J-S45011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PERON MCCLENNY :
:
Appellant : No. 2199 EDA 2016
Appeal from the PCRA Order July 7, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006924-2007
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 02, 2017
Appellant, Peron McClenny, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act.1 We affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them. We add Appellant timely filed a pro se PCRA petition on
September 21, 2012; the court appointed counsel, who filed an amended
petition on July 10, 2014. Following hearings, the PCRA court dismissed the
petition on July 7, 2016. Appellant timely appealed on July 13, 2016. The
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1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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court ordered Appellant, on September 14, 2016, to file a concise statement
of errors complained of on appeal per Pa.R.A.P. 1925(b). After the PCRA
court granted an extension, Appellant timely complied on October 19, 2016.
Appellant raises four issues for our review:
WHETHER THE PCRA COURT COMMITTED ERROR IN
FAILING TO RESENTENCE [APPELLANT] WHEN PURSUANT
TO 42 PA.C.S.A. § 9712 HE RECEIVED A MANDATORY 5 TO
10 YEAR SENTENCE ON KIDNAPPING (18 PA.C.S.A. §
2901(A)(3)) AND A 5 TO 10 YEAR SENTENCE ON ROBBERY
(18 PA.C.S.A. § 3701), ORDERED TO RUN CONSECUTIVE,
WHERE THE CHARGES AROSE OUT OF THE SAME
INCIDENT, AND WHERE THE SENTENCE IMPOSED
VIOLATED ALLEYNE[ V. UNITED STATES, ___ U.S. ___,
133 S.CT. 2151, 186 L.ED.2D 314 (2013)], PARTICULARLY
WHERE THE CLAIM WAS RAISED DURING A TIMELY FILED
PCRA PETITION…STILL UNDER REVIEW WHEN THE
DECISION IN ALLEYNE…WAS RENDERED?
WHETHER THE PCRA COURT ERRED IN FAILING TO GRANT
[APPELLANT] A NEW TRIAL, OR MINIMALLY AN
EVIDENTIARY HEARING, WHERE [APPELLANT]’S RIGHT TO
CONFRONTATION WAS VIOLATED WHEN TRIAL COUNSEL
INEFFECTIVELY STIPULATED TO DNA RESULTS WITHOUT
CONSULTING WITH [APPELLANT], AND WITHOUT FIRST
DETERMINING WHETHER DNA WAS ABSENT OR PRESENT
OF A SECOND MALE OR WHETHER THE DNA TEST
INCLUDED ANALYSIS OF [VICTIM]’S MOUTH SPECIFICALLY
WHERE [VICTIM] TESTIFIED SHE DID NOT HAVE ORAL
SEX WITH EITHER MALE AND THAT BOTH MALES RAPED
HER, AND WHERE ULTIMATELY DURING A POST-
SENTENCE MOTION THE DNA SPECIALIST DID NOT
APPEAR IN COURT, CLAIMED NO ADDITIONAL TEST
COULD BE PERFORMED, AND WHERE THE DEFENSE OF
CONSENSUAL CONTACT WOULD BE ENHANCED HAD
COMPLETE DNA TESTING BEEN PRESENTED AT TRIAL,
WHICH WOULD HAVE AFFECTED THE OUTCOME OF THE
TRIAL?
WHETHER THE PCRA COURT ERRED IN FAILING TO FIND
THAT [APPELLANT] DID NOT KNOWINGLY, VOLUNTARILY,
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AND INTELLIGENTLY WAIVE A JURY TRIAL WHERE AN
INADEQUATE COLLOQUY WAS CONDUCTED, AND WHERE
A JURY WAIVER FORM WAS NOT COMPLETED BY
[APPELLANT] AND REVIEWED BY THE COURT?
WHETHER THE PCRA COURT ABUSED ITS DISCRETION BY
INCORRECTLY CALCULATING THE TIME PURSUANT TO A
RULE 600 MOTION WHERE 702 DAYS PASSED PRIOR TO
TRIAL WITH 655 DAYS ATTRIBUTABLE TO THE
COMMONWEALTH, AND IN FAILING TO FIND THAT TRIAL
COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A
RULE 600 CHALLENGE PRIOR TO THE TRIAL IN THIS
MATTER, AND THAT APPELLATE COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO
RAISE THE CHALLENGE ON APPEAL, ALL IN VIOLATION OF
U.S. CONST. AMEND. V, VI, AND XIV, AND…PA. CONST.
