Com. v. Zamichieli, L.

J-S08041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMONT A. ZAMICHIELI :
:
Appellant : No. 896 MDA 2022
Appeal from the Judgment of Sentence Entered May 31, 2022
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000560-2021
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JUNE 21, 2023
Appellant, Lamont A. Zamichieli, appeals pro se from the judgments of
sentence imposed after a jury found him guilty in absentia of indecent
exposure, unsworn falsification to authorities, false reports to law enforcement
authorities (falsely incriminated another), false reports to law enforcement
authorities (reported an offense that did not occur), and open lewdness.1 He
alleges that the trial court erred by denying his motion to dismiss pursuant to
Pa.R.Crim.P. 600 and violating his rights to a speedy trial and self-
representation. He also raises related claims challenging the effectiveness of
his trial counsel. Upon review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3127(a), 4904(a)(1), 4906(a), 4906(b), and 5901,
respectively.
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The facts underlying Appellant’s convictions involved him exposing
himself to a correctional officer and then falsely accusing that officer of
assaulting him. The trial court has summarized those facts as follows:
[Appellant] was incarcerated in SCI[-]Camp Hill. On September
3, 2019, he appeared in Lieutenant Mihal’s interview room as a
purported victim in a Prison Rape Elimination Act (“PREA”)
investigation. Lieutenant Mihal and [Appellant] were the only two
persons present during the interview due to the confidential
nature of the investigation. About three to four minutes into the
interview, [Appellant] exposed his penis and began masturbating.
Lieutenant Mihal immediately ended the interview and left the
room.
Trooper Bierzonski, as the prison liaison for the Pennsylvania
State Police, was assigned to investigate the incident. During an
interview with the trooper, [Appellant] reported that Lieutenant
Mihal assaulted him both physically and sexually. He went into
great detail about what she did to him and the injuries he
sustained. Those details, which included allegations of her
aggressively biting his genitals, became increasingly inconsistent
the more [Appellant] explained. The trooper asked [Appellant] to
provide a signed, written statement of the events, which he did.
Trooper Bierzonski further investigated the assault claim by
reviewing the report from [Appellant]’s medical / rape
examination. There was no evidence of physical injury or foreign
DNA on [Appellant].
Trial Court Opinion, 12/1/22, 4-5 (omitting footnotes).
Appellant was charged with the offenses in this case on May 5, 2020.
Criminal Complaint, 5/5/20, 1-6. On August 18, 2021, Appellant filed a
counseled motion requesting a preliminary hearing and dismissal of the case
based on a violation of Pa.R.Crim.P. 600. Motion to Dismiss or Remand,
8/18/21, ¶¶ 4-9. On the next day, Appellant filed, inter alia, a pro se motion
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seeking to waive his appointed counsel and proceed pro se. Motion to
Voluntarily Waive Appointment of Counsel, 8/19/21, 1-3.
On August 30, 2021, the trial court presided over a hearing on the
pending motions. Trooper Bierzonski testified that a preliminary hearing
scheduled for July 13, 2020, could not take place due to technical issues with
coordinating video conferencing equipment during the ongoing Covid-19
pandemic, see N.T. 8/30/21, 3 (“I believe due to the COVID pandemic, and
also I know there were issues with Polycom coordinating with Zoom which was
used by the magistrate.”), and because Appellant could not be available in-
person for a hearing due to a moratorium preventing the transfer of inmates
between state correctional facilities. Id. at 3-4. He then testified that the
same issues prevented a rescheduled hearing from taking place on December
14, 2020. Id. at 4. The trooper confirmed that Appellant would have been
able to attend another rescheduled hearing on March 2, 2021, via
videoconferencing, but, on that date, the hearing was held in absentia after
Appellant refused to “come out of his cell for the video hearing.” Id. at 6-7.
Appellant testified and denied receiving any notices for any dates scheduled
for the preliminary hearing. Id. at 10-11.
As for the Rule 600 motion, the trial court ruled that there was no basis
for dismissal because the Commonwealth proved, by a preponderance of the
evidence, that the time from the filing of the charges (May 5, 2020), until the
second rescheduled preliminary hearing date (December 14, 2020), were
excludable time “as a result of [Appellant’s] unavailability due to the COVID
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pandemic.” N.T. 8/30/21, 11-12; Order, 8/30/21, 1. The court ruled that the
subsequent time was not excludable because the Commonwealth failed to
prove that it had proceeded with due diligence. N.T. 8/30/21, 12; Order,
8/30/21, 1. The court disregarded the evidence concerning Appellant’s
“opportunity to participate in a preliminary hearing” in March of 2021 as
hearsay and ordered that he was entitled to a new preliminary hearing. N.T.
8/30/21, 12; Order, 8/30/21, 1. As for the motion concerning Appellant’s
representation, the court conducted a colloquy to ascertain the voluntariness
of his request to proceed pro se, during which Appellant declined the request.
