Com. v. Lewis, C. (memorandum)

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J-S07023-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. CRAIG ALLAN LEWIS Appellant No. 915 MDA 2013 Appeal from the Judgment of Sentence of April 29, 2013 In the Court of Common Pleas of York County Criminal Division at No.: CP-67-CR-0001730-2012 BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J.* MEMORANDUM BY WECHT, J.: FILED JUNE 30, 2014 Craig Allan Lewis appeals from his April 29, 2013 judgment of sentence. Lewis argues that the Commonwealth violated the tenets of Pa.R.Crim.P. 600 by failing to bring his case to trial in a timely fashion. For the reasons that follow, we affirm. The underlying facts of this case are not in material dispute. On January 21, 2012, the Northern York County Regional Police Department Manchester Township. Upon arriving, the responding officer found the victim, David Whitcomb, in the parking lot of a local bar. Whitcomb had been shot in the stomach following an altercation that began inside of the ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S07023-14 establishment. Police obtained video surveillance footage of the parking lot taken at the time of the incident. On the same day, the police also received an anonymous tip that Lewis was the shooter. See Affidavit of Probable Cause, 1/21/2012, at 2. Still images from the surveillance footage, as well as a photographic lineWhitcomb at the hospital. Whitcomb positively identified Lewis from both the surveillance footage and the photographic line-up. Further police research revealed that Lewis previously had been an inmate housed at the Id. The NYCRPD filed a criminal complaint against Lewis that same day. On January 22, 2012, Lewis appeared in court for a preliminary arraignment. Preliminary Arraignment/Hearing Notice, 1/22/2012, at 1. A 2012, id., but was rescheduled to March 1, 2012, by the magisterial district court on its own motion. See Preliminary Hearing Notice, 1/23/2012, at 1; see also Recommitment, 3/1/2012, at 1. At the March 1, 2012 preliminary hearing, Lewis waived his formal arraignment and entered a plea of not guilty. See Waiver of Arraignment, 4/17/2012, at 1.1 A pre-trial conference was scheduled for May 22, 2012. By criminal information filed on March 29, 2012, Lewis was charged with criminal attempt--criminal homicide, ____________________________________________ 1 Although Lewis signed the formal arraignment waiver on March 1, 2012, the document was not filed of record until April 17, 2012. -2- J-S07023-14 aggravated assault--serious bodily injury, aggravated assault--bodily injury, simple assault, and recklessly endangering another person.2 Before the May 22, 2012 pre-trial conference, Lewis was transferred from the York County Prison to the Dauphin County Prison. 3 Notes of Testimony--Pre-Trial Conference, 5/22/2012, at 2. However, Lewis was not transported back to York County for the May 22 pre-trial conference. In response, the trial court issued a bench warrant as a detainer. Id. The trial -trial conference for June 19, 2012, and entered an order directing the warden of the Dauphin County Prison to transport -trial conference was held one day early. Id. at 2. However, Lewis was not tried in August 2012. For unkno case until February 2013. ____________________________________________ 2 18 Pa.C.S. §§ 901(a) (18 Pa.C.S. § 2501(a)), 2702(a)(1), 2702(a)(4), 2701(a)(1), and 2705, respectively. 3 Lewis claims that he was transferred to Dauphin County pursuant to a concedes as much, explaining that Lewis was transferred from York County to our review. -3- J-S07023-14 has been in continuous custody in excess of 365 days and his case has not yet been called for trial, in fact as of the filing of this [m]otion, he will have (unnumbered). Thus, Lewis asserted that his continuing incarceration was On February 21, 2013, the Commonwealth filed a response alleging fails to [substract] both excludable [time] and excusable [delay], which Specifically, the Commonwealth identified several periods of time that it argued should be excluded, or excused, from the calculation of the one-year period prescribed by Rule 600 for the commencement of trial. The trial court aptly has summarized the remaining procedural history of this case, as follows: A hearing was held 2013. At the conclusion of that hearing, [the trial court] denied 2013] and, on March 6, 2013, a verdict of guilty was entered against [Lewis] for [aggravated assault--serious bodily injury]. -trial motions were rejected on April 29, 2013. On May 16, 2013, [Lewis] filed a [n]otice of [a]ppeal. Pursuant to [ Pa.R.A.P. 1925(b), Lewis] was directed to file a statement of [errors] complained of [on appeal]. On June 4, 2013, [Lewis] requested -4- J-S07023-14 and was granted an extension of time [in which] to file his [Rule 1925(b) statement]. The extension was granted until July 6, 2013, two days past the extension deadline.