ART. I, SEC. 9?
(Appellant’s Brief at 4-5).2
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,
593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a PCRA
hearing as a matter of right; the PCRA court can decline to hold a hearing if
there is no genuine issue concerning any material fact, the petitioner is not
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2
For purposes of disposition, we have reordered Appellant’s issues.
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entitled to PCRA relief, and no purpose would be served by any further
proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541
(1997). If the court conducts hearings, “as with any other credibility
determination, where the record supports the PCRA court’s credibility
determinations, those determinations are binding” on this Court.
Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert.
denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Under the
PCRA, “an issue is waived if the petitioner could have raised it but failed to
do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S.A. § 9544(b).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa.Super. 2004), appeal
denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of
ineffective assistance of counsel, a petitioner must show, by a
preponderance of the evidence, ineffective assistance of counsel, which, in
the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.
2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner
must demonstrate: “(1) the underlying claim is of arguable merit; (2)
…counsel had no reasonable strategic basis for his…action or inaction; and
(3) but for the errors and omissions of counsel, there is a reasonable
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probability that the outcome of the proceedings would have been different.”
Id. at 880. “The petitioner bears the burden of proving all three prongs of
the test.” Id. “If a petitioner fails to meet any elements of the
[ineffectiveness] test, his claim must fail.” Commonwealth v. Burkett, 5
A.3d 1260, 1272 (Pa.Super. 2010). See also Commonwealth v. Chmiel,
612 Pa. 333, 362, 30 A.3d 1111, 1128 (2011) (explaining boilerplate
allegations and bald assertions of no reasonable basis and/or ensuing
prejudice cannot satisfy petitioner’s burden of proving ineffectiveness).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Michael
Erdos, we conclude Appellant’s first and second issues merit no relief. The
PCRA court opinion comprehensively discusses and properly disposes of
Appellant’s first two issues. (See PCRA Court Opinion, filed December 13,
2016, at 4, 8-10) (finding: (1) Alleyne does not apply retroactively on
collateral review; although sentencing court inquired as to mandatory
sentences for Appellants convictions, court did not apply mandatory
minimum sentences; Appellant would have received same sentence
regardless of any mandatory minimum sentences; (2) DNA test results from
oral swab of Victim produced trace amount of sperm; number of sperm was
so small that DNA analysts could not generate DNA profile; miniscule
amount of sperm indicated sperm could have been present as result of
transfer or from different sexual encounter; Appellant failed to show
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reasonable probability that but for trial counsel’s stipulation to DNA test
results at trial, trial outcome would have differed; trial counsel’s actions did
not prejudice Appellant and did not amount to ineffectiveness). The record
supports the PCRA court’s rationale. Accordingly, as to Appellant’s first and
second issues, we affirm on the basis of the PCRA court opinion.
In his third issue, Appellant argues the trial court failed to ensure
Appellant knowingly, voluntarily, and intelligently waived his right to a jury
trial. Appellant asserts the record contains no written jury trial waiver form
and no reference to a written waiver form exists in the trial transcript.
Appellant also avers the oral waiver colloquy the court conducted was
insufficient. Appellant submits trial counsel also failed to ensure Appellant
knew his jury-trial rights. Appellant claims he would not have waived his
jury trial rights if he had known the differences between a jury trial and a
bench trial. Appellant claims trial counsel did not attempt to augment the
oral colloquy and did not object to the court’s oral colloquy. Appellant
contends trial counsel’s inaction amounts to an absence of counsel and a
violation of Appellant’s constitutional right to counsel at trial. Appellant
concludes this Court should vacate his convictions and dismiss the charges,
or alternatively, vacate and remand for a new trial. We disagree.
Both the federal and Pennsylvania Constitutions guarantee criminal
defendants the right to a jury trial. See U.S. Const. amend. VI; Pa. Const.
art. I, § 6. Pennsylvania Rule of Criminal Procedure 620 governs a
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defendant’s waiver of his right to a jury trial and provides:
Rule 620. Waiver of Jury Trial
In all cases, the defendant and the attorney for the
Commonwealth may waive a jury trial with approval by a
judge of the court in which the case is pending, and elect
to have the judge try the case without a jury. The judge
shall ascertain from the defendant whether this is a
knowing and intelligent waiver, and such colloquy shall
appear on the record. The waiver shall be in writing, made
a part of the record, and signed by the defendant, the
attorney for the Commonwealth, the judge, and the
defendant’s attorney as a witness.