Id. at 13-14. The court ordered that the pro se motion was withdrawn. Order,
8/30/21, 1. It subsequently presided over a preliminary hearing on
September 21, 2021. Order, 9/21/21, 1.
On October 21, 2021, Appellant’s counsel filed a motion to withdraw
from representation in response to a pro se motion that Appellant attempted
to file three days earlier, in which he requested the removal of counsel due to
a conflict and requested the appointment of a new attorney. Motion to
Withdraw as Counsel, 10/21/21, ¶ 6. After a pre-trial conference, the lower
court denied that motion. Order, 10/25/21, 1 (“the Court finds that the
allegations made by [Appellant] to remove [trial counsel] lack credibility.
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Therefore, [trial counsel] shall remain in this case and this matter shall
proceed to trial this term.”).2
Appellant failed to appear for a pre-trial conference scheduled on March
15, 2022, and the trial court issued an order reflecting that “the prison ha[d]
not provided an explanation for [Appellant’s] nonappearance.” Order,
3/15/22, 1. Trial was then scheduled for March 25, 2022, because Appellant’s
counsel indicated that the case was ready to be tried. Id. On March 18, 2022,
Appellant filed pro se motions seeking to give notice of his intention to present
an insanity defense and to proceed pro se or request the appointment of a
new attorney. Appellant subsequently failed to appear for trial and the
Commonwealth presented the testimony of Detective Jeremy Matas who
asserted that Appellant had refused transportation to court for the scheduled
trial. N.T. 3/29/22, 5-7. Detective Matas also confirmed that he informed
Appellant that he would be tried in absentia if he refused to appear for trial.
Id. at 7. Based on that testimony, the trial court agreed to permit the
Commonwealth to try Appellant in absentia. Id. at 8; Order, 3/29/22, 1.
____________________________________________
2 Future dates for another pre-trial conference were continued for a
competency evaluation that the trial court ordered after Appellant filed a pro
se motion styled as a “Request for the Death Penalty,” in which Appellant
discussed, inter alia, friends of his who were supposedly aliens sent to earth
and who created the “COVID19 virus/Delta Strand.” Pro Se Request for the
Death Penalty, 10/29/21, 1; Order, 10/29/21, 1; see also Order 12/2/21, 1;
Order, 1/13/22, 1; Order 1/19/22, 1. After a hearing on February 7, 2022,
the trial court determined that Appellant was “malingering” and was
competent to stand trial. Order, 2/7/22, 1.
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After the trial in absentia, during which the Commonwealth presented
the testimony of Lieutenant Mahal and Trooper Bierzonski, a jury found
Appellant guilty of the above charges.3 N.T. 3/30/22, 57-58; Verdict Slips,
3/30/22; Order 3/30/22, 1. On May 31, 2022, the trial court sentenced
Appellant (then present for the proceedings by video conferencing) to an
aggregate term of one to two years’ imprisonment to be served consecutive
to any sentence that Appellant was then already serving. N.T. 5/31/22, 3-4;
Sentencing Order, 5/31/22, 1-2. At the conclusion of the sentencing hearing,
Appellant stated that he wanted his attorney to appeal the denial of his pre-
trial Rule 600 motion. N.T. 5/31/22, 4. Appellant subsequently filed three
pro se motions requesting to proceed pro se, two pro se notices of appeal,
and a voluntary concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).4 On July 5, 2022, the trial court held a hearing pursuant
____________________________________________
3 On the date of the trial, Appellant filed a pro se motion requesting the
appointment of new counsel. Pro Se Motion to Appoint New Counsel, 3/30/22.
4 Both notices of appeal were timely filed within thirty days of the imposition
of the judgments of sentence. Notice of Appeal, 6/21/22, 1; Notice of Appeal,
6/3/22, 1-4. The instant appeal was initiated by the second notice of appeal.
On September 28, 2022, this Court dismissed as duplicative an appeal
docketed at 822 MDA 2022, that was initiated by the initial notice of appeal.
We note that, in the notice filed for this appeal, Appellant purported to appeal
the judgments of sentence imposed on May 31, 2022, and the “order of August
30, 2021 or September 13th or 14th 2021 denying [the] motion Rule 600 to
dismiss…” Notice of Appeal 6/21/22, 1. This appeal, however, properly lies
only from the imposed judgments of sentence. We have amended the caption
accordingly. See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2
(Pa. Super. 2001) (en banc) (“In a criminal action, appeal properly lies form
the judgment of sentence made final by the denial of post-sentence
motions.”).
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to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), and granted
Appellant leave to proceed pro se on appeal. Order, 7/6/22, 1.
Appellant presents the following questions for our review:
1. Whether the trial court abused [its] discretion by denying
[the] motion to dismiss pursuant to [Pa.R.Crim.P.] 600 and
committed further error by improperly excluding time from
May 5, 2020 to December 14, 2020 from the Rule 600 clock
although [the] Commonwealth failed to exercise due
diligence throughout pendency of [the] case and failed to
bring [Appellant to] a speedy trial within 365 non-
excludable days [where] Zoom video service [was]
available?
