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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERARD GETHERS :
:
Appellant : No. 465 EDA 2023
Appeal from the Judgment of Sentence Entered January 24, 2023
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007289-2019
BEFORE: LAZARUS, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED MARCH 14, 2024
Gerard Gethers (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of one count each of persons not
to possess firearms and firearms not to be carried without a license; and two
counts each of possession of a controlled substance and possession of drug
paraphernalia.1 Appellant challenges the trial court’s denial of his pretrial
motion to dismiss all charges pursuant to Pa.R.Crim.P. 600. After careful
review, we affirm.
The trial court summarized the relevant factual history:
On October 17, 2019, Corporal Matthew Stadulis of the
Whitemarsh Township Police Department answered a radio
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1); 35 P.S. §§ 780-113(a)(16),
(a)(32).
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dispatch initiated by a telephone call from a long-time resident in
a Lafayette Hill neighborhood reporting a black male and female
loitering in the area while using narcotics.
….
Without activating his patrol car’s lights or siren, Corporal
Stadulis drove from the station onto Crescent Avenue, turning
onto Ridge Pike and then again onto Pine Ridge Drive toward
Evergreen Lane. The Corporal could see two (2) individuals
matching the description provided by the 911 caller walking
toward him from Evergreen Lane[. Corporal Stadulis] pulled over
to the curbside of the road, stopped his vehicle and exited to have
a conversation with the male identified as [Appellant] and a
female companion. [Appellant] and the female stopped to speak
with the Corporal.
….
Corporal Stadulis opined that his observations of [Appellant]
were consistent with an individual who had smoked PCP. Even
though Corporal Stadulis had instructed [Appellant] to take his
hands out of his pockets on first approach, [Appellant] kept
putting his hands in his pockets while the Corporal was attempting
to identify both individuals. Corporal Stadulis determined that
[Appellant] was in violation of the public intoxication statute and
[Corporal Stadulis] wait[ed] for backup to arrive before placing
[Appellant] under arrest.
….
Corporal Stadulis placed [Appellant] under arrest for suspected
use of PCP and public drunkenness. During the search of
[Appellant] incident to arrest, Corporal Stadulis found vials of PCP
and a marijuana cigarette laced with PCP in [Appellant]’s pockets
and a revolver in his sock.
Trial Court Opinion, 7/12/23, at 2-4 (record citations and some paragraph
breaks omitted).
On October 17, 2019, Corporal Stadulis charged Appellant with the
above drug and firearm offenses. The Commonwealth indicated it was ready
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for trial in February 2020. Id. at 5. However, during the pendency of
Appellant’s case, our Supreme Court declared a statewide judicial emergency
in response to the Covid-19 pandemic. The trial court competently outlined
the Supreme Court’s declarations2 and Montgomery County’s response to the
statewide judicial emergency:
On March 12, 2020[,] and March 16, 2020, the Pennsylvania
Supreme Court issued its first orders regarding the Covid-19
global pandemic, declaring a general statewide judicial
emergency, and authorizing president judges in the
Commonwealth to suspend operation of the courts in their judicial
district to consider the appropriate measures to be taken to
safeguard the health and safety of court personnel, court users,
and members of the public. The Court also specifically authorized
the president judges to suspend the operation of Rule of Criminal
Procedure 600 within the judicial district. Noting that nothing in
the order shall affect a criminal defendant’s right to a speedy trial
under the United States and Pennsylvania Constitutions, the Court
advised that the circumstances giving rise to the order and the
suspension may be relevant to the constitutional analysis.
The Honorable Thomas M. DelRicci, P.J.[,] declared a judicial
emergency in the 38th Judicial District by order on March 12, 2020,
and issued another order on March 16, 2020, closing all court
facilities and suspending all court operations. President Judge
DelRicci’s order of March 16, 2020, declared that the operation of
Rule of Criminal Procedure 600 shall be suspended beginning
March 12, 2020.
By additional orders issued on March 31, 2020[,] April 1,
2020, and April 28, 2020, the Pennsylvania Supreme Court
extended the statewide judicial emergency, suspending Rule 600
in all judicial districts through at least June 1, 2020, and directing
the time excluded from the calculation under Rule 600(C).
____________________________________________
2 Covid-19-related court orders are available at:
https://www.pacourts.us/ujs-coronavirus-information.
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In his April 14, 2020[,] Declaration, President Judge DelRicci
included the following language: “Any postponement of criminal
case scheduling caused by the declaration of this judicial
emergency shall be considered a court postponement and shall
constitute excludable time for purposes of the application of Rule
of Criminal Procedure 600.”