Pa.R.Crim.P. 620. Notwithstanding the language of Rule 620, our Supreme
Court has explained the waiver colloquy is purely a procedural device; it
does not share the same status as the actual constitutional right to a jury
trial. Commonwealth v. Mallory, 596 Pa. 172, 189-90, 941 A.2d 686, 697
(2008), cert. denied, 555 U.S. 884, 129 S.Ct. 257, 172 L.Ed.2d 146 (2008)
(stating: “A waiver colloquy is a procedural device; it is not a constitutional
end or a constitutional right”). “The absence of an on-the-record colloquy
concerning the fundamentals of a trial by jury does not prove, in an absolute
sense, that a defendant failed to understand the right he waived by
proceeding non-jury.” Id. at 190, 941 A.2d at 697. Waivers can occur in
the absence of a colloquy by conduct, through implication, or from
circumstances showing the defendant knowingly and voluntarily relinquished
his right to a trial by jury. Id. at 189-90, 941 A.2d at 697. Thus, claims
raised on collateral review alleging counsel’s ineffectiveness in relation to a
jury-trial waiver do not directly call into question a defendant’s right to
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counsel or Rule 620. Id.
Instead, claims of this nature should be analyzed as in any other
ineffectiveness of counsel case. Commonwealth v. Spotz, 610 Pa. 17, 51,
18 A.3d 244, 263 (2011). That is, an inadequate or lacking waiver colloquy
is not alone conclusive proof that counsel was ineffective; instead, courts
must examine the totality of the relevant circumstances. Mallory, supra at
191, 941 A.2d at 698. These circumstances include “the defendant’s
knowledge of and experience with jury trials, his explicit written waiver (if
any), and the content of relevant off-the-record discussions counsel had with
his client.” Id. (emphasis added).
To succeed ultimately on a claim that counsel was ineffective for failing
to object to an inadequate oral waiver colloquy (which in turn led to the
entry of unknowing and involuntary jury trial waiver), the defendant must
plead and prove that counsel’s ineffectiveness caused the defendant to
waive his constitutional right to a jury trial and prejudiced the defendant.
Id. at 201, 941 A.2d at 704. Prejudice in this context means there is a
reasonable probability that, absent counsel’s ineffectiveness, the defendant
would not have waived his right to a jury trial. Id.
Instantly, in its opinion, the PCRA court addressed Appellant’s third
issue as follows:
[Appellant’s] claim that the trial court erred because
[A]ppellant did not knowingly, voluntarily, and intelligently
waive his right to a jury trial is waived for purposes of the
PCRA because he did not raise the claim either at trial or
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on direct appeal. 42 Pa.C.S.[A.] § 9544(b)…. …
On the other hand, Appellant has properly raised the issue
of ineffective assistance of counsel. …
* * *
… Prior to the Commonwealth calling the first witness, the
trial court asked:
THE COURT: Before we even get to that, sir, is it
your own personal choice to have a waiver trial
instead of a jury trial?
[APPELLANT]: Yes.
THE COURT: Okay. Nobody forced you to do that or
promised you or anything, did they?
[APPELLANT]: No.
THE COURT: So I’ll accept your comment that it’s
your own choice and you did it knowingly,
intelligently, and voluntarily. …
N.T. [Trial] 4/30/2009, at 6-7. This exchange, on its face,
fails to establish that Appellant understood the
fundamental elements of a jury trial.
However, this is not enough to establish that Appellant’s
constitutional right to a jury trial was violated. …
… Here, while Appellant is not a career criminal, prior to
being charged in the present case he exercised his right to
a jury trial after which he was found guilty of sexual
assault and served a state sentence. … As a
result…Appellant experienced firsthand the fundamental
essentials of a jury trial that he now denied having any
knowledge of, including choosing a jury from members of
the community, participating in the selection of the panel,
and having a unanimous jury verdict. While serving that
sentence in prison, Appellant got his G.E.D. and educated
himself. Appellant’s ability to get his G.E.D. and his well-
written pro se PCRA petition suggest that he is an
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intelligent and self-sufficient individual with an
understanding of the fundamentals of our criminal justice
system and the ability to conduct legal research. In his
PCRA petition, he states that prior to trial he asked his
attorney to petition the court for nominal bail so that he
could “aid [him]self with further investigation and legal
fees in order to prepare for a proper defense,” which
suggests he took an active role in the defense process.