2. Whether [t]rial [c]ounsel was ineffective for failing to
properly argue and litigate [the] motion to dismiss/Rule 600
motion and failed to present to the court and argue such
evidence discovered [in] existence relating that
[Pennsylvania Department of Corrections] Secretary John E.
Wetzel’s memo[randums] signed by [Secretary] Wetzel[,]
addressed to all [PA DOC] inmates in all [PA DOC]
institutions dated March 17, 2020 stating that Zoom video
service was available and being used to co[n]duct [prison]
visits[ and] court proceedings from March 17, 2020 to
December 14, 2020; had counsel argued this and presented
[it] to the trial court as he knew existed having received [it]
from [Appellant] and [the Department of Corrections]
website, [the] Rule 600 [motion] would have been granted
and [the] case [would have been] fully dismissed?
3. Whether [t]rial [c]ounsel and [the] Commonwealth violated
[Appellant’s] 6th [A]mendment right of [the United States]
constitution by lack of speedy trial although [Appellant]
could not assert [a] speedy trial [violation] without ever
being notified in written or orally by [the] State police,
[DOC] employees, [the t]rial [c]ourt, [the] Commonwealth,
and[/]or [t]rial counsel …, that criminal charges was
filed/pending against him until over one year later as
[Appellant] could not assert a speedy trial right without
being made aware or given the opportunity to appear at an
hearing until after a year has elapsed?
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4. Whether [the t]rial [c]ourt and [t]rial [c]ounsel abused
[their] discretion and violated [Appellant’s] 6th Amendment
[right to] self[-]representation by forcing [Appellant] to trial
with [an] ineffective counsel/court appointed public
defender; a conflict of interest although [Appellant] timely
and properly filed a motion to proceed [pro se] and waive
[his] right to counsel but said trial court failed to address
and by ignoring such motion and motion for continuance to
secure private counsel before trial and further violated by
ignoring [the] motion to proceed [pro se] after sentencing
on direct appeal where [the] outcome would have been
different and in [Appellant’s] favor?
5. [Whether the t]rial court abused [its] discretion by
manipulating the running of the Rule 600/speedy trial right
clock by intentionally failing to hold [a f]ormal
[a]rraignment and failing to direct [the] Commonwealth to
file a new/updated “[i]nformation” on the charges after the
second preliminary hearing upon remand although
[Appellant] timely in writing and orally brought [it] to [the]
trial court, [the C]ommonwealth and trial counsel’s
attention but still the parties failed to address [the] issue
which caused [a] due process violation as counsel’s
ineffectiveness for failing to bring it to [the] trial court’s
attention to be addressed such charge from custody is
warranted?
Appellant’s Brief at 9-11.
In his first issue presented, Appellant argues that the trial court abused
its discretion by denying his motion to dismiss pursuant to Pa.R.Crim.P. 600.
He notes that Rule 600 was suspended statewide from March 19, 2020, to
June 2020 due to the judicial emergency declared in the wake of the Covid-
19 outbreak. Appellant’s Brief at 15. He asserts that the trial court incorrectly
determined that the time from May 5, 2020 to December 14, 2020 was
improperly excluded from the court’s Rule 600 calculation because the court
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incorrectly relied on Trooper Bierzonski’s testimony that previously scheduled
preliminary hearings could not take place due to technical issues coordinating
video conferencing equipment during the ongoing pandemic. Appellant’s Brief
at 17-18. He points out that the Department of Corrections’ memorandums
during that period reflected that the state corrections system was using Zoom
video conferencing software to carry out virtual prison visits and concludes
that those memorandums belied Trooper Bierzonski’s testimony about an
inability to use the Zoom software to conduct an earlier preliminary hearing.
Id. at 17-19. He asserts that the trooper’s testimony should have been
rejected as hearsay passing on what the trooper had heard from other
employees of SCI-Camphill, where Appellant was incarcerated from May 5,
2020, to March 30, 2021, before he was transferred to SCI-Phoenix. Id. at
19-20.
Appellant generally argues that the Covid-19 pandemic did not excuse
the Commonwealth from trying his case within 365 days through the use of
video conferencing software such as Zoom. Appellant’s Brief at 21. He also
faults the Commonwealth for “not even attempt[ing] to get court dates
scheduled any closer when it realized” that the delays would exceed the
mechanical run-date enforced by Rule 600. Id. at 22. Accordingly, he asserts
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that the entire time-period from May 5, 2020, to December 14, 2020, should
not have been ruled to be excludable time by the trial court.5 Id. at 23-24.
Our review of this claim must first begin by examining whether Rule 600
was in operation in the Ninth Judicial District, which consists of Cumberland
County, during the relevant time period addressed by Appellant’s claim. Here,
Appellant’s criminal complaint was filed on May 5, 2020, and his motion for
dismissal under Rule 600 was filed, 470 days later, on August 18, 2021.
