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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM DRUMMOND :
:
Appellant : No. 1998 EDA 2015
Appeal from the Judgment of Sentence June 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004390-2013
BEFORE: OTT, SOLANO, and JENKINS, JJ.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 24, 2017
William Drummond appeals from the judgment of sentence imposed
on June 9, 2015, in the Court of Common Pleas of Philadelphia County
following his conviction by a jury on charges of burglary, criminal trespass,
possessing an instrument of crime, and terroristic threats.1 Drummond
received an aggregate sentence of ten to 26 years’ incarceration. In this
timely appeal, Drummond raises two issues; he claims the trial court (1)
erred in failing to grant his motion to dismiss pursuant to Pa.R.Crim.P. 600
(regarding speedy trials), and (2) abused its discretion in imposing a
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1
18 Pa.C.S. §§ 3502(c)(1), 3503(a)(1)(ii), 907(a) and 2706(a)(1),
respectively.
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manifestly excessive sentence. After a thorough review of the submissions
by the parties, relevant law, and the certified record, we affirm.
The underlying facts of this matter, as recited by the trial court in its
Pa.R.A.P. 1925(a) opinion are as follows:
In the early morning of December 12, 2012, Alexander Velez
was asleep on the couch in his home at 2153 East Stella Street
in Philadelphia. Also in the home with Mr. Velez were his
brother, John Settle, and a friend of John’s named Joe. Around
1:35 a.m., Mr. Velez was woken up by a loud banging sound and
discovered that the front door, which was dead-bolted and bar-
locked, had been kicked in. Standing in the door-way was
[Drummond]. Mr. Velez stood up and addressed [Drummond],
asking “What are you doing? What is going on here?” At that
point, Mr. Velez noticed Lou Mostak standing behind
[Drummond] in the doorway. Mr. Velez had known Lou Mostak
from the neighborhood as children and was reintroduced to him
about two years prior to this incident by a mutual friend, Tracey.
On the night in question, Mr. Velez had not invited [Drummond]
or Lou Mostak to come to his home.
While Mr. Velez took his attention away from [Drummond] to
address Lou Mostak, [Drummond] put a knife to Mr. Velez’s
throat. Mr. Mostak stated, “I want Flacco. I want the watch.”
Mr. Velez knew who Flacco was, but did not associate with him
and did not have a watch belonging to Mr. Mostak. [Drummond]
was holding the knife across Mr. Velez’s neck with his right hand.
The knife was about 16-17 inches in length. Mr. Velez was
yelling to Mr. Mostak, “Call your man off” to which Mr. Mostak
responded[,] “I will call him off when you find the watch.”
While [Drummond] held the knife to Mr. Velez’s throat, Mr. Velez
held the blade with his left hand to keep the knife from digging
into his neck and received a deep laceration on his left pinky
finger. At this point a neighbor, believed to be named Will,
happened to walk by and see the door wide open. While the
neighbor distracted [Drummond] and Mr. Mostak, Mr. Velez
pushed [Drummond’s] right wrist away from him and was able
to escape the house. Mr. Velez ran out of his house about a
block and a half to the home of another neighbor named Pam
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and stayed there about five minutes. As Mr. Velez was running
out of his house, [Drummond] and Mr. Mostak followed him. Mr.
Velez ran past a vehicle belonging to Mr. Mostak. While running,
Mr. Velez heard Mr. Mostak yell out “stop or I will shoot you.”
Mr. Velez turned around and saw Mr. Mostak holding a gun. Mr.
Mostak fired one shot, which did not hit Mr. Velez.
While at his neighbor Pam’s house, Mr. Velez [] called the police.
After leaving Pam’s home, Mr. Velez returned home and Officer
Kober was at his home. Mr. Velez was then taken to the police
station where he spoke with Detective Aitken. Upon receipt of a
search warrant of a home at 2311 Arthur Street, where Louis
Mostak was living, police went to the property and found Mr.
Mostak and [Drummond]. Both men were taken into custody.
Based on the description given by Mr. Velez of the vehicle driven
by Mr. Mostak and [Drummond], Detective Aitken obtained a
warrant for the vehicle parked outside of 2311 Arthur Street.
Upon searching the vehicle, Detective Aitken discovered a Bowie
knife, hospital paperwork in the name of Louis Mostak, a check
bearing the name Dream Machine Works Company, and a AAA
card in the name of Louis Mostak, Detective Aitken noticed three
small dots that he believed to be blood on the Bowie knife.
Detective Aitken swabbed the Bowie knife and had another
detective obtain a DNA sample from Mr. Velez. Miss Ja’neisha
Hutley, a Forensic Scientist for the City of Philadelphia, testified
that to a reasonable degree of scientific certainty, the three
brown spots on the Bowie knife were blood. Another Forensic
Scientist, Lynn Haimowitz, testified that the dots on the knife
were positive for DNA and that the DNA was, to a reasonable
degree of scientific certainty, a match to Mr. Velez.