[4] -2. On July 19, 2013, the trial court issued a Rule 1925(a) opinion. Lew motion to dismiss where the Rule 600 adjusted run date had expired and the Commonwealth had not exercised due diligence in its [efforts] to bring Our standard of review in this context is as follows: Our standard of review relating to the application of Rule 600 is whether the trial court abused its discretion. Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en banc). Our scope of review is limited to the evidence on the record of the Rule 600 evidentiary hearing and the findings of the trial court. Id. We must view the facts in the light most favorable to the prevailing party. Id. at 1239. ____________________________________________ 4 extended deadline fell on July 6, 2013, which is a Saturday. T.C.O. at 2. Thus, Lewis actually had until July 8, 2013, to file a timely Rule 1925(b) statement. See 1 Pa.C.S. § in any statute, such period in all cases . . . shall be computed so as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, . . . such day shall statement was timely filed. -5- J-S07023-14 Commonwealth v. Williams abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or Commonwealth v. Hacker, 959 A.2d 380, 392 (Pa. Super. 2008). In pertinent part, the version of Rule 600 that was in effect at the time that Lewis committed the above offense5 provided as follows: Rule 600. Prompt Trial (A) * (3) * * Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail,[6] shall commence no later than 365 days from the date on which the complaint is filed. ____________________________________________ 5 A new version of Pa.R.Crim.P. 600 was adopted on October 1, 2012, and it took legal effect on July 1, 2013. See Pa.R.Crim.P. 600 comment. Lewis shot Whitcomb on January 21, 2012, which is more than nine months before the new version of Rule 600 had been adopted. Thus, we will review n of Rule 600 that was in effect at the time that he committed the instant offense. See Commonwealth v. Colon, 87 A.3d 352, 357 n.3 (Pa. Super. 2014). 6 Commonwealth v. Peterson, 19 A.3d 1131, 1135-36 (Pa. Super. 2011). defendants who are not eligible for bail or were otherwise not free on bail at the time that the 365Commonwealth v. Colon, 87 A.3d 352, 357 n.4 (Pa. Super. 2014); see Commonwealth v. Peterson, 19 A.3d 1131, 1135-36 n.4 (Pa. Super. 2011). Thus, we will apply the -6- J-S07023-14 * (C) * * In determining the period for commencement of trial, there shall be excluded therefrom: (1) the period of time between the filing of the written complaint and the de the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence; (2) any period of time for which the defendant expressly waives Rule 600; (3) such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the (b) any continuance granted at the request of the (G) * * * If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain . . . . 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. This Court has discussed the requirements of Rule 600, and the calculation of the relevant time period, in the following way: [Rule 600] was designed to implement the speedy trial rights provided by the Sixth Amendment to the United States -7- J-S07023-14 Constitution and by Article I, Section 9 of the Pennsylvania Constitution. Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995). The constitutional provisions themselves continue to provide a separate basis for asserting a claim of undue delay in appropriate cases. Id. The first step in determining whether a technical violation of Rule 600 has occurred is to calculate the Commonwealth v. Aaron, 804 A.2d 39, 42 (Pa. Super. 2002). The mechanical run date is the date by which the trial must commence under Rule 600. Id. It is calculated by ascertaining the number of days in which the Commonwealth must commence trial under Rule 600 and counting from the date on which the criminal complaint was filed. Id. The mechanical run date can be modified or extended by adding any periods of time in which the defendant causes delay. Id. Once the mechanical run date is modified Id. Commonwealth v. Hunt, 858 A.2d 1234, efined in Rule 600(C) as the period of time between the filing of the written defendant could not be apprehended because his whereabouts was unknown and could not be determined by due diligence; any period of time for which the defendant expressly waives Rule 600; and/or such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the req Id. (citing the defendant. Id. at 1241 n.10. The other aspects of Rule 600(C) due diligence by the Commonwealth. Id. not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the C diligence. See id. at 1241-42 (explaining manner in which excludable time, excusable delay and due diligence are to be determined); see also DeBlase, 665 A.2d at 431 (discussing excludable time and excusable delay). Commonwealth v. Murray, 879 A.2d 309, 313 (Pa. Super. 