J-S54022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN EDWARD MCDONELL                      :
                                               :
                       Appellant               :   No. 165 WDA 2018

            Appeal from the Judgment of Sentence January 11, 2018
       In the Court of Common Pleas of Butler County Criminal Division at
                        No(s): CP-10-CR-0001612-2016


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:                           FILED OCTOBER 19, 2018

        Shawn Edward McDonell appeals from his judgment of sentence,

entered in the Court of Common Pleas of Butler County, after a jury convicted

him of two counts of recklessly endangering another person (“REAP”),1 and

one count each of defiant trespass2 and disorderly conduct.3 The trial court

also found him guilty of the summary offense of harassment.4 Upon review,

we affirm.




____________________________________________


1   18 Pa.C.S.A. § 2705.

2   18 Pa.C.S.A. § 3503(b)(1)(i).

3   18 Pa.C.S.A. § 5503(a)(4).

4   18 Pa.C.S.A. § 2709(a)(3).
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      On July 1, 2016, McDonell arrived at New Life Christian Church in

Jefferson Township, Butler County.     Church staff denied him entry to the

building. He returned to his pickup truck; he was subsequently seen burning

something in the truck’s bed. McDonell then drove around to the side of the

church, where people were setting up for a church anniversary picnic. Mark

Lutz, a pastor at the church, called Brian Summers, head of operations and

security at the church, and asked him to come to the church to talk to

McDonell.    Summers subsequently contacted Pennsylvania State Police

because he was concerned that McDonell would return to the church property

during the anniversary picnic to be held later that day.

      Police located McDonell at a nearby gas station, where he was informed

he was not allowed on church property until further notice. Church Pastor

Chris Marshall told McDonell that his wife was allowed to be on the property.

      That evening, McDonell pulled up to the church entrance to drop his wife

off for the picnic. McDonell was again informed that he was not allowed on

the property and that his wife would be provided a ride home after the picnic.

McDonell left the property, but returned shortly thereafter.   James Reedy,

church attendant in charge of parking lot security, stood in the path of

McDonell’s vehicle to prevent entry, but had to jump out of the way to avoid

being hit by McDonell’s truck.   McDonell drove his truck towards the area

where people were gathered for the picnic, but stalled before he reached it.

Summers detained McDonell and called the police. A church member drove


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McDonell’s truck back to the parking lot and later drove it back to his home.

McDonell later testified to having mechanical problems with the truck that

would not allow him to stop, but failed to mention that fact at the time of the

incident.

      McDonell was tried on October 24, 2017. A jury convicted him of two

counts of REAP, and one count each of defiant trespass and disorderly conduct.

The trial court, sitting without a jury, subsequently found McDonell guilty of

harassment.    On January 11, 2018, the trial court sentenced McDonell to

seventy-two months of probation. McDonell filed a notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). On appeal, McDonell raises the following issues:

      1.    Whether the trial court erred in denying the dismissal
            of [McDonell’s] charges due to violation of the
            [Pa.R.Crim.P] 600.

      2.    Whether the trial court erred in permitting
            Commonwealth witnesses to testify that infringed
            upon the [McDonell’s] pre-trial motion in limine
            seeking exclusion of testimony regarding prior specific
            instances of domestic violence or mental health
            conduct on the day of the charged criminal offense.

      3.    Whether the weight and sufficiency of the evidence
            presented by the Commonwealth is enough to sustain
            the guilty verdict rendered for the offense of [REAP].

Appellant’s Brief, at 12.

      McDonell first claims that the trial court erred in failing to grant his Rule

600 motion to dismiss.        Specifically, McDonell asserts the trial court

improperly excluded the time periods of July 6, 2017 through July 13, 2017

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as a delay attributable to the judiciary, and February 27, 2017 through March

16, 2017 as a delay attributable to his filing of an omnibus pretrial motion.

McDonell is entitled to no relief.

       Our standard of review with regard to claims brought under Rule 600 is

whether the trial court committed an abuse of discretion. Commonwealth

v. Hill, 736 A.2d 578, 581 (Pa. 1991). “An abuse of discretion is more than

just an error of judgment and, on appeal, a trial court will not be found to

have abused its discretion unless the record discloses that ‘the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill-will.’”   Commonwealth v. Lane, 424 A.2d 1325, 1328 (Pa. 1981),

quoting Commonwealth v. Braithwaite, 253 A.2d 423, 426 (Pa. Super.

1978). Our 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, 736

A.2d at 581. We must “view the facts in the light most favorable to the

prevailing party.” Id.

       Rule 600 requires that the Commonwealth bring a defendant to trial

within 365 days from the filing of the complaint. See Pa.R.Crim.P.