Trial Court Opinion, 4/7/2016 at 2-4.
In his first claim, Drummond argues the trial court erred in failing to
dismiss the charges against him when the Commonwealth failed to exercise
due diligence in bringing him to trial within 365 days of the complaint being
filed. Pa.R.Crim.P. 600(A)(2)(a) provides:
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(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.
Pa.R.Crim.P. 600(A)(2)(a).
The rule further states:
For purposes of paragraph (A), 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 time within which trial shall
commence. Any other periods of delay shall be excluded from
the computation.
Pa.R.Crim.P. 600(C)(1).
Here, the complaint was filed on December 14, 2012. Drummond filed
his Rule 600 motion on June 23, 2014. It is important to recognize that Rule
600 was amended on October 1, 2012, with those amendments becoming
effective on July 1, 2013. Accordingly, Rule 600 changed during the
relevant time period. In his motion to dismiss and Appellant’s Brief,
Drummond refers to the new Rule 6002. Therefore, we analyze his
argument using the current rule. The comment to Rule 600 provides two
noteworthy, relevant, statements. First,
[i]n 2012, former Rule 600 was rescinded and new Rule 600
adopted to reorganize and clarify the provisions of the rule in
view of the long line of cases that have construed the rule. The
new rule incorporates from former Rule 600 the provisions
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2
Additionally, we note the motion to dismiss was filed almost one year after
new Rule 600 became effective, and both the Commonwealth and the trial
court analyzed the issue under the current version of the rule.
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concerning commencement of trial and the requirement of (A),
and the 120-day or 180-day time limits on pre-trial
incarceration, new paragraph (B). New paragraph (C),
concerning computation of time and continuances, and new
paragraph (D), concerning remedies, have been modified to
clarify the procedures and reflect changes in law.
Pa.R.Crim.P. 600, Comment.
The import of this comment is to reinforce the concept that the
changes to Rule 600 do not represent so much an actual change in the rule,
rather than a clarification of how the rule is to be interpreted and applied.
The Comment further discusses the computation of time:
For purposes of determining the time within which trial mist be
commenced pursuant to paragraph (A), paragraph (C)(1) makes
it clear that any delay in the commencement of trial that is not
attributable to the Commonwealth when the Commonwealth has
exercised due diligence must be excluded from the computation
of time Thus, the inquiry for a judge in determining whether
there is a violation of the time periods in paragraph (A) is
whether the delay is caused solely by the Commonwealth when
the Commonwealth has failed to exercise due diligence.
Id.
This comment provides a very straight-forward method of computing
time – only those periods of time solely attributable to Commonwealth, non-
due-diligent delay, are to be counted toward the 365 days.
Pursuant to Drummond’s motion, 556 days elapsed. In the motion,
Drummond argued,
Out of the 556 total days that had elapsed since the inception of
this case to the trial date of June 23, 2014, a total of 5 days
should be attributed to the defense.
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Motion to Dismiss, 6/23/2014, Conclusion at 8. The five days referred to in
Drummond’s motion are from June 7, 2013 to June 12, 2013, when a
preliminary hearing needed to be rescheduled due to Drummond not being
able to attend. However, we are compelled to agree with the
Commonwealth that there are an additional 208 days that cannot be counted
against the Commonwealth.
On June 12, 2013, the trial court set a trial date of January 6, 2014.
This trial date was specified as the “earliest possible date” consistent with
the trial court’s calendar. See Trial Court Opinion, 4/7/2016 at 11; Docket
entry, 6/12/2013.3 There is no indication in the certified record that the
Commonwealth had any control over the setting of this trial date. Pursuant
to Commonwealth v. Jones, 886 A.2d 689, 702 (Pa. Super. 2005) (time
between arraignment and first trial listing is not chargeable to the
Commonwealth where trial court determined the trial date was the earliest
possible date), this time must also be subtracted from the 556 days cited by
Drummond.4 The five days and 208 days make a total of 213 days that
cannot be charged against the Commonwealth for Rule 600 purposes.
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3
Specifically, the docket entry states, in relevant part: “Continued for status
of discovery on 7/3/13 and for a 3-day trial on 1/6/14 in Courtroom 608.
Earliest possible date consistent with police, counsel’s and the Court’s
schedules has been given.” (Emphasis added.)
4
We are aware that this issue has been accepted for review by our Supreme
Court. See Commonwealth v. Leon Mills, 27 EAP 2016.
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Accordingly, 556 minus 213 equals 343 days. Therefore, Drummond is not
entitled to relief.5
Drummond’s next claim is that the trial court abused its discretion in
imposing a sentence beyond the aggravated range of the sentencing
guidelines, relying only upon the perception of Drummond’s future behavior.