2005) (internal citations modified). -8- J-S07023-14 To summarize, the courts of this Commonwealth employ three steps . . . in determining whether Rule 600 requires dismissal of charges against a defendant. First, Rule 600(A) provides the mechanical run date. Commonwealth v. Cook, 676 A.2d 639, 646 n.12 (Pa. 1996). 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. Id. If the trial takes place after the adjusted run date, we apply the Commonwealth v. Ramos considering these matters, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the Id. criminal complaint was filed against Lewis on January 21, 2012. Therefore, -two days after g from -trial conference from May 22, 2012, to June 18, 2012; and (3) the continuance that the Commonwealth argues Lewis requested when the rial for August 2012 (and not July 2012). Brief -9- J-S07023-14 for the Commonwealth at 4-10 (unnumbered). We will begin by addressing the excludability of each of these periods of time, in turn. Pa.R.Crim.P. 600(C). ring originally was scheduled for February 1, 2012, but was continued until March 1, 2012. The twenty-nine day continuance was the necessary result of judicial time constraints. As Lewis aptly notes in his brief, see Brief for Lewis at 12-13, this Court not excludable for purposes of calculating the Rule Commonwealth v. Lynn, 815 A.2d 1053, 1057, 1057 n.5 (Pa. Super. 2003) (emphasis added) (citing Commonwealth McCutcheon, 488 A.2d 281, 282-84 (Pa. Super. 1985)). v. Therefore, we may not exclude this twenty-nine-day period as attributable to Lewis.7 Id. ____________________________________________ 7 The Commonwealth asserts that, because this delay was due to the magisterial diligence, that period is excludable Commonwealth at 7 (emphasis added) (citing Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. Super. 2007)). The Commonwealth has conflated Lynn, supra considered when which would require this Court to apply the tenets of Rule 600(G) and determine whether there was any excusable delay. See Ramos, supra. ains to the this twenty-nine day period is excludable under Rule 600(C). (Footnote Continued Next Page) - 10 - However, J-S07023-14 -trial conference. Lewis originally was scheduled to take part in a pre-trial conference on May 22, 2012. However, Lewis was transferred from the York County Prison to the Dauphin County Jail upon the basis of a January 24, 2012 order that apparently stemmed from a prisoner transfer motion advanced by the Commonwealth. See was incarcerated in the Dauphin County Prison for his own safety by motion of the Commonwealth as of January 24, 2 from Dauphin County. The following exchange took place at the May 22, 2012 pre-trial conference: Your Honor, [Lewis] is not here. Counsel is here on his behalf. I did check the prison screen. Apparently, [Lewis] was transported to Dauphin County. why he was not transported here today. THE COURT: (Footnote Continued) _______________________ due diligence is relevan supra; see infra at 17-21. Ramos, - 11 - J-S07023-14 Yes, Your Honor. THE COURT: We should probably issue a bench warrant to get a detainer to bring him back. [COMMONWEALTH]: Yes, Your Honor. Yes. THE COURT: [Lewis] has failed to appear. We issue a bench warrant, authorizing custody of [Lewis] and transfer him to York County for purposes of appearing on his case. We will put this back on the docket for June 19th, 2012, at 9:00 in the custody of him at that time, obviously, we will have to continue it until he is available. Notes of Testimony--Pre-Trial, 5/22/2012, at 2-3; see N.T. at 11-13. unavailable within the meaning of Rule 600 if the Commonwealth demonstrates by a preponderance of the evidence that it exercised due diligence in attempting to procure t Commonwealth v. McNear, 852 A.2d 401, 404 (Pa. Super. 