J. A30033/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT DAVID REINHART, : No. 498 WDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, March 9, 2017,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0000724-2016
BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 21, 2018
Robert David Reinhart appeals from the March 9, 2017 judgment of
sentence entered by the Court of Common Pleas of Allegheny County. After
careful review, we remand to the trial court for a hearing pursuant to
Pa.R.Crim.P. 600.
The Commonwealth charged appellant with the following offenses: DUI
highest rate of alcohol, DUI general impairment, habitual offenders, driving
while BAC 0.02 or greater while license is suspended, driving without a license,
operating a snowmobile/ATV on streets and highways, unlawful operation,
unlawful operation of snowmobile/ATV under influence, proof of liability
insurance required to be produced and displayed, driving an unregistered
vehicle, improper display of registration plate, failure to signal, giving false
information, investigation by officer/duty of operator, fleeing or attempting to
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elude a police officer, and failure to yield to emergency vehicle.1 At the
preliminary hearing on January 26, 2016, the following charges were
dismissed: driving an unregistered vehicle, failure to signal, failure to yield to
emergency vehicle, fleeing or attempting to elude a police officer, giving false
information, improper display of registration plate, and investigation by
officer/duty of operator. All of the remaining charges were held over for trial.
On April 5, 2016, appellant filed an omnibus pretrial motion in which he
sought to suppress evidence. A suppression hearing and trial were originally
scheduled for June 7, 2016. On May 17, 2016, the Commonwealth filed a
motion for continuance, which the trial court granted. The suppression
hearing and trial were rescheduled for September 8, 2016.
On September 8, 2016, the trial court denied appellant’s omnibus
pretrial motion following a suppression hearing, and immediately called the
case for trial. The Commonwealth, having dismissed its only witness,
Elizabeth Police Department Officer Garret Kimmel, at the conclusion of his
suppression hearing testimony, orally moved for a continuance, which the trial
court granted. The trial was rescheduled for December 12, 2016. On
November 10, 2016, appellant filed a motion to dismiss pursuant to
Pa.R.Crim.P. 600, which the trial court denied on December 12, 2016,
following a hearing immediately preceding trial.
1 75 Pa.C.S.A. §§ 3802(c), 3802(a)(1), 6503.1, 1543(b)(1.1)(i), 1501(a),
7721(a), 7711.1(a), 7726(a)(3), 7730(b), 1301(a), 1332(a), 3335(a), 3748,
6308(a), 3733(a), and 3325(a), respectively.
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At the conclusion of the bench trial on December 12, 2016, the trial
court convicted appellant of DUI highest rate, DUI general impairment, driving
while BAC 0.02 or greater while license is suspended, driving without a license,
operating a snowmobile/ATV on streets and highways, unlawful operation of
unregistered snowmobile/ATV, and unlawful operation of snowmobile/ATV
under influence. The trial court acquitted appellant of proof of insurance
required to be produced and displayed. The Commonwealth withdrew the
habitual offenders charge. On March 9, 2017, the trial court sentenced
appellant to one year less one day to two years less two days’ imprisonment.
Appellant filed a notice of appeal to this court on March 30, 2017. The
trial court ordered appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) and appellant complied. The trial
court filed its opinion pursuant to Pa.R.A.P. 1925(a) on August 3, 2017.
Appellant raises the following issues for our review:
I. Did the lower court err in refusing to grant
[appellant’s] Rule 600 motion when all of the
delay in this case was attributable to the
Commonwealth and trial was not commenced
until 62 days beyond the mechanical run date?
II. Did the lower court err in refusing to suppress
all evidence, including the identification of
[appellant] and blood evidence, following
Officer Kimmel’s illegal search of the curtilage at
914 15th Street, Elizabeth, Pennsylvania?
Appellant’s brief at 5 (capitalization omitted).
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In his first issue for our review, appellant avers that the Commonwealth
violated his constitutional right to a speedy trial pursuant to Pennsylvania Rule
of Criminal Procedure 600.
“In evaluating Rule [600] issues, our standard of
review of a trial court’s decision is whether the trial
court abused its discretion.” Commonwealth v. Hill,
736 A.2d 578, 581 (Pa. 1999). See also
Commonwealth v. McNear, 852 A.2d 401
(Pa.Super. 2004). “Judicial discretion requires action
in conformity with law, upon facts and circumstances
judicially before the court, after hearing and due
consideration.” Commonwealth v. Krick, 67 A.2d
746, 749 (Pa.Super. 1949). “An abuse of discretion
is not merely an error of judgment, but if 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.”