Appellant was thereafter tried before a jury on March 30, 2022, 694 days
following the filing of his criminal complaint.
Beginning in March 2020, the Supreme Court of Pennsylvania issued
emergency orders suspending the computation of time rule at Pa.R.Crim.P.
600(C) statewide through June 1, 2020.6 See In re General Statewide
Judicial Emergency, 228 A.3d 1283, 1287 (Pa., filed Mar. 18, 2020) (table);
____________________________________________
5 At the same time, he concedes that if any of that time should be excluded
then only the period from March 19, 2020, to June 1, 2020, should be excluded
pursuant to the statewide judicial emergency. Appellant’s Brief at 26.
6 The statewide emergency orders did not foreclose a defendant from
otherwise asserting speedy trial claims as a matter of constitutional law. See
In re General Statewide Judicial Emergency, 228 A.3d 1283, 1287 (Pa.,
filed Mar. 18, 2020) (table) (“Nothing in this Order, however, or its local
implementation, shall affect a criminal defendant’s right to a speedy trial
under the United States and Pennsylvania Constitutions – albeit that the
circumstances giving rise to this Order and the suspension may be relevant to
the constitutional analysis.”); In re General Statewide Judicial
Emergency, 234 A.3d 408, 409 (Pa., filed May 27, 2020) (table)
(empowering president judges, “subject to state and federal constitutional
requirements, to … [s]uspend statewide rules pertaining to the rule-based
right of criminal defendants to a prompt trial”).
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In re General Statewide Judicial Emergency, 229 A.3d 229, 232 (Pa.,
filed Apr. 1, 2020) (table); In re General Statewide Judicial Emergency,
230 A.3d 1015, 1019 (Pa., filed Apr. 28, 2020) (table). While the statewide
judicial emergency ended, our Supreme Court expressly empowered each
judicial district’s president judge to enter self-effectuating declarations of
judicial emergency, which could “[s]uspend statewide rules pertaining to the
rule-based right of criminal defendants to a prompt trial.” In re General
Statewide Judicial Emergency, 234 A.3d 408, 409 (Pa., filed May 27, 2020)
(table); see also In re General Statewide Judicial Emergency, 228 A.3d
1281, 1282 (Pa., filed Mar. 16, 2020) (table) (“the President Judge specifically
SHALL HAVE THE AUTHORITY to suspend the operation of Rule of Criminal
Procedure 600 within a judicial district … The purport of the suspension will be
that the time period of the local judicial emergency (or a shorter time period
if specified) shall be excluded from the time computation under Rule of
Criminal Procedure 600(C)”); Pa.R.J.A. 1952(B)(2)(m) (“If the Supreme Court
authorizes the president judge to declare a judicial emergency in the judicial
district, and unless limited by the Supreme Court, the president judge shall
have the authority to … make application to the Supreme Court to temporarily
suspend or modify statewide court rules as applied to any case or cases in the
judicial district.”).
Prior to the announcement of the statewide judicial emergency, the
Honorable Edward E. Guido, President Judge of the Court of Common Pleas of
Cumberland County, issued a Declaration of Judicial Emergency for the Ninth
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Judicial District. In that order, President Judge Guido explicitly suspended the
operation of Rule of Criminal Procedure 600 “during the period of the local
judicial emergency,” which then was designated to last from March 16, 2020,
to April 14, 2020. See In re: Ninth Judicial District – Declaration of
Judicial Emergency, Declaration, P.J. Guido, 3/16/20, at 1, available at
https://www.pacourts.us/Storage/media/pdfs/20210519/010524-file-8513.
pdf. Over the ensuing months, President Judge Guido entered multiple orders
extending the local judicial emergency through August 2, 2021.7
____________________________________________
7 See In Re: Judicial Emergency and Limited Reopening of the Courts,
Administrative Order, P.J. Guido, 5/1/20, at 1 (extending the local judicial
emergency through June 1, 2020), available at https://www.pacourts.us/
Storage/media/pdfs/20210519/010729-file-9195.pdf; In Re: Judicial
Emergency Extended, Administrative Order, P.J. Guido, 5/29/20, at 1
(extending the local judicial emergency through August 1, 2020), available at
https://www.pacourts.us/Storage/media/pdfs/20210519/010801-file-9399.
pdf; In Re: Judicial Emergency Extended, Administrative Order, P.J.
Guido, 7/27/20, at 1 (extending the local judicial emergency through October
1, 2020), available at https://www.pacourts.us/Storage/media/pdfs/
20210519/010832-file-9725.pdf; In Re: Judicial Emergency and Limited
Reopening of the Courts, Administrative Order, P.J. Guido, 9/28/20, at 1
(extending the local judicial emergency through December 31, 2020),
available at https://www.pacourts.us/Storage/media/pdfs/20210519/010859
-file-10114.pdf; In Re: Covid-19 Restrictions, Administrative Order, P.J.
