, it is the Commonwealth’s
burden to demonstrate, by a preponderance of the evidence, that it put forth
“reasonable effort.” Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa.
2010).
In Commonwealth v. Taylor, 598 A.2d 1000 (Pa. Super. 1991), we
held that a defense continuance, requested in order to conduct an
investigation based on newly-received discovery, was properly charged to the
Commonwealth where the Commonwealth failed to act with due diligence in
obtaining the discovery materials from police. There, the Commonwealth
made two follow-up requests to the police over a period of slightly more than
two months. In reversing the trial court’s finding of due diligence, we stated
that “[s]urely, the Commonwealth could have done more in its attempt to
secure the report from the police than merely requesting the report two or
three times.” Id. at 1002. We concluded that the failure to do more amounted
to a lack of due diligence. Id. See also Commonwealth v. Preston, 904
A.2d 1, 12 (Pa. Super. 2006) (“[I]f the delay in providing discovery is due to
either intentional or negligent acts, or merely stems from the prosecutor’s
inaction, the Commonwealth cannot claim that its default was ‘excusable.’”)
(emphasis added).
Similarly, here, we do not find the Commonwealth’s efforts—or lack
thereof—to obtain the video evidence to have been reasonable based on the
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record before us. More than one year passed between the date the
investigating officer requested the video surveillance evidence from Wawa and
the date the video evidence was passed to the defense. In that time, the
prosecution apparently made no efforts to ascertain the status of that request;
nor did the Commonwealth provide an explanation for the failure of the police
to act more diligently in obtaining the video. Accordingly, when, on the day
of trial, the assigned detective walked into the courtroom with four DVDs
containing 30 hours of video recording, it was unreasonable to expect defense
counsel to properly review and digest the evidence in the amount of time
provided by a day’s continuance—which, practically speaking, would have
been a time period of far less than 24 hours in which to review 30 hours of
video. When defense counsel—who was otherwise prepared to proceed to
trial—was compelled to ask for additional time to review the video, it was as
a direct result of the Commonwealth’s lack of due diligence in obtaining the
evidence and providing it to the defense. As such, the trial court improperly
excluded the ensuing 217-day delay from its Rule 600 calculation.
We now turn our attention to the third disputed time period—between
January 16, 2018 and May 21, 2018—caused by the production of DNA
evidence within days of the second trial date. Ramos asserts that the
Commonwealth failed to demonstrate that it acted with due diligence in
obtaining and handing over the DNA evidence. Ramos points out that,
although he was swabbed for DNA testing in May of 2017, the results were
not handed over to the defense until just before the January 16, 2018 trial
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date. Ramos avers that the Commonwealth provided no explanation for this
“inordinately lengthy delay.” Brief of Appellant, at 14. Although the
Commonwealth argues that the delay is attributable to Ramos because he
failed to respond to its requests to appear to be swabbed, Ramos claims that
the Commonwealth made no attempt to obtain a DNA swab from him during
the eight months he was in custody, from June 7, 2016 to February 3, 2017.
Id. Ramos further alleges the Commonwealth’s lack of due diligence in
obtaining the swab “was compounded by its failure, once it had a sample, to
hand over the DNA report to defense counsel until eight months later[,] on
the eve of the second scheduled trial date.” Id. at 14-15. Thus, as with the
video evidence, Ramos argues that the time attributable to his continuance
request to investigate the DNA evidence should be charged to the
Commonwealth.
The Commonwealth argues that the delay was properly excluded
because “[t]he trial court determined that ‘the delay in getting a specimen of
DNA to test from [Ramos] was the fault of the defense.’” Brief of Appellee, at
24, quoting Trial Court Opinion, 6/4/19, at 8. The Commonwealth argued that
“there were concerted efforts made to obtain a DNA swab from [Ramos], who
was either reluctant to be swabbed or difficult to locate, and the swab was not
obtained until May 26, 2017[.]” Id. The Commonwealth further asserts that
“the delay was caused by [Ramos’] perceived need[]” to determine if a DNA
expert would be required, despite defense counsel having agreed to forego
DNA evidence at the time of the first trial listing. Id. As such, the
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Commonwealth argues that the time was properly excluded as a defense
continuance.
Once again, we find the court’s summary conclusion that “the delay in
getting a specimen of DNA to test from [Ramos] was the fault of the defense,”
Trial Court Opinion, 6/4/19, at 8, to be unsupported by the record and utterly
lacking in the necessary inquiry into the Commonwealth’s exercise of due
diligence. Notably, the court failed to acknowledge that the Commonwealth
had nearly eight months—from the date Ramos was arrested on June 6, 2016
until his release on bail on February 3, 2017—to obtain a buccal swab from
him while he was in custody. The Commonwealth presented no evidence as
to any efforts to obtain a swab during that period; nor does the
Commonwealth provide an explanation for the 7½ month delay between the
time the swab was obtained and the date the results were finally turned over
to the defense on the eve of the second trial date. The Commonwealth
attempts to shift blame for the delay to Ramos, arguing that he “was either
reluctant to be swabbed or difficult to locate[.]” Brief of Appellee, at 24.
However, the Commonwealth first requested a swab in April 2017. See N.T.
Rule 600 Hearing, 5/21/18, at 6. Ramos provided a sample on May 26, 2017.
Accordingly, even assuming Ramos actively avoided providing a sample, he
was responsible for less than two months of delay—delay that could have been
avoided had the Commonwealth exercised diligence by obtaining a sample
while Ramos was in its custody for nearly eight months.
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The Commonwealth also attempts to deflect responsibility for the delay
to defense counsel’s agreement at the first trial listing to forego DNA evidence.
However, for reasons not evident from the record, and despite defense
counsel’s prior agreement, the Commonwealth chose to proceed with DNA
testing. Having opted to go forward with DNA analysis, the Commonwealth
was required to provide the results of the testing to the defense. See
Pa.R.Crim.P. 573(B)(1)(e) (mandatory pretrial discovery rules require
Commonwealth to disclose, inter alia, any results or reports of scientific tests
within possession or control of prosecutor). When the Commonwealth—for
the second time—produced key evidence on the very eve of trial, the defense
was entitled to a reasonable period of time to review the evidence and
investigate its options in response thereto. Accordingly, the ensuing delay
was properly chargeable to the Commonwealth as a result of its delay in
producing mandatory discovery. See Taylor, supra; Preston, supra.We have determined that the trial court improperly excluded a total of
342 days from its Rule 600 calculation. Adding to that sum the 70 undisputed
includable days between the filing of the complaint and the first scheduling
conference brings the Rule 600 calculation to 412 days—47 days in excess of
the 365-day period provided for in Rule 600. Accordingly, we are constrained
to vacate Ramos’ judgment of sentence and discharge him.5
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5 We are cognizant of the dual purposes underpinning Rule 600—i.e., the
protection of society, as well as of an accused’s speedy trial rights. We do not
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Judgment of sentence vacated; Appellant discharged. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/20
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take lightly the nullification of a duly entered jury verdict. However, where
the Commonwealth’s sustained lack of due diligence over the pendency of a
relatively uncomplicated prosecution deprives a defendant of his right to a
speedy trial under our rules of court, we are left with no choice but to vindicate
that right, unfortunately at the expense of society’s right to effective
prosecution of criminal cases. The Commonwealth can and must do better.
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