2004) (citing Commonwealth v. Hill -diligence [sic] is a fact-specific concept that is determined on a case-byId. (citing Commonwealth v. Wallace, 804 A.2d 675, 680 (Pa. Super. care, but rather a showing by the Commonwealth that a reasonable effort - 12 - J-S07023-14 Id. (citing Hill, 736 A.2d at 588). In its brief before this Court, the Commonwealth has not discussed this period of time at all. Because it has failed to address this issue at all, we are constrained to conclude that the Commonwealth has failed to demonstrate that it acted with due diligence in attempting to ensure Lewis presence at the May 22, 2012 pre-trial conference. The record indicates that Lewis was transported to the Dauphin County for dismissal, the Commonwealth conceded that it failed to act with 3, at 6 ¶22. Furthermore, the Commonwealth devoted the entirety of its argument at the Rule 600 hearing to arguing that this period should be excludable due to the Dauphin County. N.T. at 10-13. This argument flatly ignores the precedent cited above, which assigns to the Commonwealth the burden of establishing Based upon t pursuant to Rule 600 during the period between May 22, 2012, and June 18, pursuant to Rule 600(C). See McNear, supra. - 13 - J-S07023-14 We now turn to the final period of potentially excludable time, which term, and not its July 2012 term. At the June 18, 2012 pre-trial conference, the parties discussed the most efficacious trial. The following exchange took place: [COMMONWEALTH]: he indicates that this matter is to be listed for trial. He is attached for the July term, but I believe this could go during the August, 2012 term. Yep. * THE COURT: * * Any other issues? No. Ready to go for trial. THE COURT: I have a pre-trial with Judge Kennedy tomorrow. I think happen. * * * THE COURT: August term of Criminal Court. [Lewis is] remanded to the York County Prison to await trial. Notes of Testimony-Pre-Trial, 6/18/2012, at 1-2. Our reading of this exchange indicates that the Commonwealth putatively was prepared to - 14 - J-S07023-14 counsel asserted that he was unsure that he would be able to proceed to trial within that time frame due to a representative obligation in another me for commencement of trial any periods during which the defendant was Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super. 2004) (citing Commonwealth v. Taylor, 598 A.2d 1000, 100 the defense [indicates] approval or acceptance of the continuance, the time associated with the continuance is excludable under Rule 600 as a defense Id. (citing Commonwealth v. Guldin, 463 A.2d 1011, 1014 (Pa. 1983)). The question presented by this third period is a close one. request as a formal continuance. See N.T. at 15. While However, viewing the evidence in the light most favorable to the Commonwealth as the prevailing party, see Williams, supra, we conclude that the defense request to for the purposes of Rule 600. Hunt, supra. Thus, we must The prewas scheduled for August 17, 2012. See Brief for Lewis at 10; Brief for the - 15 - J-S07023-14 Commonwealth at 9. The Commonwealth, Lewis, and the trial court all claim or not, under Rule 600. We disagree. Our statutory law indicates that the metric for measuring excludable time under Rule 600 is the unavailability of the defendant. While the defense entered its request for a later scheduling date on June 18, 2012, it does not necessarily follow that we must measure from the date of the putative continuance request. Rather, the clear terms of Rule 600 indicate that we measure unavailability. See of proper period of excludable time under Rule 600 is measured by calculating how long trial actually was delayed by the defendant. ce on June 18, 2012, trial was not scheduled to begin on that date. As evinced by the testimony See Notes of TestimonyPre-Trial, 6/18/2012, at 1-2. The certified record is silent as to which dates the York County Court of Common Pleas had set aside for its criminal docket in July 2012. However, Lewis asserts, and the Commonwealth does not dispute, that the relevant criminal term of court was from July 9 to July 13, 2012. Brief for Lewis at 11. - 16 - J-S07023-14 Viewing this evidence in the light most favorable to the Commonwealth, the earliest date upon which Lewis could have been brought Lewis ran from July 9, 2012, to August 17, 2012. This thirty-nine day period January 21, 2013. Accordingly, adding thirty- did not commence until Monday, March 4, 2013. Therefore, we are constrained to conclude that the Commonwealth beyond the permissible adjusted run date. Because the Commonwealth brought Lewis to trial beyond the 365-day period mandated by Rule 600, we must assess whether, in spite of this violation, the Commonwealth acted with the necessary diligence to excuse an untimely trial: to dismiss the charges should be denied if the Commonwealth exercised due diligence and the circumstances occasioning the postponement were beyond the c Hill, 736 A.2d at 591. -specific concept that must be determined on a case-byId. require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has Id. (emphasis added). [defendant] was brought to trial within the time prescribed by - 17 - J-S07023-14 Aaron, 804 A.2d at 43 44; see Hill, 736 A.2d at 592 (finding Commonwealth exercised due diligence when it initially scheduled trial well within [the] time requirements of Rule [600] but trial was delayed by actions of defendant beyond run date the Commonwealth was ready to commence trial and resulted in a trial date three days beyond the run date. Commonwealth v. Wroten, 451 A.2d 678, 680 81 (Pa. Super. 