Guido, at 3 (extending the local judicial emergency to January 31, 2021),
available at https://www.pacourts.us/Storage/media/pdfs/20210519/010859
-file-10114.pdf; In Re: Judicial Emergency as a Result of Covid-19,
Administrative Order, P.J. Guido, 1/8/21, at 1 (extending the local judicial
emergency through March 31, 2021), available at https://www.pacourts.us/
Storage/media/pdfs/20210519/010957-file-11026.pdf; In Re: Judicial
Emergency as a Result of Covid-19, Administrative Order, P.J. Guido,
3/25/21, at 1 (extending the local judicial emergency through April 30, 2021),
available at https://www.pacourts.us/Storage/media/pdfs/20210519/011026
-file-11352.pdf; In Re: Judicial Emergency as a Result of Covid-19,
(Footnote Continued Next Page)
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On June 21, 2021, our Supreme Court issued a per curiam order, stating
that president judges were no longer authorized to declare judicial
emergencies, and, “to the extent declarations of local judicial emergencies
[were] in effect suspending the rule-based right of criminal defendants to a
prompt trial,” those declarations “may remain in effect until August 31, 2021.”
See In Re: General Statewide Judicial Emergency, No. 553 Judicial
Administration Docket, Order, 6/21/21 (per curiam), at 1 (unnumbered),
available at https://www.pacourts.us/Storage/media/pdfs/20210621/193440
-june21-judicialadmin.dkt.553certifiedorderinregeneralstatewidejud.emergen
cy.pdf.
Consistent with President Judge Guido’s unequivocal suspension of the
of Rule 600 “during the period of the local judicial emergency,” that rule was
suspended in the Ninth Judicial District on March 16, 2020, when that district’s
local judicial emergency began, and remained suspended until the eventual
end of the emergency on August 2, 2021. See In re: Ninth Judicial District
– Declaration of Judicial Emergency, Declaration, P.J. Guido, 3/16/20, at
1 (“The operation of Rule of Criminal Procedure 600 shall be suspended in the
9th Judicial District during the period of the local judicial emergency.”),
____________________________________________
Administrative Order, P.J. Guido, 4/19/21, at 1 (extending the local judicial
emergency through June 15, 2021), available at https://www.pacourts.us/
Storage/media/pdfs/20210519/011027-file-11414.pdf; In Re: Judicial
Emergency and Limited Reopening of the Courts, Administrative Order,
P.J. Guido, 6/14/21, at 1 (extending the local judicial emergency through
August 2, 2021), available at https://www.pacourts.us/Storage/media/pdfs/
20210614/205235-cumberlandcounty.pdf.
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available at https://www.pacourts.us/Storage/media/pdfs/20210519/010524
-file-8513.pdf. Rule 600 was thus effective at the time that Appellant filed his
motion for dismissal under that rule on August 18, 2021.
In general, a trial court’s denial of a Rule 600 motion is reviewed for an
abuse of discretion; however, it is subject to plenary review when “the
dispositive question implicates legal issues.” Commonwealth v. Harth, 252
A.3d 600, 614 n.13 (Pa. 2021). To the extent that the instant claim can be
resolved by a proper interpretation of the criminal procedures set forth in the
Ninth Judicial District’s judicial emergency declaration, our standard of review
is de novo and our scope of review is plenary because issues of statutory
construction involving the Pennsylvania Rules of Criminal Procedure present a
pure question of law. Commonwealth v. Carl, 276 A.3d 743, 749 (Pa.
Super. 2022).
Rule 600, in relevant part, provides:
(A) Commencement of Trial; Time of 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.
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…
(C) Computation of Time
(1) For purposes of paragraph (A), period 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 time within which trial must
commence. Any other period 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, or the
defendant if unrepresented, 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.
In a Rule 600 analysis, the ‘mechanical run date’ is 365 days after
the complaint was filed. The ‘adjusted run date’ is then calculated
by adding any time that is ‘excluded from the computation’ under
Rule 600(C)(1). If a defendant is not brought to trial by the
adjusted run date, the case is dismissed.
Commonwealth v. Malone, --- A.3d ----, 2023 WL 3313781, *2 (Pa. Super.,
filed May 9, 2023) (citations omitted).
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Here, Appellant only objects to the trial court’s ruling that the period
from May 5, 2020 to December 14, 2020 should be excluded from the court’s
computation under Rule 600(C)(1). That entire period of time elapsed during
the Ninth Judicial District’s local judicial emergency when Rule 600 was
unequivocally suspended in that district pursuant to the plain language of the
district’s initial local judicial emergency declaration. Appellant’s criminal
complaint was also filed during that emergency. For computation of time
purposes under Rule 600, the entire period of time from the filing of the
criminal complaint until the end of the Ninth Judicial District’s local judicial
emergency should have been excluded from the trial court’s Rule 600
computation. See Commonwealth v. Lear, 290 A.3d 709, 719 (Pa. Super.