Appellant asserts that his attorney advised him to waive
his right to a jury trial and that his attorney assured him
“that before officially waiving [his] right to a jury trial…the
court…will go over the essential ingredients, [his] rights,
and that [he] would…sign a waiver form after the court
explained it to [him] in detail.” Despite believing, after the
assurance from his attorney, that this conversation with
the [c]ourt would take place, Appellant elected to proceed
with a waiver trial even without signing a written colloquy
and in the absence of a detailed oral colloquy. Based on
his prior criminal justice system experience, his intellectual
ability, the brief colloquy in court, his conversation with his
attorney, and his desire to proceed without a jury even
though he realized that a thorough waiver colloquy was
lacking, Appellant’s jury trial waiver was knowing,
intelligent, and voluntar[y].¹
¹ In addition, even if his waiver was defective, in
order to be successful on a claim of ineffectiveness
assistance of counsel, Appellant must demonstrate a
reasonable probability that the result of the waiver
proceeding would have been different absent
counsel’s ineffectiveness; that is, but for counsel’s
ineffectiveness, Appellant would not have waived his
right to a jury [trial]. By Appellant’s own account,
his attorney counseled him to choose a bench trial
over a jury trial because the judge appeared to be a
more favorable forum based on the judge’s ruling on
a pretrial evidentiary matter. Appellant, who
entered this trial with a thorough understanding of a
jury trial from his first-hand experience, chose to
follows his attorney’s advice as part of a reasonable
legal strategy. While the [PCRA] [c]ourt
acknowledges that Appellant was not afforded a
PCRA evidentiary hearing on this issue, it seems
unlikely that he would have chosen a jury trial but
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for counsel’s ineffectiveness.
(PCRA Court Opinion, filed December 13, 2016, at 5-8 n.1) (some quotation
marks and internal citations omitted) (emphasis in original). We accept the
PCRA court’s analysis. We emphasize that the absence of a written waiver
colloquy does not render Appellant’s jury-trial waiver automatically invalid,
under the totality of the circumstances. See Mallory, supra; Turetsky,
supra. Accordingly, Appellant’s third issue merits no relief.
In his fourth issue, Appellant argues his speedy trial rights were
violated, when trial commenced over a year after his arrest. Appellant
contends the Commonwealth is responsible for more than 400 days of delay
prior to trial, yet trial counsel failed to file a Rule 600 motion. Appellant
asserts appellate counsel was similarly ineffective for failing to raise a Rule
600 claim on direct review. Appellant concludes this Court should vacate the
verdict and dismiss the charges against him. We disagree.
The previous version of Rule 600 provided, in pertinent part:3
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, shall commence no later
than 365 days from the date on which the complaint is
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3
The previous version of Rule 600 was in effect during Appellant’s pre-trial
proceedings and trial. The current version of Rule 600 became effective on
July 1, 2013.
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filed.
* * *
(B) 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.
(C) In determining the period for commencement of
trial, there shall be excluded therefrom:
* * *
(3) such period of delay at any stage of the
proceedings as results from:
(a) the unavailability of the defendant or the
defendant’s attorney;
(b) any continuance granted at the request of
the defendant or the defendant’s attorney.
* * *
Pa.R.Crim.P. 600 (prior version). “Rule 600 generally requires the
Commonwealth to bring a defendant…to trial within 365 days of the date the
complaint was filed.” Commonwealth v. Hunt, 858 A.2d 1234, 1240
(Pa.Super. 2004) (en banc), appeal denied, 583 Pa. 659, 875 A.2d 1073
(2005). To obtain relief, a defendant must have a valid Rule 600 claim at
the time he files his motion for relief. Id. at 1243.
“The mechanical run date is the date by which the trial must
commence under Rule 600.” Commonwealth v. McNear, 852 A.2d 401,
406 (Pa.Super. 2004).
It is calculated by adding 365 days (the time for
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commencing trial under Rule 600) to the date on which the
criminal complaint is filed. The mechanical run date can
be modified or extended by adding to the date any periods
of time in which delay is caused by the defendant. Once
the mechanical run date is modified accordingly, it then
becomes an adjusted run date.
Id.