Commonwealth v. Jones, 826 A.2d 900, 907
(Pa.Super. 2003) (en banc) (citing Commonwealth
v. Spiewak, 617 A.2d 696, 699 n.4 (Pa. 1992)).
“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.” Hill,
supra at 581; McNear, supra at 404. See also
Commonwealth v. Jackson, 765 A.2d 389
(Pa.Super. 2000), appeal denied, 793 A.2d 905 (Pa.
2002). “[A]n appellate court must view the facts in
the light most favorable to the prevailing party.” Id.
at 392.
....
In assessing a Rule 600 claim, the court must exclude
from the time for commencement of trial any periods
during which the defendant was unavailable, including
any continuances the defendant requested and any
periods for which he expressly waived his rights under
Rule 600. Pa.R.Crim.P. 600(C). “A defendant has no
duty to object when his trial is scheduled beyond the
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Rule [600] time period so long as he does not indicate
that he approves of or accepts the delay.”
Commonwealth v. Taylor, 598 A.2d 1000, 1003
(Pa.Super. 1991), appeal denied, 613 A.2d 559 (Pa.
1992) (addressing Municipal Court’s counterpart to
speedy trial rule).
Commonwealth v. Hunt, 858 A.2d 1234, 1238-1239, 1241 (Pa.Super.
2004), appeal denied, 875 A.2d 1073 (Pa. 2005).
In the instant appeal, the Elizabeth Borough Police Department filed a
criminal complaint against appellant on October 11, 2015. Pursuant to
Rule 600, the Commonwealth was required to commence trial on or before
October 11, 2016. The Commonwealth originally listed this case for trial on
June 7, 2016. On May 17, 2016, the Commonwealth requested a continuance
due to the unavailability of Officer Kimmel. The trial court granted the
Commonwealth’s request, rescheduling the trial for September 8, 2016;
however, it failed to indicate in its order whether the period of delay was
included or excluded for the purpose of Rule 600 calculations as required by
Rule 600(C)(3)(a)(2).
As noted above, the trial court called the case to trial on September 8,
2016, immediately upon the conclusion of the suppression hearing. The
Commonwealth, having dismissed Officer Kimmel at the conclusion of his
suppression hearing testimony, indicated it would not be able to proceed that
day with trial, and the trial court responded by stating, “Pick a date, whatever
you want.” (Notes of testimony, 9/8/16 at 67.) If appellant did not expressly
waive his speedy trial rights, then the continuance is charged to the
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Commonwealth. Trial was rescheduled for December 12, 2016. On
November 10, 2016, appellant filed a motion to dismiss pursuant to
Pa.R.Crim.P. 600, which the trial court denied on December 12, 2016,
following a purported hearing immediately preceding trial.
Regrettably, this court is unable to review appellant’s Rule 600 issue
due to a total lack of any evidence of record from the hearing on the motion
to dismiss. Although the Commonwealth filed a brief in response to the motion
setting forth its due diligence, no testimony is of record on the issue of
diligence. It is the Commonwealth’s burden to establish due diligence in
bringing appellant to trial within the required time pursuant to Rule 600. See
Commonwealth v. Jackson, 852 A.2d 315, 318 (Pa.Super. 2004), appeal
denied, 877 A.2d 460 (Pa. 2005).
Additionally, although the trial court’s scheduling clerk made extensive
representations to the court about scheduling difficulties with this case, there
is absolutely no record testimony on this issue. A defendant’s request for a
jury trial does not excuse the Commonwealth’s duty to bring the defendant to
trial within the Rule 600 time period. The trial court had no evidentiary basis
for denying the motion to dismiss. In its Rule 1925(a) opinion, the trial court
stated that there were no facts which needed to be decided. (Trial court
opinion, 8/3/17 at 8.) The trial court further stated that “hearings are held
when there are facts to be decided,” and that a “hearing—as contemplated by
the rule—was not held.” (Id.)
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Rule 600 states, in relevant part:
When a defendant has not been brought to trial within
the time periods set forth in paragraph (A), at any
time before trial, the defendant’s attorney, or the
defendant if unrepresented, 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.
Pa.R.Crim.P. 600(D)(1).
Rather than conduct such a hearing, the court accused defense counsel
of gamesmanship, not wanting to “play fair,” and trying to gain unfair
advantage. Clearly, appellant was brought to trial beyond the mechanical run
date, and this court has no evidence as to why.
We will therefore retain jurisdiction and remand to the trial court to
conduct a proper Rule 600 hearing and provide findings to this court within
60 days of the filing of this memorandum.
Case remanded. Jurisdiction retained.
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