J-S74027-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FRANK ROSELLI, :
:
Appellant : No. 891 EDA 2014
Appeal from the Judgment of Sentence July 10, 2012,
Court of Common Pleas, Montgomery County,
Criminal Division at No. CP-46-CR-0000820-2011
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JANUARY 13, 2015
Frank Roselli (“Roselli”) appeals from the judgment of sentence
entered following his convictions of burglary and theft by unlawful taking.1
Following our review, we affirm.
The trial court ably summarized the operative facts as follows:
These charges arose out of an incident that occurred
on January 19, 2011[,] a little after midnight. At that
time, Officer James Lee was called to 1728 DeKalb
Street in Norristown, Pa. for a report of a burglary in
progress. As he arrived at 1728 DeKalb Street and
walked up the driveway, Officer Lee saw two other
officers dealing with [Roselli] who was on the ground
at that time. He also noticed a woman by the name
of Rochelle Wisniewski who was yelling, and Joseph
Staiber who identified himself as the homeowner.
Prior to Officer Lee’s arrival, Staiber and Wisniewski
returned home from a dinner at approximately 12:15
a.m. on January 19, 2011. As they were pulling up
1
18 Pa.C.S.A. §§ 3502(a), 3921(a).
*Retired Senior Judge assigned to the Superior Court.
J-S74027-14
the driveway, Wisniewski saw someone in the home
and said something to the effect of “that’s not Joey,’
referring to their 19-year-old son. Staiber looked up
and also saw an individual who he did not recognize
in the home. Staiber threw his phone at Wisniewski
and told her to call the police while he got out of the
car. As he entered the home through the main
entrance, Staiber grabbed a hockey stick that was
propped up against the house for protection. When
he got into his home, he saw [Roselli] moving fast
toward the front of the house. [Roselli] was holding
Wisniewski’s red suitcase with wires hanging out of it
and Staiber noticed [that] [Roselli] was carrying two
laptops, two iPads, and bottles of liquor underneath
his arms.
[Roselli] exited through the front door and Staiber
followed him down the driveway and then north on
DeKalb Street. Staiber continued to follow [Roselli]
who was dropping Staiber’s items onto the ground,
which was covered in ice and snow at the time.
After circling the block, [Roselli] eventually ran back
toward Staiber’s home and when [Roselli] became
within 15-20 feet from Wisniewski, Staiber hit him
with the hockey stick. At that point the police had
arrived.
The police took [Roselli] into their custody while
Staiber and Officer Lee retraced the path to try to
recover Staiber’s property. When they returned to
their home, Staiber and Wisniewski noticed their
entire house was ransacked and multiple items were
missing. Additionally, [Roselli] was searched after
being taken into custody and said search yielded
multiple items including U.S. [c]urrency; seven
rings; nine earrings; seven pendants; three watches;
five bracelets; thirteen necklaces; one hair barrette;
an ornamental cross; a tie tack; three bottles of
medication prescribed to Staiber and Wisniewski; a
Garmin GPS unit; a Nikon camera; two small book
reading lights; two mini LED flashlights; a corkscrew;
and a golf ball marker. At the police station the next
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day, Staiber identified all of these items as belonging
to him and his girlfriend, Wisniewski.
A [c]riminal [c]omplaint was issued January 19,
2011 and [Roselli] was ultimately convicted by a jury
of [b]urglary and [t]heft by [u]nlawful [t]aking on
April 12, 2012. On July 10, 2012, this court
sentenced [Roselli] to serve a mandatory term of
imprisonment of [twenty-five] to [fifty] years under
42 Pa.C.S.A. § 9714(a)(2).
Trial Court Opinion, 6/10/14, at 1-3.
The procedural history following Roselli’s conviction is somewhat
complicated, but it is sufficient to note that he filed a post-sentence motion,
which the trial court denied after a hearing thereon. Roselli’s trial counsel,
the Public Defender’s Office, filed an untimely notice of appeal, which this
Court quashed. Roselli’s direct appeal rights were subsequently reinstated
as result of a PCRA petition filed on Roselli’s behalf. This timely appeal
follows.
Roselli presents the following eight issues on appeal:
I. Whether the weight of the evidence fails to
support the jury’s finding [that] [Roselli]
committed the crimes of [b]urglary [] and
[t]heft by [u]nlawful [t]aking [], and
specifically that Joseph Staiber was inside 1728
DeKalb Street in Norristown on January 19,
2011?
