Com. v. Pagan, M. (memorandum)

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J-S18003-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. MARIO PAGAN, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3020 EDA 2011 Appeal from the Judgment of Sentence Entered October 3, 2011, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0011203-2008. BEFORE: SHOGAN, JENKINS and PLATT*, JJ. MEMORANDUM BY SHOGAN, J.: FILED MAY 02, 2014 Appellant, Mario Pagan, appeals from the judgment of sentence imposed on his convictions of possession of a controlled substance and possession with intent to deliver. On appeal, Appellant challenges the denial of his motion to dismiss pursuant to Pa.R.Crim.P. 600. We affirm. Appellant was charged with the above-mentioned crimes on April 24, 2008. On September 2, 2010, Appellant filed a Rule 600 motion to dismiss. Following a bifurcated hearing on September 7, 2010, and October 6, 2010, Adam Beloff conducted a waiver trial on June 15, 2011, and found Appellant guilty of both crimes. Judge Beloff sentenced Appellant on October 3, 2011, ________________ *Retired Senior Judge assigned to the Superior Court. J-S18003-14 to a mandatory minimum sentence of incarceration for two to four years followed by two years of probation. This appeal followed.1 Due to the unavailability of the October 6, 2010 Rule 600 hearing transcript, Appellant filed a motion for remand in this Court pursuant to Pa.R.A.P. 1923. Appellant and the Commonwealth filed statements in lieu of the transcript, and Judge Coleman filed findings of fact regarding the October 6, 2010 hearing. This matter is now ripe for review. Appellant argues that the trial court erred in denying his Rule 600 motion to dismiss for two reasons: Appellant was not brought to trial within the time limits contemplated by the rule, and the Commonwealth did not We disagree. principles: In evaluating Rule [600] issues, our standard of review of a trial court abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if 1 of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In response, Judge Beloff requested that Judge Coleman file a Rule 1925(a) record does not contain an opinion by Judge Coleman or Judge Beloff, who no longer sits as a judge in Philadelphia County. -2- J-S18003-14 in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused. 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. Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa. Super. 2013) (quoting Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa. Super. 2007) (en banc) (citation omitted)). Rule 600 provides, in pertinent part, as follows: (A) Commencement of Trial; Time for Trial * * * (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. * * * -3- J-S18003-14 (3)(a) When a judge or issuing authority grants or denies a continuance: (i) the issuing authority shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance; and (ii) the judge shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance. The judge also shall record to which party the period of delay caused by the continuance shall be attributed, and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with this rule. (b) The determination of the judge or issuing authority is subject to review as provided in paragraph (D)(3). (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, 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. (2) Except in cases in which the defendant is not entitled to release on bail as provided by law, when a defendant is held in pretrial incarceration beyond the time set forth in paragraph (B), attorney, or the defendant if unrepresented, may file a written motion requesting that the defendant be released immediately on nominal bail subject to any nonmonetary conditions of bail imposed by the court as permitted by law. 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. (3) Any requests for review of the determination in paragraph (C)(3) shall be raised in a motion or answer filed pursuant to paragraph (D)(1) or paragraph (D)(2). -4- J-S18003-14 Pa.R.Crim.P. 600(A), (C), and (D). We have explained that Rule 600 has the dual purpose of al ultimately provides for the dismissal of charges if the Commonwealth fails to bring the defendant to trial within 365 subject to certain exclusions for delays attributable to the defendant. Pa.R.Crim.P. 600(A)(3), (G). Conversely, to protect charges, [R]ule 600 requires the court to consider whether the [C]ommonwealth exercised due diligence, and whether the circumstances occasioning the delay of trial were beyond the control, the motion to dismiss shall be denied. Pa.R.Crim.P. 600(G). The Commonwealth, however, has the burden of demonstrating by a preponderance of the evidence that it exercised due diligence. As has been oft stated, due 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. If, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant. Pa.R.Crim.P. 600(G). Commonwealth v. Bradford, 46 A.3d 693, 701 702 (Pa. 2012) (internal case citations and quotation marks omitted). In