On May 27, 2020, the Pennsylvania Supreme Court issued
an order ceasing the statewide judicial emergency after June 1,
2020, and allowing the [p]resident [j]udges of the individual
judicial districts to continue to exercise their emergency powers
until rescinded by each court.
President Judge DelRicci [indefinitely] extended the judicial
emergency in the 38th Judicial district by order entered on May 28,
2020. On June 3, 2020, President Judge DelRicci issued an order
declaring that any postponement of criminal case scheduling
caused by and through the expiration of the judicial emergency
shall be considered a court postponement constituting excludable
time for purposes of Rule 600.
….
The Pennsylvania Supreme Court issued a final order on
June 21, 2021, declaring that operation of the United Judicial
System in Pennsylvania return to pre-pandemic status effective
July 6, 2021, stating, however, that local judicial emergencies
could remain in effect until August 31, 2021.
President Judge DelRicci issued an order on August 30,
2021, declaring that the June 3, 2020[,] order regarding
application of Rule 600 was vacated as of August 31, 2021, but
that the emergency declaration extending the judicial emergency
would remain in effect until further order of the court. The court
has not issued a subsequent order and the judicial emergency is
still in effect [as of November 17, 2022].3
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3 By order of court, President Judge Carolyn Carluccio vacated the last order
extending Montgomery County’s declaration of a judicial emergency, and
noted the “[j]udicial [e]mergency has now ended[,]” effective May 11, 2023.
See Order, 5/10/23, available at
https://www.montgomerycountypa.gov/ArchiveCenter/ViewFile/Item/5753
(last viewed Feb. 9, 2024).
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The 38th Judicial District Court of Common Pleas began
conducting criminal jury trials in August of 2021, before Judge
Carpenter, limited to the most serious homicide cases.
Trial Court Opinion, 7/12/23, at 5-7 (footnote added).
On June 29, 2022, Appellant filed a motion to dismiss his case for
violation of Rule 600. He argued, inter alia, that President Judge DelRicci
exceeded his authority in suspending jury trials during periods in which “jury
trials could have been conducted in Montgomery County consistent with
prevailing health and safety norms.” Motion to Dismiss, 6/29/22, at ¶ 95.
According to Appellant, the Commonwealth failed to exercise due diligence in
bringing his case to trial. Id. ¶ 108. A hearing was scheduled for August 1,
2022, after which the trial court denied Appellant’s motion to dismiss. See,
Order, 11/17/22.
On January 24, 2023, Appellant waived his right to a trial by jury and
proceeded to a bench trial. See Trial Court Opinion, 7/12/23, at 10. The trial
court convicted Appellant of all counts and, on January 24, 2023, sentenced
him to an aggregate 10 to 20 years in prison, concurrent with a life sentence
imposed in a prior unrelated homicide case. Id. at 2. Appellant timely
appealed, and both the trial court and Appellant have complied with Pa.R.A.P.
1925.
Appellant raises the following issues:
I. Did the [trial] court err in finding, for the purposes of
Pa.R.Crim.P. 600, the delay in bringing [Appellant] to trial
was attributable to the 38th Judicial District Covid-19
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Judicial Emergency without first determining whether the
Commonwealth had exercised due diligence in bringing
[Appellant’s] case to trial?
II. Did the [trial] court err in determining that pursuant to the
38th Judicial District Covid-19 Emergency Orders, the
period between June 3, 2020[,] and August 31, 2021[,] was
automatically excludable under Pa.R.Crim.P. 600
irrespective of the Commonwealth’s due diligence?
III. Did the [trial] court err in denying [Appellant’s] Pa.R.Crim.P.
600 Motion where the Commonwealth was not duly diligent
in bringing [Appellant’s] case to trial in that it intentionally
gave priority to other cases post-dating the instant case?
Appellant’s Brief at 3.
“In general, a trial court’s denial of a Rule 600 motion is reviewed for
an abuse of discretion; however, it is subject to plenary review when the
dispositive question implicates legal issues.” Commonwealth v. Lear, 290
A.3d 709, 718 (Pa. Super. 2023) (citing Commonwealth v. Harth, 252 A.3d
600, 614 n.3 (Pa. 2021)). “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.” Commonwealth v. Brown, 281 A.3d 320,
325 (Pa. Super. 2022) (citation omitted).
Pertinently,
Harth and [Commonwealth v.] Carl[, 276 A.3d 743 (Pa.
Super. 2022)] frame the inquiry for the effect of emergency orders
on Rule 600. If an order unambiguously suspends Rule 600
without qualification, then the period of the suspension is added
to the run date without considering the Commonwealth’s
diligence. [See] Carl, 276 A.3d at 751. Alternatively, if an order
characterizes a delay as a court postponement, then that period
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is only excluded if the trial court determines after a hearing
that the Commonwealth exercised due diligence through
the life of the case.