2023) (“If an order unambiguously suspends Rule 600 without qualification,
then the period of the suspension is added to the run date without considering
the Commonwealth’s diligence.”); Commonwealth v. Carl, 276 A.3d 743,
750 (Pa. Super. 2022) (where the plain meaning of a local judicial emergency
declaration in response to the pandemic directed that rule-based, prompt trial
time computations were suspended for the duration of the judicial emergency,
days transpiring during the effective time of the declaration until the expiration
of the declared emergency would not be included under Rule 600
computations).
Properly accounting for the local judicial emergency suspension period,
the trial court did not err by considering the time from May 5, 2020 to
December 14, 2020, as excludable time for purposes of its calculation under
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Rule 600. There was also no need for consideration of the Commonwealth’s
diligence during that period given the unequivocal suspension of Rule 600
during that time. Where only sixteen days had passed in between the end of
the Ninth Judicial District’s local judicial emergency and the filing of Appellant’s
Rule 600 dismissal notice, there could only have been sixteen days of
includable time for purposes of the mechanical run date when Appellant
alleged a violation of the 365-day speedy trial limit. In these circumstances,
Appellant could not prove a hypothetical violation of Rule 600 that would
necessitate dismissal. Appellant’s Rule 600 motion was premature and thus
the instant claim involving trial court error with respect to the denial of that
motion lacks merit.8
In his second issue, Appellant asserts that his trial counsel provided
ineffective assistance by failing to properly argue and litigate his Rule 600
motion and failing to preserve claims that the trial court erred by not holding
a formal arraignment and not directing the Commonwealth to file updated bills
of information after his second preliminary hearing. Appellant’s Brief at 30-
32. These ineffective assistance of counsel claims are not cognizable on direct
appeal and must be deferred to collateral review under the Post Conviction
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8While it has no bearing on the outcome of our review Appellant’s first claim,
we cannot conceive any Rule 600 violation in this case because the
Commonwealth proceeded to try Appellant within 365-days of the end of the
Ninth Judicial District’s local judicial emergency. See Malone, --- A.3d ----,
2023 WL 3313781, at *4 (holding that, where a defendant’s criminal complaint
was filed while Rule 600 was unambiguously suspended, “[t]he Rule 600
computation … did not begin until Rule 600 was no longer unambiguously
suspended”).
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Review Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. See Commonwealth v.
Rosenthal, 233 A.3d 880, 887 (Pa. Super. 2020) (refusing to consider
ineffective assistance on direct review), citing Commonwealth v. Holmes,
79 A.3d 562, 576 (Pa. 2013) (stating that, except in limited, identified
circumstances, “claims of ineffective assistance of counsel are to be deferred
to PCRA review”), and Commonwealth v. Hopkins, 228 A.3d 577, 584 (Pa.
Super. 2020) (same).
Our Supreme Court has recognized three exceptions to the general rule
for deferring review of ineffective assistance of counsel claims until collateral
review:
The first exception … affords trial courts discretion to entertain
ineffectiveness claims in extraordinary circumstances where a
discrete claim of trial counsel ineffectiveness is apparent from the
record and meritorious to the extent that immediate consideration
best serves the interests of justice. The second exception … gives
trial courts discretion to address ineffectiveness claims on post-
sentence motions and direct appeal if there is good cause shown
and the defendant knowingly and expressly waives his entitlement
to seek subsequent PCRA review of his conviction and sentence.
Commonwealth v. Delgros, 183 A.3d 352, 360 (Pa. 2018), citing Holmes,
79 A.3d at 563-564. The third exception allows “trial courts to address claims
challenging trial counsel’s performance where the defendant is statutorily
precluded from obtaining subsequent PCRA review.” Delgros, 183 A.3d at
361. In this instance, none of these exceptions apply: Appellant is not
statutorily precluded from obtaining subsequent PCRA review; Appellant has
not demonstrated any reason for unitary review necessitating the review of
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ineffective assistance of counsel claims on direct appeal; and Appellant has
not demonstrated that he has offered any waiver of subsequent PCRA review.
Accordingly, we must defer review of Appellant’s ineffective assistance of
counsel claims.
In his third issue, Appellant asserts that the trial court and the
Commonwealth violated his right to a speedy trial under the Sixth Amendment
to the United States Constitution. Appellant’s Brief at 33-34, citing Barker
v. Wingo, 407 U.S. 514 (1972). In evaluating claims alleging constitutional
speedy trial issues, our standard of review “is whether the trial court abused
its discretion, and our scope of review is limited to the trial court’s findings
and the evidence of record, viewed in the light most favorable to the prevailing
party.” Commonwealth v. Martz, 232 A.3d 801, 812 (Pa. 2020) (citation
omitted). Here, Appellant makes no effort to discuss any abuse of discretion
with respect to a ruling on a constitutional speedy trial rights claim and instead
appears to be making an argument in the first instance that his speedy trial
right under the Sixth Amendment was violated due to a lack of notice as to
his charges and the scheduling of court proceedings in this matter. Appellant’s
Brief at 33-34.