Drummond’s claim is a challenge to the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
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5
Drummond entered into a nolo contendere plea on October 6, 2014.
Pursuant to Rule 600, entry of a nolo contendere plea is deemed to be
commencement of trial. See Pa.R.Crim.P. 600(A)(1). Drummond did not
renew his Rule 600 motion prior to the plea. Drummond then withdrew his
plea in December 2014. See Pa.R.Crim.P. 600(B)(4). This afforded the
Commonwealth an extra 120 days to bring Drummond to trial. Drummond
was tried by a jury in late January – early February, 2015, well within the
120 day limit.
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Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
question exists “only when the appellant advances a colorable
argument that the sentencing judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra, at 912-13.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Here, Drummond has clearly met the first three criteria to
challenge his sentence. His appeal is timely, he preserved his claim of
an improper sentence by filing a relevant post-sentence motion, and
his appellant’s brief contains the appropriate Pa.R.A.P. 2119(f)
statement. What remains is a determination of whether Drummond
has presented our Court with a substantial question appropriate for
review.
Drummond has claimed the trial court:
completely failed to conduct an individualized consideration as to
Mr. Drummond’s rehabilitative needs as the Sentencing Code
requires, especially given his age and dormant criminal record,
dormant until a substance abuse problem clearly
emerged/reemerged. Instead the lower court focused entirely
on retribution and punishment.
Appellant’s Brief at 11 (Rule 2119(f) statement). A claim the court failed to
achieve individualized justice and imposed an unduly harsh sentence raises a
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substantial question. See Commonwealth v. Bowen, 55 A.3d 1254, 1263
(Pa. Super. 2013). Therefore, we will address this issue.
We have read the relevant notes of testimony, including from both the
trial and sentencing hearing. The record belies Drummond’s claim. At
sentencing, the trial court was presented with a detailed summation of
Drummond’s criminal and personal history. The personal history included a
recitation of Drummond’s many work skills and potential work opportunities.
Although Drummond’s mother had taken a protection from abuse order
against him, he claimed the rift with his mother had been mended. He also
claimed to have matured in discovering he had a daughter. The trial court
read and reviewed the presentence investigation report and heard argument
from both the Commonwealth and defense counsel. Before imposing
sentence, the trial judge stated:
The Court: I have considered the presentence, mental health,
prior record score, and the history of your offenses, the facts
and circumstances in this case, the sentencing guidelines as well
as the arguments of counsel and what you, Mr. Drummond[,]
have said.
Twenty-four arrests, 15 convictions, 18 commitments. That’s a
lot along with 8 revocations. And most interesting, you went to
state prison it looks like twice….
[Drummond]: Just once.
The Court: Well, I have in 1991, Judge Clark had given you 2
and-a-half to 5. Then I have Judge Anthony DeFino giving you 3
to 6 years in 1990.
[Drummond]: It was altogether.
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The Court: I see. So he made his concurrent to hers?
[Drummond]: I came home in 2006.
The Court: Okay. Well, you managed to earn two state prison
sentences, one from Judge Clark, which is not hard to do, and
one from Judge DeFino, which is not that easy to earn. And
despite 3 to 6 years – and that was for an aggravated assault
[with] a weapon, it looks like a gun –
[Commonwealth]: With a firearm.
The Court: - and we have PIC, you come back and you come
back in front of me for a large knife or whatever you want to call
it, with a burglary, all sorts of DUIs in the meantime.
You have all sorts of skills and abilities but it seems like you’ve
used them through your life to either threaten people, assault
people, I don’t know, shoot at people. I don’t know what
happened with this aggravated assault with the gun with Judge
DeFino giving you 3 to 6 years and then multiple, multiple DUIs.
Mr. Drummond, I don’t know what it will take to stop you from
committing other crimes, doing things. You say you were with
the wrong people. I would think 3 to 6 years would have been
the end of any type of the slightest criminal activity, even things
like littering on the street, that 3 to 6 years in state prison for
someone like yourself, I would have thought would would’ve
taken care of things but the DUIs and then this case culminated
and everything.
Based on what I’ve seen and what my concerns are about the
extensive recidivism that’s occurred here and the extensive
opportunities on probation and parole and the prior state
sentence coupled with the facts and circumstances of this case
and what I have read in the mental health presentence report, et
cetera, I’m going to sentence you to the following…
N.T. Sentencing, 6/9/2015 at 19-21.
Judge Ehrlich clearly considered a wide range of factors before issuing
the sentence. He stated ample reasons for imposing the sentence he did.
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We perceive no abuse of discretion therein. Accordingly, Drummond is not
entitled to relief on this issue.
Judgment of sentence affirmed.
Judge Jenkins did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2017
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