J-S52038-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM ALEXANDER HIMCHAK, III :
:
Appellant : No. 149 MDA 2018
Appeal from the Judgment of Sentence December 20, 2017
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000095-2015
BEFORE: BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 29, 2018
William Alexander Himchak, III (Appellant) appeals from the December
20, 2017 judgment of sentence following a jury trial. We affirm.
We begin with a brief procedural history. On December 10, 2014,
Appellant was charged with two counts of intercepting communications and
two counts of disclosing intercepted communications.1 Following several
appointments of counsel, petitions to withdraw as counsel, and appointments
of new counsel; several continuances; a mental health evaluation followed by
a finding of incompetency and court-ordered treatment to restore
competency; a waiver of counsel; numerous pro se filings; appointment of
new counsel upon request; a bail revocation hearing; more continuances; a
____________________________________________
1 The underlying facts are not germane to this appeal.
*Retired Senior Judge assigned to the Superior Court.
J-S52038-18
petition for a writ of habeas corpus with accompanying hearing; a second
waiver of counsel and more pro se filings, Appellant appeared pro se for a jury
trial on November 21, 2017. See Trial Court Opinion, 3/13/2018, at 1-6
(explaining in detail this tortured procedural history). The jury found
Appellant guilty of all charges, and on December 20, 2017, the trial court
sentenced Appellant to an aggregate term of 210 days to 36 months of
incarceration. That same day, the trial court granted Appellant’s oral motion
for the appointment of counsel, and this timely-filed appeal followed.2
On appeal, Appellant presents a single claim for our review.
Whether the trial court erred in denying without a hearing
Appellant’s oral motion to dismiss charges that were brought to
trial in excess of the time limitations contained within Pa.R.Crim.P.
600, thereby violating his constitutional right to a speedy trial
under both the United States and Pennsylvania [constitutions]?
Appellant’s Brief at 7 (unnecessary capitalization and footnote omitted).3
We begin with our standard of review.
In evaluating Rule 600 issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if 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.
____________________________________________
2 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
3 In lieu of a brief, the Commonwealth filed a letter stating that it was in
agreement with the analysis in the trial court’s Pa.R.A.P. 1925(a) opinion.
Letter, 8/6/2018.
-2-
J-S52038-18
The proper scope of review ... is limited to the evidence on the
record of the Rule 600 evidentiary hearing, and the findings of the
trial court. An appellate court must view the facts in the light most
favorable to the prevailing party.
Additionally, when considering the trial court’s ruling, this Court is
not permitted to ignore the dual purpose behind Rule 600. Rule
600 serves two equally important functions: (1) the protection of
the accused’s speedy trial rights, and (2) the protection of society.
In determining whether an accused’s right to a speedy trial has
been violated, consideration must be given to society’s right to
effective prosecution of criminal cases, both to restrain those
guilty of crime and to deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed to insulate
the criminally accused from good faith prosecution delayed
through no fault of the Commonwealth.
Commonwealth v. Watson, 140 A.3d 696, 697-98 (Pa. Super. 2016)
(quoting Commonwealth v. Peterson, 19 A.3d 1131, 1134–35 (Pa. Super.
2011)).
The text of Rule 600 is as follows, in pertinent part.
(A) Commencement of Trial; Time for Trial
(1) 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.
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint
is filed against the defendant shall commence within
365 days from the date on which the complaint is filed.
***
(D) Remedies
(1) When a defendant has not been brought to trial within
the time periods set forth in paragraph (A), at any time
before trial, 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
-3-
J-S52038-18
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.
Before we consider the merits of Appellant’s claim, we must determine
first whether he has preserved it for our review. “[A] motion to dismiss
pursuant to Pa.R.Crim.P. 600 must be made in writing, and a copy of such
motion must be served on the Commonwealth’s attorney.” Commonwealth
v. Barbour, 189 A.3d 944, 957 (Pa. 2018), quoting Commonwealth v.
Brock, 61 A.3d 1015, 1020 (Pa. 2013).4
The trial court explained that “[d]espite there not being a properly filed
and served motion addressing Rule 600 concerns[, it] did undertake a review
of the record and issued an order [on November 9, 2017, regarding Rule
600.]” N.T. 11/13/2017, at 3. Specifically, in that order, the court stated that
“given [Appellant’s] consistent oral assertions[5] in [the trial court,] despite his
____________________________________________
4 In Brock, our Supreme Court noted that “[a]lthough the language of Rule
1100, now Rule 600, has been amended several times, under both versions
of the rule, the relevant language is substantially the same, and a defendant
is required to serve a copy of the motion to dismiss upon the attorney for the
Commonwealth.” 61 A.3d at 1019. Brock was decided under an earlier
version of Rule 600. However, the same language appears in the current
version of Rule 600 that is applicable here. See Pa.R.Crim.P. 600(D)(1).
5 Our review of the transcripts included in the certified record has not revealed
to what oral motions the trial court is referring in its November 9, 2017 order.
However, any oral motion to dismiss would likewise fail to comply with Rule
600’s requirement that a motion be made in writing and served on the
Commonwealth, as discussed infra.
