Com. v. Litz, D. (memorandum)

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J-S27001-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DANIEL D. LITZ Appellant No. 1449 WDA 2012 Appeal from the Judgment of Sentence August 23, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003699-2012 BEFORE: GANTMAN, P.J., ALLEN, J., and STABILE, J. MEMORANDUM BY GANTMAN, P.J.: FILED: May 22, 2014 Appellant, Daniel D. Litz, appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas, following his bench trial conviction for robbery.1 We affirm. In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Appellant now raises one issue for our review: DOES THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING [APPELLANT S] RULE 600 MOTION IF THE TRIAL COURT OPINION CONSIDERS THE WRONG LEGAL STANDARD WHEN EXPLAINING ITS RULING ON THIS MOTION AND WHEN CONSIDERING THE CORRECT LEGAL ____________________________________________ 1 18 Pa.C.S.A. § 3701(a)(1)(ii). J-S27001-14 STANDARD, THE COMMONWEALTH FAILS TO EXERCISE DUE DILIGENCE BY ITS INACTION ON THE CASE FOR OVER A YEAR? (Appellant s Brief at 4). In evaluating Rule 600 issues, our standard of review of a trial court s decision is whether the trial court abused its discretion. Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc), appeal denied, 583 Pa. 659, 875 A.2d 1073 (2005). 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. An appellate court must view the facts in the light most favorable to the prevailing party. 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. * * * So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in a manner consistent with society s right to punish and deter crime. Id. at 1238-39 (internal citations and quotation marks omitted). -2- J-S27001-14 In assessing a Rule 600 claim, the court must exclude from the time for commencement of trial any periods during which the defendant was unavailable, including any continuances the defendant requested and any periods for which he expressly waived his rights under Rule 600. Pa.R.Crim.P. 600(C). [I]n addition to any other circumstances precluding the availability of the defendant or the defendant s attorney, the 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 physically incapacitated or mentally incompetent to proceed; or during which the defendant was absent under compulsory process requiring his or her appearance elsewhere in connection with other judicial proceedings. Commonwealth v. McNear, 852 A.2d 401, 405-6 (Pa.Super. 2004) (quoting Pa.R.Crim.P. 600, Comment (emphasis added)). It is generally held that Rule [600] is tolled where the Commonwealth shows, by a preponderance of the evidence, that it has acted with due diligence in seeking extradition to bring the defendant to trial ¦. McNear, supra at 406 (quoting Commonwealth v. DeMarco, 481 A.2d 632 (Pa.Super. 1984)). In determining whether the police acted with due diligence [in trying to apprehend a defendant], a balancing process must be employed where the court, using a common sense approach, examines the activities of the police and balances [these] against the interest of the accused in receiving a fair trial. Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa.Super. 1991), appeal denied, 530 Pa. 631, 606 A.2d 901 (1992). -3- The actions J-S27001-14 must be judged by what was done, not by what was not done. In addition, the efforts need only be reasonable; lack of due diligence should not be found simply because other options were available or, in hindsight, would have been more productive. Id. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Randal B. Todd, we conclude Appellant s issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed July 15, 2013, at 5-12) (finding: Commonwealth did not engage in misconduct to evade Appellant s right to speedy trial; Appellant committed armed robbery in Allegheny County on July 15, 2010; Appellant subsequently fled Pennsylvania and embarked on multi-state crime spree; Commonwealth filed criminal complaint on August 17, 2010; Detective Johnson credibly testified about Commonwealth s efforts to locate Appellant after filing criminal complaint; in August 2010, Detective Johnson learned Appellant was incarcerated in Georgia and contacted its department of corrections on numerous occasions to inquire about Appellant s status; Georgia authorities informed Detective Johnson that other jurisdictions had filed criminal complaints against Appellant before Allegheny County, and Georgia would not extradite Appellant until after he served time on Georgia sentences; on November 1, 2011, Commonwealth forwarded detainer to Georgia prison where Appellant was incarcerated; -4- J-S27001-14 Appellant was continuously incarcerated in Georgia from August 2010 until February 27, 2012, when prison officials released him to Commonwealth s custody; although 737 days elapsed between filing date of criminal complaint and start of trial, 563 days of excludable delay existed due to Appellant s incarceration in Georgia; Commonwealth acted with due diligence in seeking extradition given Appellant s flight and out-of-state incarceration). Accordingly, we affirm on the basis of the trial court opinion. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/22/2014 -5-

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