II. Whether the trial court erred in failing to
suppress the physical evidence found during a
warrantless search of [Roselli]?
III. Whether Joseph Staiber’s statement to police
should have not been given to the jury during
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deliberations as this was not admitted as
evidence at the time of trial?
IV. Whether [Roselli] should be awarded a new
trial or resentenced without application of 42
Pa.C.S.[A.] § 9714(a)(2) because the jury’s
finding that Joseph Staiber was inside 1728
DeKalb Street in Norristown on January 19,
2011 at the same time as [Roselli] is not
supported by competent evidence of record,
and without such a finding the [b]urglary
conviction does not fall within the definition of
“crime of violence” within the meaning of
“three-strikes law” and that the application of
the “three-strikes law” for an enhanced
sentence is illegal in this case?
V. Whether Pennsylvania’s mandatory minimum
statute set forth in 42 Pa.C.S.[A.] § 9714 is
unconstitutional in that it permits an automatic
increase of a defendant’s sentence beyond the
statutory maximum, without notice and
without a jury finding beyond a reasonable
doubt for its application in violation of the
United States and Pennsylvania Constitutions,
as well as Alleyne v. United States, 133
S.Ct. 2151 ([U.S.] 2013)?
VI. Whether Pennsylvania’s mandatory minimum
statute set forth in 42 Pa.C.S.[A.] § 9714 is
unconstitutional as applied to this matter in
that it permitted an automatic increase of a
defendant’s sentence beyond the statutory
maximum, without notice and without a jury
finding beyond a reasonable doubt for its
application in violation of United States
Constitutions, as well as Alleyne v. United
States, 133 S.Ct. 2151 ([U.S.] 2013)?
VII. Whether the Commonwealth failed to prove
that the enhanced sentencing penalties set
forth in 42 Pa.C.S.[A.] § 9714 should be
applied in this matter because the facts
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underlying the prior convictions were based
upon hearsay, as objected to by defense
counsel, consisting of [a]ffidavits of [p]robable
[c]ause and [b]ills of [i]nformation?
VIII. Whether the trial court erred in denying
[Roselli’s] [m]otion for dismissal pursuant to
Pa.R.Crim.P. Rule [sic] 600 because he was
not brought to trial within 365 days of the filing
of the criminal complaint?
Roselli’s Brief at 6-7.
Many of these issues involve overlapping considerations, and where
issues overlap, we will address them together. We begin with Roselli’s first
issue, which is a challenge to the weight of the evidence supporting his two
convictions.
Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the
weight of the evidence. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
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conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on the
foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the
original) (citations omitted).
Accordingly, we are mindful that as we review Roselli’s claim, we are
not passing on the underlying question of whether the verdicts were against
the weight of the evidence, but rather we are considering whether the trial
court abused its discretion in denying his motion for a new trial based upon
his claim that the verdict was against the weight of the evidence. We are
focused, therefore, on evidence that the trial court’s ruling is “manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill-will.” Id.
Roselli has not presented a relevant argument in light of our standard
and scope of our review. He frames his argument in terms of
inconsistencies between Mr. Staiber’s trial testimony and the content of the
statement he gave to the police, and assails the jury’s fact finding. Roselli’s
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Brief at 20.2 He does not present any argument as to how he believes the
trial court abused its discretion in denying his post-sentence motion. Id. at
20-21. Roselli directs his entire argument to the underlying question of
whether his convictions are against the weight of the evidence. As stated
above, this is not the question before us for review.
Roselli has failed to provide us with relevant argument relative to our
standard of review, and this Court will not develop an argument on his
behalf. See Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super.
2006). In addition, however, our independent review of the record provides
us with ample support for the conclusion that the trial court did not abuse its
discretion in deciding that the verdicts in this case were not against the
weight of the evidence. We therefore find no merit to Roselli’s claim.
In his second issue, Roselli argues that the trial court erred in denying
his motion to suppress items recovered from when the police searched him,
following his arrest, without a warrant. Roselli’s Brief at 21. The trial court
concluded that the arrest was adequately supported by probable cause, and
therefore, pursuant to “well-settled” Pennsylvania law, the police were
entitled to search Roselli following his arrest without a warrant. Trial Court
2
Roselli also includes a one-sentence “argument” contending that an
element of theft by unlawful taking was not established because “the
property was dropped in the presence if the home owner.” Roselli’s Brief at
21. This statement attacks the sufficiency of the evidence supporting
Roselli’s theft conviction, which is a claim that he did not raise in his
statement of questions involved. See Appellant’s Brief at 6-7. As such, we
will not address it. See Pa.R.A.P. 2116(a).