In the context of Rule 600, “excludable time” is differentiated from
“excusable delay” as follows:
“Excludable time” is defined in Rule 600(C) as the period
of time between the filing of the written complaint and the
defendant’s arrest, provided that the defendant could not
be apprehended because his whereabouts were 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 defendant’s attorney; (b) any
continuance granted at the request of the defendant or the
defendant’s attorney. “Excusable delay” is not expressly
defined in Rule 600, but the legal construct takes into
account delays which occur as a result of circumstances
beyond the Commonwealth’s control and despite its due
diligence.
Hunt, supra at 1241 (internal citations and footnote omitted).
Instantly, Appellant’s final issue raises a Rule 600 claim. As
presented, Appellant’s Rule 600 claim is generally not cognizable under the
PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii) (explaining petitioner is
eligible for PCRA relief if he pleads and proves conviction or sentence
resulted from constitutional violation, ineffective assistance of counsel,
unlawfully induced guilty plea, improper obstruction of right to appeal,
existence of after-discovered exculpatory evidence, imposition of sentence
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greater than lawful maximum, or proceeding in tribunal without jurisdiction).
Therefore, to the extent Appellant’s fourth issue presents a bare Rule 600
claim on collateral review, it is not properly before us.
Raised under the rubric of ineffective assistance of appellate counsel
and trial counsel, however, Appellant’s Rule 600 claim is cognizable under
the PCRA. See id. Nevertheless, Appellant fails to address the reasonable
basis and prejudice prongs of the ineffectiveness test regarding both
appellate counsel’s and trial counsel’s stewardship. See Turetsky, supra.
Further, appellate counsel could not raise a Rule 600 claim on direct appeal,
because Appellant did not file a Rule 600 motion in the trial court. See
Pa.R.A.P. 302(a) (stating: “Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal”). Likewise, a claim of trial
counsel’s ineffectiveness for failure to raise a Rule 600 issue was unavailable
to appellate counsel, without satisfying other procedural requirements. See
Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002)
(providing ineffectiveness claims are generally reserved for collateral
review); Commonwealth v. Leverette, 911 A.2d 998, 1004 (Pa.Super.
2006) (explaining ineffectiveness claims may be raised on direct appeal only
if: (1) appellant raised claim(s) in post-sentence motion; (2) evidentiary
hearing was held on claim(s); and (3) record devoted to claim(s) has been
developed).
Moreover, even if Appellant’s Rule 600 claim were properly before us,
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Appellant would not be entitled to relief. The Commonwealth filed the
complaint against Appellant on May 24, 2007. Therefore, the initial Rule 600
mechanical run date was May 24, 2008. At the conclusion of Appellant’s
arraignment on July 25, 2007, the court scheduled a pretrial conference for
August 15, 2007. Appellant subsequently requested two continuances,
which the court granted. Ultimately, the court conducted the pretrial
conference on September 5, 2007, when Appellant requested a jury trial.
The delay between August 15, 2007, and September 5, 2007, constituted 21
days of excludable time. See Hunt, supra. The adjusted trial run date for
Rule 600 purposes became June 14, 2008.
The court continued Appellant’s case to September 19, 2007, for a
scheduling conference. As the Commonwealth had no control over the
court’s schedule, the delay between September 5, 2007, and September 19,
2007, arguably constituted 14 days of excusable delay. See id. The delay
yielded an adjusted trial run date of June 28, 2008. At the September 19,
2007 scheduling conference, based on Appellant’s request for a jury trial,
the court set trial for March 12, 2008, the earliest possible date. The delay
between September 19, 2007, and March 12, 2008, constituted 175 days of
excusable delay.4 See id. The adjusted trial run date for Rule 600 purposes
____________________________________________
4
Our Supreme Court in Commonwealth v. Mills, ___ Pa. ___, 162 A.3d
323 (2017) differentiated between the normal progression of a criminal case
and judicial delay for purposes of Rule 600. In Mills, the Commonwealth
(Footnote Continued Next Page)
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became December 20, 2008.