We cannot entertain this claim because Appellant waived it by not
preserving it before the trial court. In his counseled motion to dismiss, he
failed to make an explicit assertion of a violation of his constitutional right to
a speedy trial and offer any arguments that addressed a constitutional speedy
trial right violation claim. Instead, in a section in that motion entitled “Rule
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600,” he merely referenced “a violation of Rule 600 and a speedy trial
standard,” asserted that he never requested any continuances or
postponements, averred that the “the grace period allotted to the courts for
the COVID-19 pandemic was overreached,” and noted that fifteen months had
elapsed since his arrest. Motion to Dismiss or Remand, 8/18/21, ¶¶ 4-8. To
the extent Appellant seeks to raise a constitutional claim on appeal asserting
a violation of the United States Constitution’s Sixth Amendment, we deem it
to be waived for lack of preservation. Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on appeal.”);
see also Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008)
(“Even issues of constitutional dimension cannot be raised for the first time
on appeal.”).
In his last issue, Appellant claims that the trial court erred and violated
his right to self-representation under the Sixth Amendment of the United
States Constitution by not holding a hearing on his motion to waive counsel
and proceed pro se that he filed on March 18, 2022, prior to him failing to
appear for trial and being tried in absentia.9 Appellant’s Brief at 35-36. He
____________________________________________
9 Within this issue, Appellant also asserts that trial counsel violated his Sixth
Amendment rights by ignoring his motion to proceed pro se and not requesting
a hearing on the motion. Appellant’s Brief at 35-36. Implicit in the trial
counsel ineffectiveness component of this issue, Appellant seems to be
addressing the fact that trial counsel did not preserve any trial court error
claim with respect to the court’s failure to hold a hearing on his motion to
proceed pro se. Consistent with our discussion of Appellant’s second issue,
we must defer any ineffectiveness claim related to the instant issue to
collateral review.
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asserts that the trial court should have granted a continuance to hold a hearing
on the motion to proceed pro se. Id. at 35. This trial court error claim is
waived for lack of preservation because trial counsel, in Appellant’s absence
at trial, raised no objection to the trial court’s decision to proceed with the
trial in absentia without first ruling on the motion to proceed pro se. Pa.R.A.P.
302(a); Strunk, supra.Even assuming arguendo that the instant claim was not waived for lack
of preservation, Appellant fails to present this Court with any authority from
which we could conclude that his decision to absent himself from his trial did
not constitute a waiver or forfeiture of his motion to proceed pro se, or in the
alternative, that the trial court should have granted a continuance to consider
the motion to proceed pro se after Appellant willfully failed to appear for trial.
The right to appear pro se is guaranteed so long as the defendant
understands the nature of his choice to waive counsel. Faretta v. California,
422 U.S. 806, 821, 835 (1975) (implicit in the structure of the Sixth
Amendment is the right of a criminally accused to conduct his own defense);
see also Commonwealth v. Tighe, 224 A.3d 1268, 1280 (Pa. 2020) (a
defendant’s right to act as his own counsel “is implicit in the Sixth Amendment
to the United States Constitution and explicit in Article I, Section 9 of the
Pennsylvania Constitution”). At the same time, “[i]t is well established that a
defendant can waive the right of self-representation after asserting it.”
Commonwealth v. Bryant, 855 A.2d 726, 737 (Pa. 2004). A defendant may
also forfeit his right to self-representation. See Faretta, 422 U.S. at 834 n.46
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(a trial court “may terminate self-representation by a defendant who
deliberately engages in serious and obstructionist misconduct[;] … the right
of self-representation is not a license to abuse the dignity of the courtroom”
or to fail to “comply with relevant rules of procedural and substantive law”);
see also Tighe, 224 A.3d at 1280 (“misbehavior affecting the right to self-
representation is not restricted to the courtroom and the ‘relevant rules of
procedure and substantive law’ are not limited to those occurring only in the
trial itself”).
In Pennsylvania criminal matters, requests to proceed pro se are
addressed by Pa.R.Crim.P. 121. Among other things, the rule provides that a
defendant may waive the right to be represented by counsel and sets forth
the minimum information that must be elicited from a defendant to ensure
that their waiver of counsel is knowing, voluntary, and intelligent.
Pa.R.Crim.P. 121(A)(1)-(2). With respect to the instant case, “[w]hen the
defendant seeks to waive the right to counsel after the preliminary hearing,
the judge shall ascertain from the defendant, on the record, whether this is a
knowing, voluntary, and intelligent waiver of counsel.” Pa.R.Crim.P. 121(C);
see also Pa.R.Crim.P. 121(A)(3) (noting that a judge may permit the attorney
for the Commonwealth or the defendant to conduct the examination of the
defendant’s awareness of the factors addressed in Pa.R.Crim.P. 121(A)(2) and
that the judge shall be present during that examination); Commonwealth v.