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Opinion, 6/10/14, at 8 (citing Commonwealth v. Ventura, 975 A.2d 1128,
1139 (Pa. Super. 2009)). Roselli counters by asserting only that the arrest
was invalid because “law enforcement did not possess the requisite
information in order to place him under arrest at that point in time[.]”
Roselli’s Brief at 21. He does not cite or discuss relevant case law that
would support his position.3
[I]t is an appellant's duty to present arguments that
are sufficiently developed for our review. [] Gould,
912 A.2d [at] 873 []. The brief must support the
claims with pertinent discussion, with references to
the record and with citations to legal authorities. Id.;
Pa.R.A.P. 2119(a), (b), (c). Citations to authorities
must articulate the principles for which they are
cited. Pa.R.A.P. 2119(b). This Court will not act as
counsel and will not develop arguments on behalf of
an appellant. Gould, 912 A.2d at 873. Moreover,
when defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the
appeal entirely or find certain issues to be waived.
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).
Roselli’s complete failure to cite or discuss relevant case law
significantly impedes our ability to review this issue. The law surrounding
warrantless searches and seizures by the police is highly nuanced and the
application of this law depends almost entirely on the specific details of a
particular case. As such, Roselli’s failure to include citations to and
discussion of relevant case law effectively precludes our ability to
3
We note that Roselli’s entire argument in support of this issue consists of
one paragraph.
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meaningfully review his claim. As stated above, “[this] court will not
become the counsel for an appellant” and develop arguments on an
appellant’s behalf. Gould, 912 A.2d at 873. We therefore find this issue
waived.
Next, Roselli argues that the trial court should not have provided the
jury Mr. Staiber’s statement to the police during its deliberations because it
was never admitted as evidence during trial. Roselli’s Brief at 22. Roselli
concedes that his trial counsel did not object to the statement being given to
the jury.4 He contends, however, that the failure to object “should not
preclude appellate review of this issue as it was inappropriate to permit the
jury to have a piece of evidence that was not properly admitted at trial.” Id.
We cannot agree. It is axiomatic that “[a] defendant must make a timely
and specific objection at trial or face waiver of her issue on appeal.”
Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa. Super. 2006); see also
Pa.R.A.P. 302. We are simply without discretion to overlook Roselli’s failure
to lodge a specific and timely objection to the trial court’s ruling, as he
encourages us to do. Accordingly, this issue is waived.
We now turn to Roselli’s fourth issue, which purports to be an
argument regarding the jury’s finding that Mr. Staiber was in the home at
4
Notably, the record reveals not only that Roselli did not object to the trial
court’s decision to allow the jury to view Mr. Staiber’s statement during
deliberations, but that he actively advocated for it. See N.T., 4/12/12, at
120.
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the same time as Roselli, which is required for the burglary conviction to
constitute a “crime of violence” within the meaning of the “three-strikes
law,” 42 Pa.C.S.A. § 9714 (“§ 9714”). Roselli’s Brief at 6, 23. However, he
puts forth no discussion regarding evidence of Mr. Staiber’s presence in the
home with Roselli. Rather, the entire argument on this point is dedicated to
Roselli’s claim that the evidence presented by the Commonwealth to
establish that Roselli had two prior crimes of violence was hearsay, and
therefore that the trial court erred in relying on it to conclude that § 9714
applied. Id. at 23-27. Similarly, in his seventh issue, Roselli argues that
the evidence put forth by the Commonwealth to prove that § 9714 applied
was hearsay, and therefore incompetent to support the trial court’s
conclusion. Id. at 29. As these issues present the same argument, we
address them together.5
Section 9714 is entitled “Sentences for second and subsequent
offenses.” It provides, in relevant part, as follows:
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of
this Commonwealth of a crime of violence
shall, if at the time of the commission of the
current offense the person had previously been
convicted of a crime of violence, be sentenced
to a minimum sentence of at least ten years of
5
Yet again, the argument presented by Roselli in support of these issues are
badly underdeveloped. In these instances, however, Roselli’s failure to
properly develop this claim does not significantly hamper our ability to
review the issue presented, and so we will not find it waived.
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total confinement, notwithstanding any other
provision of this title or other statute to the
contrary. Upon a second conviction for a crime
of violence, the court shall give the person oral
and written notice of the penalties under this
section for a third conviction for a crime of
violence. Failure to provide such notice shall
not render the offender ineligible to be
sentenced under paragraph (2).