On January 31, 2008, Appellant requested additional time to respond
to a motion the Commonwealth had filed. The court granted Appellant’s
request and relisted trial for March 19, 2008. The delay constituted 7 days
of excludable time, and the adjusted trial run date for Rule 600 purposes
became December 27, 2008. See id. On March 19, 2008, the court
continued trial to March 20, 2008. This delay constituted 1 day of excusable
time, and the adjusted run date became December 28, 2008. See id. On
_______________________
(Footnote Continued)
requested a continuance of a previously set trial date, because the
Commonwealth would be unable to proceed to trial on that date for several
reasons. The trial court continued trial for 174 days to the earliest possible
date. In its analysis, the Mills Court said, “[T]ime attributable to the normal
progression of a case simply is not ‘delay’ for purposes of Rule 600.” Id. at
___, 162 A.3d at 325. The Court also noted, “[W]here a trial-ready
prosecutor must wait several months due to a court calendar, the time
should be treated as ‘delay’ for which the Commonwealth is not
accountable.” Id. Ultimately, the Court held the 174-day continuance was
delay attributable to the Commonwealth because the Commonwealth was
unprepared for trial. Id.
Unlike Mills, here neither party requested a continuance of a previously set
trial date, and trial readiness was not at issue on September 19, 2007.
Based on Appellant’s request for a jury trial, on September 19th, the court
scheduled Appellant’s jury trial for the earliest possible date of March 12,
2008. The substance and timing of Appellant’s jury trial request caused the
court to schedule trial as it did. Therefore, the 175 days between
September 19, 2007, and March 12, 2008, constituted excusable delay. See
Hunt, supra. Additionally, despite his jury trial request, Appellant
ultimately proceeded to a bench trial. Finally, even if the 175 days at issue
were deleted from the ultimate adjusted run date, any Rule 600 motion
would still have been premature. (February 7, 2010 – 175 days = August
16, 2009). Trial began on April 30, 2009, long before the adjusted run date
of February 7, 2010, or the earlier modified adjusted run date of August 16,
2009.
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March 20, 2008, the court was hearing another trial, and relisted Appellant’s
trial for October 27, 2008. The delay between March 20, 2008, and October
27, 2008, constituted 221 days of excusable delay. See id. The adjusted
trial run date became August 6, 2009. On October 27, 2008, the court was
on another trial and continued Appellant’s trial to April 28, 2009, the earliest
possible date. The delay constituted 183 days of excusable delay. See id.
The adjusted trial run date for purposes of Rule 600 became February 5,
2010. On April 28, 2009, the court continued trial to the earliest possible
date, April 29, 2009. This delay amounted to 1 day of excusable delay, and
the adjusted run date became February 6, 2010. See id. On April 29,
2009, the court again continued trial to the earliest possible date, April 30,
2009. This delay amounted to 1 day of excusable delay and yielded a Rule
600 adjusted run date of February 7, 2010. See id.
The following chart summarizes the delays prior to trial:
DATES ACTIVITY DAYS EXCLUDABLE ADJUSTED
DELAY OR EXCUSABLE RUN DATE
8/15/07- Appellant requested 21 Excludable; 6/14/08
9/5/07 continuances of pretrial Appellant
conference. requested
continuances
9/5/07- Appellant requested jury trial; 14 Arguably 6/28/08
9/19/07 court continued scheduling excusable;
conference. Appellant
requested jury
trial
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9/19/07- Court conducted scheduling 175 Excusable 12/20/08
3/12/08 conference; based on (See footnote
Appellant’s jury trial request, 4, supra)
court set jury trial for 3/12/08,
EPD.
3/12/08- Appellant requested additional 7 Excludable; 12/27/08
3/19/08 time to respond to Appellant
Commonwealth motion; court requested time
granted request and relisted to respond to
trial for 3/19/08. Commonwealth
motion
3/19/08- Court continued trial to 1 Excusable; 12/28/08
3/20/08 3/20/08, EPD. based on EPD
3/20/08- Court on another trial; court 221 Excusable; 8/6/09
10/27/08 relisted Appellant’s trial for court on
10/27/08. another trial
10/27/08- Court on another trial; court 183 Excusable; 2/5/10
4/28/09 relisted Appellant’s trial for court on
4/28/09, EPD. another trial;
based on EPD
4/28/09- Court continued trial to 1 Excusable; 2/6/10
4/29/09 4/29/09, EPD. based on EPD
4/29/09- Court continued trial to 1 Excusable; 2/7/10
4/30/09 4/30/09, EPD. based on EPD
Appellant’s trial commenced on April 30, 2009, long before the
adjusted run date of February 7, 2010. Therefore, Appellant did not have a
viable speedy trial claim before trial commenced, as any Rule 600 motion
would have been premature. See Hunt, supra. Thus, Appellant’s fourth
issue fails. Accordingly, we affirm.
Order affirmed.
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J-S45011-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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