Commonwealth v. Malone, 294 A.3d 1247, 1249 (Pa. Super. 2023)
(emphasis added) (quoting Lear, 290 A.3d at 719).
As this Court previously determined, the Montgomery County
emergency orders characterized case delays as court postponements; thus, a
due diligence analysis is required:
[T]he plain language of the orders reflects that Montgomery
County did not continue its unqualified suspension of Rule 600
beyond May 31, 2020. On May 5, 2020, Montgomery County
ordered that its previous orders would be rescinded effective May
31, 2020. There were no later orders suspending Rule 600.
Instead, Montgomery County opted to order[,] on June 3, 2020,
that any emergency-related delay “shall be considered a court
postponement and shall constitute excludable time” under Rule
600(C).
As in Carl, the plain meaning of the “court postponement”
provision was to establish a framework for applying Rule 600 to
any postponement caused by the local judicial emergency. Carl,
276 A.3d at 750. Unlike in Carl, however, the Montgomery
County orders did not separately provide that Rule 600 would be
suspended after May 31, 2020.
Here, the trial court found, in accordance with the plain
meaning of the Montgomery County emergency orders, that the
delay in bringing Lear’s cases to trial was a direct result of the
judicial emergency. For such judicial delay to be excluded from
the Rule 600(C) computation, the trial court must find that the
Commonwealth exercised due diligence. Harth, 252 A.3d at 618.
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Lear, 290 A.3d at 720.4
In reviewing Appellant’s claim, we are cognizant of the following:
By the terms of Rule 600, the Commonwealth must bring a
defendant to trial within 365 days from the date upon which a
written criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).
However, the Rule 600 run date may be adjusted pursuant to the
computational directives set forth in Subsection (C) of the Rule.
For purposes of the Rule 600 computation, “periods of delay at
any stage of the proceedings caused by the Commonwealth[,]
when the Commonwealth has failed to exercise due
diligence[,] shall be included in the computation of the time
within which trial must commence.” Id. 600(C)(1). “Any other
periods of delay,” including those caused by the defendant, “shall
be excluded from the computation.” Id. When considering a Rule
600 motion, the court must identify each period of delay and
attribute it to the responsible party, then adjust the 365-day tally
to arrive at the latest date upon which the Commonwealth may
try the defendant. Absent a demonstration of due diligence,
establishing that the Commonwealth has done “everything
reasonable within its power to guarantee that [the] trial
begins on time,” Commonwealth v. Matis, 551 Pa. 220, 710
A.2d 12, 17 (Pa. 1998), the Commonwealth’s failure to bring the
defendant to trial before the expiration of the Rule 600 time period
constitutes grounds for dismissal of the charges with prejudice.
See Pa.R.Crim.P. 600(D)(1).
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4 On October 3, 2023, our Supreme Court granted allowance of appeal
limited to the following issue:
Whether a court must assess the Commonwealth’s due diligence
during a worldwide pandemic for purposes of Rule 600 before it
excludes delay attributable to a local judicial emergency during
which the president judge cancelled and suspended all trials,
suspended Rule 600 and otherwise excluded judicial delay caused
by the judicial emergency, and implemented strict procedures to
protect the public?
Commonwealth v. Lear, 305 A.3d 541 (Pa. 2023) (per curiam).
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Commonwealth v. Barbour, 189 A.3d 944, 947 (Pa. 2018) (emphasis
added).
Mindful of our scope of review, we must preliminarily determine whether
Appellant has waived his issues on appeal for failing to supply this Court with
an adequate record. The record reflects that Appellant requested “the
transcript of all proceedings held in this matter[.]” Request for Transcripts,
2/17/23 (emphasis omitted).5 However, the certified record does not contain
a transcript of the August 1, 2022, Rule 600 hearing. Indeed, our review
discloses that no transcripts were lodged of record in the instant case. In view
of this deficit, the Commonwealth asks this Court to deem Appellant’s issues
waived, noting “[t]his Court’s review of the Rule 600 claim depends, in part,
on [the Rule 600 hearing] transcript.” Commonwealth’s Brief at 11. We
agree.
Our decisional law underscores an appellant’s responsibility to ensure
the record is complete for our review. Where there is no indication in the
record that a relevant document was inadvertently omitted, “it is not
incumbent upon this Court to expend time, effort and manpower scouting
around judicial chambers or the various prothonotaries’ offices of the courts
of common pleas for the purpose of unearthing transcripts[.]”