(2) Where the person had at the time of the
commission of the current offense previously
been convicted of two or more such crimes of
violence arising from separate criminal
transactions, the person shall be sentenced to
a minimum sentence of at least 25 years of
total confinement, notwithstanding any other
provision of this title or other statute to the
contrary. Proof that the offender received
notice of or otherwise knew or should have
known of the penalties under this paragraph
shall not be required. Upon conviction for a
third or subsequent crime of violence the court
may, if it determines that 25 years of total
confinement is insufficient to protect the public
safety, sentence the offender to life
imprisonment without parole.
(d) Proof at sentencing.--Provisions of this
section shall not be an element of the crime and
notice thereof to the defendant shall not be required
prior to conviction, but reasonable notice of the
Commonwealth’s intention to proceed under this
section shall be provided after conviction and before
sentencing. The applicability of this section shall be
determined at sentencing. The sentencing court,
prior to imposing sentence on an offender under
subsection (a), shall have a complete record of the
previous convictions of the offender, copies of which
shall be furnished to the offender. If the offender or
the attorney for the Commonwealth contests the
accuracy of the record, the court shall schedule a
hearing and direct the offender and the attorney for
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the Commonwealth to submit evidence regarding the
previous convictions of the offender. The court
shall then determine, by a preponderance of
the evidence, the previous convictions of the
offender and, if this section is applicable, shall
impose sentence in accordance with this
section. Should a previous conviction be vacated
and an acquittal or final discharge entered
subsequent to imposition of sentence under this
section, the offender shall have the right to petition
the sentencing court for reconsideration of sentence
if this section would not have been applicable except
for the conviction which was vacated.
***
(g) Definition.--As used in this section, the term
“crime of violence” means murder of the third
degree, voluntary manslaughter, manslaughter of a
law enforcement officer as defined in 18 Pa.C.S. §
2507(c) or (d) (relating to criminal homicide of law
enforcement officer), murder of the third degree
involving an unborn child as defined in 18 Pa.C.S. §
2604(c) (relating to murder of unborn child),
aggravated assault of an unborn child as defined in
18 Pa.C.S. § 2606 (relating to aggravated assault of
unborn child), aggravated assault as defined in 18
Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated
assault), assault of law enforcement officer as
defined in 18 Pa.C.S. § 2702.1 (relating to assault of
law enforcement officer), use of weapons of mass
destruction as defined in 18 Pa.C.S. § 2716(b)
(relating to weapons of mass destruction), terrorism
as defined in 18 Pa.C.S. § 2717(b)(2) (relating to
terrorism), trafficking of persons when the offense is
graded as a felony of the first degree as provided in
18 Pa.C.S. § 3002 (relating to trafficking of persons),
rape, involuntary deviate sexual intercourse,
aggravated indecent assault, incest, sexual assault,
arson endangering persons or aggravated arson as
defined in 18 Pa.C.S. § 3301(a) or (a.1) (relating to
arson and related offenses), ecoterrorism as
classified in 18 Pa.C.S. § 3311(b)(3) (relating to
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ecoterrorism), kidnapping, burglary as defined in 18
Pa.C.S. § 3502(a)(1)[6] (relating to burglary),
robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii)
or (iii) (relating to robbery), or robbery of a motor
vehicle, drug delivery resulting in death as defined in
18 Pa.C.S. § 2506(a) (relating to drug delivery
resulting in death), or criminal attempt, criminal
conspiracy or criminal solicitation to commit murder
or any of the offenses listed above, or an equivalent
crime under the laws of this Commonwealth in effect
at the time of the commission of that offense or an
equivalent crime in another jurisdiction.
42 Pa.C.S.A. § 9714(a),(d),(g) (emphasis added) (footnote added).
Thus, the law requires that the trial court must make a determination,
based upon evidence before it, whether the defendant has previous
convictions for crimes of violence as defined by subsection (g). At
sentencing in the present case, the Commonwealth offered a certified copy
of Roselli’s conviction of first-degree felony burglary from 1989 in Delaware
County and a copy of the affidavit of probable cause associated with that
conviction. The Commonwealth similarly offered a certified copy of Roselli’s
1998 first-degree felony burglary conviction from Dauphin County as well as
the affidavit of probable cause in that matter. N.T., 7/10/12, at 7-11.