determining whether Rule 600 has been violated, the courts of this Commonwealth employ three steps: First, Rule 600(A) provides the mechanical run date. Second, we determine whether any excludable time exists pursuant to Rule 600(C). We add the amount of excludable time, if any, to the mechanical run date to arrive at an adjusted run date. -5- J-S18003-14 If the trial takes place after the adjusted run date, we apply the due diligence analysis set forth in Rule 600(D). As we have explained, Rule 600 encompasses a wide variety of circumstances under which a period of delay was outside the control of the Commonwealth and not the result of the of delay results in an extension of the run date. Addition of any Rule 600 extensions to the adjusted run date produces the final Rule 600 run date. If the Commonwealth does not bring the defendant to trial on or before the final run date, the trial court must dismiss the charges. Armstrong, 74 A.3d at 236 (quoting Ramos, 936 A.2d at 1103 (footnote and citations omitted)). In the case at hand, the Commonwealth filed charges against Appellant on April 24, 2008. Pursuant to Rule 600, the mechanical run date for bringing Appellant to trial was April 24, 2009. Appellant went to trial on June 15, 2011. The only time period in dispute for purposes of calculating the adjusted run date is February 3, 2009 through April 30, 2009, a total of eighty-six days.2 According to the Criminal Docket, the Commonwealth Id. The parties agree that if those eighty-six days were charged against the Commonwealth, then the final run date was August 11, 2010. 2 The The parties agree that any time after the Rule 600 motion hearing on Brief at 16 17. -6- J-S18003-14 Rule 600 motion hearing occurred on September 7, 2010, which was twentyseven days after the final run date. Under this scenario, the Commonwealth -six days were counted as excusable delay, the final run date fell beyond the Rule 600 motion hearing on September 7, 2010. Under this scenario, the Appellant claims that the eighty-six days were not excusable delay because the Commonwealth failed to present sufficient evidence of its due diligence regarding the February 3, 2009 date. at 24. Specifically, Appellant In response, the Commonwealth claims it was only required to establish that it subpoenaed The record reveals that, on the first Rule 600 motion hearing date, Judge Coleman relied on Commonwealth v. Peterson, 19 A.3d 1131, 1138 1139 (Pa. Super. 20011) (en banc), in concluding that the district even if the officers wer Peterson is established by -7- J-S18003-14 the issuance of the subpoena itself; whether or not [the officers] appear is a Id. at 18 (emphasis supplied). In an effort to complete the record and bolster its position, the Commonwealth requested a continuance to produce documentation supporting its subpoena request, and defense counsel did not object. Id. On the second hearing date, the Commonwealth presented documentary evidence that it ordered subpoenas for the officers in question. request to his Statement in Absence of Transcript Pursuant to Pa.R.A.P. 1923. Relying on his notes and recollection from the October 6, 2010 hearing, Judge Coleman made the following findings of fact: Officer Wheeler and Officer Collaretti testified that they did not remember being on vacation and out sick respectively on February 3, 2009. Neither Officer Wheeler nor Officer Collaretti could produce copies of subpoenas for February 3, 2009. subpoena request for both Officers to be in court on February 3, 2009. standard operating procedure in requesting a subpoena for each Findings of Fact in Absence of Transcript Pursuant to Pa.R.A.P. 1923, 8/16/13. -8- J-S18003-14 We note that Peterson wice, Peterson, 19 A.3d at 1137, 1139. In both instances, the officer had been subpoenaed by the Commonwealth. Id. at 1137 1138, n.8. This Court en banc to appear was beyond the control of the Commonwealth; therefore, the Commonwealth acted with due diligence in prosecuting the complaint. Id. at 1139. Based on our review of the case sub judice in the light most favorable to the Commonwealth, we conclude that the certified record supports Judge indings of fact. We further conclude that the rationale of Peterson asserted that it followed standard procedures and requested subpoenas for the officers to appear on February 3, 2009. Additionally, the parties agree and the N.T., 9/7/10, at 6 7. record confirms that the Commonwealth produced a copy of an internal document from the district notices to the officers. Statement [of the Evidence] in Absence of Transcript Pursuant to Pa.R.A.P. 1923, 4/17/13, at Attachment. -9- Furthermore, the J-S18003-14 Docket Entry, 2/3/09. Based on this record, we agree with the trial court that the eighty-sixbeyond the control of the Commonwealth; therefore, the Commonwealth acted with due diligence in prosecuting the complaint. Rule 600 motion. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/2/2014 -10- Thus, we conclude

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