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5 The record does not disclose whether Appellant complied with Montgomery
County Rule of Judicial Administration 4009(F)(1), which requires that “[a]ll
requests for transcripts shall be set forth on the standardized form available
at www.montcopa.org/court.”
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Commonwealth v. Preston, 904 A.2d 1, 7-8 (Pa. Super. 2006) (en banc)
(citation omitted). However, if there is evidence of the existence of such
necessary documents, “we might well make an informal inquiry to see if there
was an error in transmitting the certified record to this Court.” Id. at 8.
We might also formally remand the matter to the trial court to
ascertain whether notes of testimony or other documentation can
be located and transmitted. [Commonwealth v. O’Black, 897
A.2d 1234, 1238 (Pa. Super. 2006).] If a remand is necessary, it
is appropriate to direct the trial court to determine why the
necessary documentation was omitted from the certified record.
[Commonwealth v. ]Williams, 715 A.2d [1101, ]1107 [(Pa.
1998)]. An appellant should not be denied appellate review if the
failure to transmit the entire record was caused by an
“extraordinary breakdown in the judicial process.” Id. at
1106. However, if the appellant caused a delay or other problems
in transmitting the certified record, then he or she is not entitled
to relief and the judgment of the court below should be affirmed.
Id. See Commonwealth v. Barge, 560 Pa. 179, 743 A.2d 429,
429–30 (1999) (holding that if documents are missing from the
certified record because of a default by court personnel, an
appellant is entitled to have his claims resolved on the merits, but
if the absence of the evidence is attributable to the appellant’s
failure to comply with the relevant procedural rules, the claims will
be deemed to have been waived).
Id. (emphasis added).
Here, Appellant requested transcripts and the trial court and Appellant
cited to notes of testimony6 from an August 1, 2022, hearing. Our
Prothonotary made an informal inquiry with the trial court to ascertain the
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6 The scant references to the record of the August 1, 2022, hearing do not
supply this Court with sufficient information to undertake a merits analysis as
to whether the Commonwealth acted with due diligence in bringing Appellant’s
case to trial.
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whereabouts of the transcript. The trial court located only the January 24,
2023, nonjury trial transcript. Thus, the certified record includes no transcript
from the Rule 600 hearing.
Appellant acknowledges our scope of review “is limited to the findings
of the trial court and the evidence on the record of the Rule 600
hearing[.]” Appellant’s Brief at 4 (emphasis added) (quoting
Commonwealth v. Meadius, 870 A.2d 802, 805 (Pa. 2005)). “Whether a
default with regard to the contents of the certified record warrants a finding
of waiver is a question that must be evaluated under the particular facts and
circumstances of a specific appeal.” Commonwealth v. Bongiorno, 905
A.2d 998, 1001 (Pa. Super. 2006) (en banc).
Our appellate rules provide a remedy for missing transcripts:
[I]f a transcript is unavailable, the appellant may prepare a
statement of the evidence or proceedings from the best available
means, including his recollection. The statement shall be served
on the appellee, who may serve objections or propose
amendments thereto within ten days after service. Thereupon the
statement and any objections or proposed amendments shall be
submitted to the lower court for settlement and approval and as
settled and approved shall be included by the clerk of the lower
court in the record on appeal.
Pa.R.A.P. 1923.
Here, Appellant did not avail himself of the remedy provided by Rule
1923. Although the Commonwealth confirmed the absence of the necessary
transcript, Appellant filed no reply brief addressing this matter. See O’Black,
897 A.2d at 1238 (deeming issues waived where a transcript was not docketed
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and the defendant “did not file a reply brief or take any steps to ascertain if
the transcript could be included in the record”).
Our review is hampered by the absence of the Rule 600 hearing
transcript. Appellant was aware of the significance of this transcript, but took
no action to ensure it was transmitted with the certified record or avail himself
of the remedy provided by Rule 1923. Accordingly, we deem his issues
waived.7 See Commonwealth v. Harlan, 208 A.3d 497, 501 (Pa. Super.
2019) (“Our law is unequivocal that the responsibility rests upon the appellant
to ensure that the record certified on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.” (quoting Preston, 904 A.2d at 7)); see also Commonwealth v.
McCready, 295 A.3d 292, 296 n.6 (Pa. Super. 2023) (“When notes of
testimony are cited by the parties, we have reason to believe that these
records exist. However, the responsibility rests on the appellant to
ensure that the record certified on appeal is complete.” (internal
citations and quotation marks omitted; emphasis added)).
Judgment of sentence affirmed.
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7 We note that Appellant is not precluded from addressing appellate counsel’s
failure to supply an adequate record in a timely Post Conviction Relief Act
Petition, 42 Pa.C.S.A. §§ 9541-9546.
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Date: 3/14/2024
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