Roselli objected to the affidavits (which were the only documents stating
that another person was present in the home at the time Roselli burglarized
6
“A person commits the offense of burglary if, with the intent to commit a
crime therein, the person[] (1) enters a building or occupied structure, or
separately secured or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense any person is present.”
18 Pa.C.S.A. § 3502(a)(1).
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them) as hearsay. Id. at 8,10-11. The trial court overruled Roselli’s
objection upon its rationalization that it is not bound by the rules of evidence
in a sentencing proceeding, and further that the documents presented by the
Commonwealth were “self-certifying, reliable documents.” Trial Court
Opinion, 6/10/14, at 13. We can see no error in that determination. The
trial court is correct in that
a proceeding held to determine sentence is not a
trial, and the court is not bound by the restrictive
rules of evidence properly applicable to trials.
Commonwealth v. Orsino, [] 178 A.2d 843, 846
(Pa. Super. 1962) (sentencing court has wide
latitude in considering facts, regardless of whether
such facts are produced by witnesses who the court
sees and hears); Commonwealth ex rel.
Hendrickson v. Myers, [] 144 A.2d 367, 371 ([Pa.]
1958) (same); Commonwealth v. Petrillo, [] 16
A.2d 50, 58 ([Pa.] 1940) (same). Rather, the court
may receive any relevant information for the
purposes of determining the proper penalty.
Commonwealth v. Maroney, [] 193 A.2d 640, 642
([Pa. Super.] 1963), citing Orsino, supra.
Although sentencing proceedings must comport with
due process, the convicted defendant need not be
accorded ‘the entire panoply of criminal trial
procedural rights.” Commonwealth v. Wright, []
494 A.2d 354, 360 ([Pa.] 1985), quoting Gardner v.
Florida, 430 U.S. 349, 358 n. 9, 97 S.Ct. 1197,
1205 n. 9, 51 L.Ed.2d 393, 402 n. 9 (1977), aff’d
sub nom. McMillan v. Pennsylvania, 477 U.S. 79,
106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In fact, “[t]he
due process clause should not be treated as a device
for freezing the evidential procedure of sentencing in
the mold of trial procedure.” Maroney, 193 A.2d at
642, quoting Williams v. New York, 337 U.S. 241,
251, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337, 1344
(1949) (as a matter of federal law, some hearsay
concerning criminal conduct not resulting in
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conviction may be permitted in a sentencing
hearing).
Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999).
Here, the trial court found the certified documents from the Courts of
Common Pleas of Delaware and Dauphin Counties to be relevant, and, of
more importance, reliable sources to establish that persons were present at
the time Roselli committed the two prior burglaries. Despite his protestation
that the trial court should not have considered documents that contain
hearsay, Roselli has provided us with no authority to support his claim that
the trial court was precluded from considering hearsay statements. Roselli’s
Brief at 27, 29-30. To the contrary, our law provides that the trial court was
not bound by the rules of evidence, and therefore, the trial court was
permitted to consider any information it deemed relevant, including the
affidavits of probable cause submitted in connection with Roselli’s prior
convictions.
In his fifth issue, Roselli challenges the constitutionality of § 9714.
Roselli argues that § 9714 is unconstitutional because it “permits an
automatic increase of a defendant’s sentence beyond the statutory
maximum[] without … a jury finding beyond a reasonable doubt for its
application, in violation of … Alleyne v. United States, 133 S. Ct 2151
([U.S.] 2013).” Roselli’s Brief at 27. Roselli begins be recognizing that
pursuant to the United States’ Supreme Court’s decision in Alleyne, any fact
that could subject a defendant to the application of a mandatory minimum
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sentence must be found by a jury. Roselli notes that prior to the Alleyne
decision, an exception to this holding existed for prior convictions, as
provided in Almendarez–Torres v. United States, 532 U.S. 244 (1998),
but contends that the Alleyne decision has abrogated the exception created
in Almendarez-Torres. Roselli’s Brief at 28. We do not agree. In the
Alleyne decision, the Supreme Court excluded the Almendarez-Torres
exception from its holding. It stated, “In Almendarez–Torres [] we
recognized a narrow exception to this general rule for the fact of a prior
conviction. Because the parties do not contest that decision's vitality, we do
not revisit it for purposes of our decision today.” Alleyne, 133 S. Ct. at
2160 n.1 (citation omitted). Thus, contrary to Roselli’s claim, a plain
reading of the Alleyne decision defeats his argument.7
In his sixth issue, Roselli argues that the application of § 9714 in his
case is unconstitutional because the jury did not make the finding that he
has two prior convictions for crimes of violence. Roselli’s Brief at 29.