1982) (holding inadvertent administrative error is not enough to defeat due diligence); see also Commonwealth v. Corbin, 568 A.2d 635, 638-39 (Pa. Super. 1990) (holding inadvertent listing beyond run date due to overburdened docket, meager staff, and administrative breakdown at detention center, excused Commonwealth with respect to unavailability of its witness); cf. Commonwealth v. Browne, 584 A.2d 902 (Pa. 1990) (plurality) (holding due diligence imposes duty on Commonwealth to employ simple recordkeeping systems to track arraignment dates on a routine basis to ensure compliance with Rule 600); McCutcheon, 488 A.2d 281 (Pa. 1985) (holding Commonwealth did not exercise due diligence in bringing case had stalled for nine months; Court concluded Commonwealth had no system to assure that cases held for court were properly processed and such failure in recordkeeping precluded finding of due diligence). Hunt, 858 A.2d at 1241-42. The only argument advanced by the Commonwealth with regard to its due diligence8 ____________________________________________ 8 the Commonwealth took no further steps toward prosecuting Lewis. In point of fact, the certified record indicates that neither the Commonwealth nor Lewis took any official action between the pre-trial conference on June 18, (Footnote Continued Next Page) - 18 - J-S07023-14 Commonwealth could ha -6. Furthermore, the magisterial district court entered a certification that this one-month delay was occasioned solely by judicial scheduling constraints: (Footnote Continued) _______________________ Rule 600 hearing in this case, the trial court noted that inexplicably had languished on the criminal docket for seven months: listed for the August term of court. It was never tried during August, September, October, November, December, January, or February. And I can tell you that at least for one of these weeks begging for cases to be tried. N.T. at 15-16. This statement from the trial court indicates that the court was a -month delay of his case. See Hunt, supra. However, we are also cognizant that the scope of our appellate review is restricted to that evidence which was presented at the Rule 600 hearing. In relevant part, the Commonwealth specifically declined to address its due diligence with respect to this seven-month delay in its argument before the trial court: The only reason that the [c]ourt should arrive at a due diligence been tried . . . during a subsequent term is if we exceeded the adjusted run time. And our contention is that we did not exceed the adjusted run time. belief that it brought Lewis to trial within the adjusted run time mandated by Rule 600 is plainly erroneous. See supra at 18-19. In relevant part, it during this seven-month period. Consequently, we conclude that this seven). - 19 - J-S07023-14 scheduled for February 1, 2012. Due to a busy court schedule, the [magisterial district judge] continued the preliminary hearing until March 1, 2012. This continuance was not requested by either party. This was the earliest available date consistent with Certification of Court Continuance, 2/21/2013, at 1; see Notes of Testimony -10. delay is a justifiable basis for an extension of time if the Commonwealth is Wroten, 451 A.2d at 681 (citing Commonwealth v. Cimaszewski, 395 A.2d 931, 933 (Pa. Super. 1978)). Furthermore, our bey the actions of a magisterial district judge, constituted due diligence. Commonwealth v. Bradford, 46 A.3d 693, 704-05 (Pa. 2012). Additionally, we note that issues implicating Rule 600 call upon us to balance 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 Hunt, 858 A.2d at 1239 (quoting Corbin, 568 A.2d at 638-39). Based upon the foregoing discussion, and viewing the evidence in a light favorable to the Commonwealth as the prevailing party, we conclude - 20 - J-S07023-14 that the one-month continuance entered by the magisterial district judge pursuant to Pa.R.Crim.P. 600(G). This is the same type of administrative error that this Court found insufficient to establish Rule 600 relief in Wroten, and which our Supreme Court found insufficient in Bradford. Excusing the twenty-nine-day period of delay occasioned by the magisterial district court, we conclude that the Commonwealth acted with due diligence the trial court did not abuse its discretion. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/30/2014 - 21 -

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