600(A)(2)(a). With regard to the computation of time, Rule 600 provides:

       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. Any other periods of delay shall
       be excluded from the computation.

Pa.R.Crim.P. 600(C)(1).


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      “[A]ny 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.”       Pa.R.Crim.P. 600, comment.

Therefore, “[i]f the delay occurred as the result of circumstances beyond the

Commonwealth’s control and despite its due diligence, the time is excluded.”

Id. Due diligence is a fact-specific concept and is determined on a case-by-

case basis.   Commonwealth v. Kubin, 637 A.2d 1025, 1027 (Pa. Super.

1994). “Due diligence does not require perfect vigilance and punctilious care,

but rather a showing by the Commonwealth that a reasonable effort has been

put forth.” Hill, 736 A.2d at 588.

      Furthermore, “the mere filing of a pretrial motion by a defendant does

not automatically render him unavailable.” Id. at 586. A defendant is only

unavailable for trial “if a delay in the commencement of trial is caused by the

filing of the motion.” Id. In order to establish that a delay is excludable, the

Commonwealth must demonstrate, by a preponderance of the evidence, that

it exercised due diligence in opposing or responding to the pretrial motion.

Id. at 587-88.

      Here, the Commonwealth filed the complaint on July 2, 2016.          This

required trial to commence on or before July 2, 2017, without time excluded.

Trial began with jury selection, 461 days later, on October 6, 2017. Thus,

absent a finding of excludable time, McDonell would be entitled to dismissal

under Rule 600.


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      The trial court declined to dismiss McDonell’s case, finding the periods

of July 6, 2016 through July 13, 2016 excludable at the behest of the

magistrate; February 27, 2017 through March 16, 2017 excludable because

McDonell filed a pretrial motion; and May 25, 2017 through August 16, 2017

excludable because McDonell requested a continuance.

      McDonell disputes the exclusion from the time period of July 6, 2016

through July 13, 2016 because, he asserts, the court was aware, when

scheduling the hearing for July 6, 2016, that it would need to reschedule. Rule

600, though, requires due diligence by the Commonwealth.           Because the

Commonwealth had no control over the schedule of the trial court, this time

is not chargeable to the Commonwealth. See Commonwealth v. Ramos,

936 A.2d 1097, 1104 (Pa. Super. 2007) (finding delay attributable to court’s

full calendar as excludable time); see also Commonwealth v. McCarthy,

180 A.3d 368, 376 (Pa. Super. 2018) (finding unavailability on trial court

calendar as excludable time). This exclusion of time was, therefore, proper.

      McDonell also disputes the exclusion of the time period between

February 27, 2017 and March 16, 2017 because, although he filed an omnibus

pretrial motion, it did not cause a trial delay. However, the filing of his first

pretrial motion, on February 1, 2017, did in fact cause a delay to the call of

the list originally scheduled for that same day.      When McDonell filed his

motion, the court rescheduled the call of the list for March 15, 2017. Although

McDonell claims his February 27, 2017 filing caused no delay, because the


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February 27, 2017 filing fell within the original period of delay caused by the

February 1, 2017 filing, the time is properly excludable.

      Thus, including the May 25, 2017 through August 16, 2017 delay,

caused by McDonell, which is not in dispute, McDonell’s trial occurred within

328 days, satisfying the requirements under Rule 600. Accordingly, the court

properly denied his motion to dismiss and we find no abuse of discretion. Hill,

supra.

      McDonell next claims that the trial court erred in permitting the

Commonwealth’s witnesses to testify regarding information that allegedly

violated the trial court’s order granting his motion in limine.    Specifically,

McDonell claims the court erroneously admitted testimony regarding

allegations of domestic violence and mental health conduct leading up to the

acts at issue. We disagree.

      A Rule 1925(b) statement must be specific enough for the trial court to

identify and address the issues the appellant wishes to raise on appeal.

Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001). If the

trial court has to guess at what issue appellant is raising, there is not enough

information for a meaningful review and appellant waives that issue. Id. at

687 (finding concise statement too vague for court to identify and address

issues appellant raised).

      Here, McDonell failed to specify, in his Rule 1925(b) statement, exactly

what testimony he believed violated the court order granting his motion in


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limine. As a result, in writing its Rule 1925(a) opinion, the trial court was

required to guess as to the testimony of which McDonell complained.5 On

appeal, McDonell bases his claim on entirely different testimony than that

addressed by the trial court.        Because the absence of a trial court opinion

addressing the issue raised on appeal “poses a substantial impediment to

meaningful and effective appellate review,” Commonwealth v. Lord, 719

A.2d 306, 308 (Pa. 1998), we are constrained to conclude that McDonell has

waived this issue on appeal. 6

       Finally, McDonell challenges the sufficiency and weight of the evidence

as to his conviction for REAP. Specifically, McDonell claims that there was no

testimony suggesting that anyone on the church property was in danger of

death or serious bodily injury. He is entitled to no relief.