McDonough, 812 A.2d 504, 508 (Pa. 2002) (concluding that Faretta requires
an on-the-record colloquy in satisfaction of Pa.R.Crim.P. 121, which colloquy
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may be conducted by the court, the prosecutor, or defense counsel). “Before
a defendant is permitted to proceed pro se, however, the defendant must first
demonstrate that he knowingly, voluntarily and intelligently waives his
constitutional right to the assistance of counsel.” Commonwealth v. Starr,
664 A.2d 1326, 1335 (Pa. 1995).
In the instant case, Appellant waived or forfeited his motion to proceed
pro se by failing to appear for the scheduled trial listing. By willfully absenting
himself from the trial process, he made it impossible for the trial court to
conduct or oversee a colloquy pursuant to Rule 121, and he failed to meet his
burden of demonstrating the voluntariness of his request to proceed pro se
prior to the Commonwealth requesting to proceed with the trial in absentia.
Upon the unjustified absence of Appellant for trial, there was no ability or
reason to conduct a hearing on Appellant’s motion to proceed pro se:
Appellant declined to seek self-representation at the same time that he
declined to be present for trial. In these circumstances, counsel remained in
place and no action was taken on the motion to proceed pro se to ensure that
Appellant kept his representation as the Commonwealth was able proceed
without him. See Pa.R.Crim.P. 602(A) (“The defendant’s absence without
cause at the time scheduled for the start of trial or during trial shall not
preclude proceeding with the trial, including the return of the verdict and the
imposition of sentence.”); Commonwealth v. Sullens, 619 A.2d 1349, 1352
(Pa. 1992) (holding that “when a defendant is absent without cause at the
time his trial is scheduled to begin, he may be tried in absentia”).
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To the extent that Appellant suggests that the outstanding motion to
proceed pro se should have compelled a grant of a continuance in spite of his
absence for trial, we disagree that the denial of a continuance would have
constituted an abuse of discretion. Our Court has noted that “a defendant’s
constitutional right to counsel of his choice is not absolute and ‘must be
weighed against[,] and may be reasonably restricted by[,] the state’s interest
in the swift and efficient administration of criminal justice.’” Commonwealth
v. Broitman, 217 A.3d 297, 300 (Pa. Super. 2019). Moreover, “[a] trial court
has ‘wide latitude in balancing the right to counsel of choice against the needs
of fairness … and against the demands of its calendar.’” Commonwealth v.
Prysock, 972 A.2d 539, 542 (Pa. Super. 2009) (citation omitted). When we
made these points in Broitman and Prysock, we were reviewing instances
where trial courts failed to grant continuance requests to permit defendants
to retain new counsel where the requests for the continuances were made
shortly before or on the day of a scheduled jury trial, but they are appropriate
to consider in this instance where Appellant motioned to proceed pro se a
week before a scheduled trial and then ultimately failed to appear for trial.
To permit a continuance for Appellant’s motion to proceed pro se while
the Commonwealth had the ability to proceed with trial given his voluntary
absence, would have permitted Appellant to succeed at immobilizing the
commencement of trial until a time of Appellant’s choosing and allowed him
to cause delay that would have perhaps discouraged the appearance of
prosecution witnesses. In these circumstances, a request for a continuance
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was undermined by Appellant’s failure to appear for trial and appeared to be
part of a pattern of dilatory conduct by Appellant where the instant request to
proceed pro se was a serial request of that nature and made after another
outlandish pro se motion that compelled the trial court to order a competency
evaluation. See Pro Se Request for the Death Penalty, 10/29/21, 1. In this
instance, a denial of an eleventh-hour continuance for a defendant who failed
to appear for trial would not have been an abuse of discretion. See, e.g.,
Commonwealth v. Brooks, 104 A.3d 466, 475 (Pa. 2014) (holding that a
trial court did not abuse its discretion in denying a defendant’s untimely, day-
of-trial request for a continuance, so that he could represent himself;
“defendants should not be permitted to unreasonably ‘clog the machinery of
justice’ or hamper or delay the effort to administer justice effectively”). Even
if Appellant had preserved his claims alleging a violation of his right to self-
representation, we would not conclude that they entitle him to relief.
Appellant’s Rule 600 claim is meritless where time attributed to
statewide and local judicial emergencies in the wake of the Covid-19 pandemic
needed to be excluded from a time calculation pursuant to Pa.R.Crim.P.
600(C). His claims challenging the effectiveness of his trial counsel must await
collateral review under the PCRA. His claim raising a violation of his speedy
trial right under the United States Constitution is waived for lack of
preservation. His claim alleging a violation of his right to self-representation
is waived for lack of preservation and, in any event, meritless where Appellant
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failed to appear for trial, days after he filed his motion to proceed pro se, and
the Commonwealth moved to proceed with a trial in absentia.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2023
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