Having rejected his claim that the jury was required to make this finding,
this issue fails.
Finally, we reach Roselli’s last issue, in which he argues that the trial
court erred in denying his motion to dismiss the charges against him
because of a violation of Pa.R.Crim.P 600. Our standard of review for such
7
We note that this Court recognized the continued validity of the
Almendarez-Torres exception in Commonwealth v. Lane, 81 A.3d 974
n.5 (Pa. Super. 2013).
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claims is whether the trial court abused its discretion. Commonwealth v.
Baird, 919 A.2d 258, 260 (Pa. Super. 2007).
To determine whether dismissal is required under
Rule 600, a court must first calculate the mechanical
run date, which is 365 days after the complaint was
filed. Rule 600(C) addresses situations where time
can be excluded from the computation of the
deadline. Case law also provides that a court must
account for any ‘excludable time’ and ‘excusable
delay.’ Excludable time is delay that is attributable to
the defendant or his counsel. Excusable delay is
delay that occurs as a result of circumstances
beyond the Commonwealth’s control and despite its
due diligence. ... The only occasion requiring
dismissal is when the Commonwealth fails to
commence trial within 365 days of the filing of the
written complaint, taking into account all excludable
time and excusable delay.
Commonwealth v. Colon, 87 A.3d 352, 358 (Pa. Super. 2014) (internal
citations and quotations omitted).
In the present case, the trial court found that the criminal complaint
was filed on January 19, 2011 and trial commenced on April 11, 2012, and
concluded that trial commenced 448 days after the Commonwealth filed the
criminal complaint against Roselli. Trial Court Opinion, 6/10/14, at 15-16.
The trial court further found multiple periods of excusable and excludable
delay. Of significance to this appeal, it concluded that 137 days of delay
were attributable to Roselli’s request for a competency evaluation, and
therefore excludable. Id. at 16. Adding the 137 days to the mechanical run
date of January 19, 2012, the trial court calculated an adjusted run date of
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June 4, 2012. Id. at 16-17. As trial ultimately commenced on April 11,
2012, which was within the adjusted run date, the trial court concludes there
was no Rule 600 violation. Id. at 17.
The record reveals that the criminal complaint was filed on January 19,
2011, See Criminal Complaint, 1/19/11; N.T.; 3/26/12, at 41, making the
mechanical run date January 19, 2012. The case came up to be listed for
trial on June 7, 2011, at which time counsel for Roselli requested a
competency exam. N.T., 3/26/12, at 44-45. The case was relisted for trial
on September 20, 2011, although no competency exam had occurred. On
October 27, 2011, Roselli’s counsel renewed his request for a competency
exam, which finally occurred on November 18, 2012. Id. at 47. Following
the completion of the examination and the issuance of the resulting report
by the examining physician, the case was again placed on the trial list on
November 28, 2011. Id. at 48. The case was not reached during the
December, January, or February trial terms. Id. at 48-49. It was then
scheduled for trial on March 26-27, 2012. Id. at 49. On those days, the
trial court held hearings on Roselli’s Rule 600 and suppression motions. The
trial court denied both, and trial subsequently commenced on April 11, 2012.
“[F]or purposes of [Rule 600], … this Court has held that a criminal
defendant is unavailable for trial from the time he requests a continuance for
evaluation of his competency until he is adjudged competent to stand trial.”
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Commonwealth v. Miskovitch, 64 A.3d 672, 681 (Pa. Super. 2013).
Thus, Roselli was unavailable for trial from June 7, 2011, until he was
declared competent, which occurred at the earliest on November 18, 2011,
when his competency evaluation occurred. This is a period of 164 days.
Adding that to the mechanical run date of January 19, 2012, we arrive at an
adjusted run date of June 24, 2012. Roselli’s trial commenced on April 11,
2012, well within the permissible timeframe.
Roselli argues only that the “delay for a competency evaluation cannot
be considered excludable time” because “[Roselli] never signed any Rule 600
waivers” for that period of time, yet he does not cite any authority in
support of this statement. Roselli’s Brief at 32. As stated above, our law
provides that delay attributable to a defendant’ request for a competency
evaluation is excludable for Rule 600 purposes. We know of no requirement
that the defendant must sign a waiver agreeing to this characterization, and
Roselli has cited to none.
Having found some of the issue raised by Roselli waived and the
remaining issues meritless, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Bender, P.J.E. joins the Memorandum.
Strassburger, J. files a Concurring Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2015
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