-4-
J-S52038-18
failure to properly raise the issue of whether he is entitled to relief under
Pa.R.Crim.P. 600,” the trial court “will take no action on the [] issue raised by
[Appellant] pertaining to Pa.R.Crim.P. 600, as the dates considered in the
computation are in compliance with Pa.R.Crim.P. 600.” Order of Court,
11/9/2017, at 1, 4.6 In other words, the trial court entered an order stating
that it would take no action on Appellant’s oral motions to dismiss, which did
not comply with Rule 600, while also noting what date ranges the court
considered as excludable time, thus satisfying itself that no Rule 600 violation
had occurred.
Our review of the record reveals that Appellant attempted to file what
purported to be a Rule 600 motion while he was proceeding pro se the second
time. See Pro Se Filing “Injunctive Relief,” 10/16/2017, at ¶¶ 3-4. See also
Pro Se Filing, 11/9/2017, at 1 (unnumbered) (referencing his Rule 600 motion
dated October 12, 2017). “Under Pennsylvania law, pro se defendants are
subject to the same rules of procedure as are represented defendants.”
Commonwealth v. Blakeny, 108 A.3d 739, 766 (Pa. 2014). As with many
____________________________________________
6In its Rule 1925(a) opinion, the trial court states that its November 9, 2017
order “was erroneously entered under a separate docket relating to
[Appellant] … However, [Appellant] was served with the [o]rder, and
acknowledged the [trial court’s] action on the record at the time of jury
selection.” Trial Court Opinion, 3/13/2018, at 9 n.4, citing N.T., 11/13/2017,
at 3-11. Upon review of the record, we find this error to be harmless as
Appellant acknowledged receipt of the November 9, 2017 order at jury
selection and in a pro se filing purporting to appeal from that order, and it is
part of the certified record on appeal.
-5-
J-S52038-18
of his pro se motions,7 Appellant failed to serve the October 2017 Rule 600
motion on the Commonwealth as required by Pa.R.Crim.P. 600(D)(1), and
failed to include a certificate of service as required by Pa.R.Crim.P. 576(B).
See Pro Se Filing, 10/16/2017. See also N.T., 11/6/2017, at 3 (verifying that
the Commonwealth had not received a Rule 600 motion from Appellant).8
In his brief, Appellant acknowledges that he failed to file a written
motion to dismiss in compliance with Pa.R.Crim.P. 600. Appellant’s Brief at
15. Moreover, he concedes that “[h]ad the court done nothing in response to
Appellant’s oral claims of a violation of his speedy trial rights, the position that
Appellant did not properly file nor serve his motion to dismiss would have
some merit.” Id. However, Appellant argues that notwithstanding this failing,
“the trial court took upon itself to address the Rule 600 issue through an
[o]rder … and in doing so, failed to comply with the hearing requirement of
the rule on which its decision was predicated.” Id. We disagree.
____________________________________________
7 Appellant’s pro se filings consistently failed to comply with Pa.R.Crim.P. 575
(stating the requirements for motions and answers), resulting in the trial court
issuing orders notifying Appellant of such and stating that it would take no
action. See, e.g., Order of Court 8/8/2016 (failing to comply with
Pa.R.Crim.P. 575); Order of Court 8/18/2016 (filing combined documents
referencing his state civil actions, state criminal actions, federal actions);
Order of Court 8/22/2016 (failing to comply with Pa.R.Crim.P. 575).
8 Only an excerpt of this pre-trial conference transcript was made part of the
certified record on appeal. However, its incompleteness does not impede our
review.
-6-
J-S52038-18
Upon review, we conclude that Appellant never invoked the requirement
of a hearing because he failed to file a written motion in compliance with
Pa.R.Crim.P. 600(D)(1). Because no such motion was filed, the trial court
appropriately took no action. The trial court’s inclusion of its excludable time
computations in its November 9, 2017 order may have confused Appellant
into believing that a Rule 600 motion had been denied without a hearing.
However, the trial court’s order clearly decreed that it was taking no action
because Appellant had failed to file a proper Rule 600 motion. By including
the time calculation, the court simply noted its understanding that no blatant
Rule 600 violation had occurred.
Accordingly, we find that because Appellant did not file a written motion
in compliance with Pa.R.Crim.P. 600(D)(1), he has failed to preserve this issue
for our review.9 See Brock, 61 A.3d at 1020 (reiterating that to preserve a
Rule 600 claim, “a motion to dismiss pursuant to Pa.R.Crim.P. 600 must be
____________________________________________
9 We note that Appellant makes fleeting references to the United States and
Pennsylvania constitutions in his Statement of Questions Involved, Appellant’s
Brief at 7; Concise Statement of Matters Complained of on Appeal, Concise
Statement of Matters Complained of on Appeal, 2/8/2018, at ¶1; and his
improperly filed Rule 600 motion, Pro Se Filing, 10/16/2017.
“The constitutional provisions themselves continue to provide a separate and
broader basis for asserting a claim of undue delay in appropriate cases.”
Commonwealth v. Preston, 904 A.2d 1, 10 (Pa. Super. 2006). However,
Appellant does not develop a constitutional claim in the argument section of
his brief “in any meaningful fashion capable of review.” Commonwealth v.
Walter, 966 A.2d 560, 566 (Pa. 2009). Accordingly, any constitutional
speedy trial claim is waived.
-7-
J-S52038-18
made in writing, and a copy of such motion must be served on the
Commonwealth’s attorney”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2018
-8-