       “The standard we apply when reviewing the sufficiency of the evidence

is whether viewing all the evidence admitted at trial in the light most favorable

to the verdict winner, there is sufficient evidence to enable the fact-finder to

find   every     element     of   the    crime   beyond   a   reasonable   doubt.”

Commonwealth v. Gibbs, 981 A.2d 274, 280 (Pa. Super. 2009).


____________________________________________


5 The trial court, in its opinion pursuant to Pa.R.A.P. 1925(a), also believed
that McDonell had waived the claim because he did not specify the testimony
to which he referred.

6 Even if McDonell did not waive this issue, it is meritless. The testimony
McDonell complains of on appeal, regarding the fire in the bed of his truck,
has nothing to do with the allegations of domestic violence excluded by the
order granting the motion in limine.

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      A person commits REAP when he “recklessly engages in conduct which

places or may place another person in danger of death or serious bodily

injury.”   18 Pa.C.S.A § 2705.   “A person acts recklessly with respect to a

material element of an offense when he consciously disregards a substantial

and unjustifiable risk that the material element exists or will result from his

conduct.”    Commonwealth v. Huggins, 836 A.2d 862, 868 (Pa. Super.

2003). The Commonwealth carries the burden of proving either that conduct

is reckless or allows for an inference of recklessness, which the defendant can

refute. See id. at 866-67.

      In challenging the sufficiency of the evidence supporting his conviction,

McDonell contends that the Commonwealth failed to “demonstrate that any of

the 50 to 75 unnamed celebration attendants were or may have been in

danger of death of serious bodily injury.” Appellant’s Brief, at 31. However,

there was ample testimony to support the guilty verdict. Mark Lutz testified

to seeing McDonell’s “red pickup truck coming down off [the] parking lot . . .

down over the hill into the field and began to make a left-hand turn towards

the kids and the area where our church families were.” N.T Trial, 10/25/17,

at 45. Brian Summers testified that McDonell’s pickup truck went “barreling

through” the entranceway of the church, where security officials were

standing. N.T. Trial, 10/25/17, at 80-82. Summers also stated that the truck

headed towards the area where children’s bounce houses were set up. Id.

Reedy testified that he tried to block McDonell’s entrance to the church


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property by standing in the middle of the lane and blocking his path, but

McDonell continued to proceed. Reedy “had to jump out of the way of the

vehicle” because “he was not slowing down at all” and “would have hit him.”

Id. at 107-108. This testimony amply demonstrates that, in driving his truck

towards Reedy and the children and families present at the festivities,

McDonell recklessly placed other people in danger of death or serious bodily

injury. Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, the jury could have determined beyond a reasonable

doubt that McDonell was guilty of REAP. See Gibbs, 981 A.2d at 280.

      Finally, McDonell claims that even if his sufficiency argument fails, the

Court should reverse the conviction based on the weight of the evidence. Such

a claim, though, must be presented to the trial court while it exercises

jurisdiction over a matter since “[a]ppellate review of a weight claim is a

review of the exercise of discretion, not the underlying question of whether

the verdict is against the weight of the evidence.”       Commonwealth v.

Widmer, 744 A.2d 745, 753 (Pa. 2000).         To preserve a challenge to the

weight of the evidence, the appellant must raise a motion for a new trial with

the trial judge, either:   (1) orally, on the record, at any time before

sentencing; (2) by written motion at any time before sentencing; or (3) in a

post-sentence motion. Pa.R.Crim.P. 607(A).

      Here, McDonell did not avail himself of any of the prescribed methods

of presenting his weight claim to the trial court and, therefore, his claim has


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been waived. See Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013)

(claim challenging weight of evidence cannot be raised for first time in Rule

1925(b) statement).7

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2018




____________________________________________


7 Even if this issue had not been waived, McDonell would not be entitled to
relief. McDonell claims the guilty verdict of REAP is against the weight of the
evidence because none of the 50 to 75 unnamed festival attendees were in
the path of his truck. However, there is ample evidence to the contrary,
including both Reedy and other children and families, and the fact that the
jury chose to give that testimony more weight is not to be disturbed on review.
See Widmer, 744 A.2d at 754; see also Commonwealth v. Laing, 456
A.2d 204, 207 (Pa. Super. 1983) (finding verdict for REAP not against weight
of evidence where defendant drove van towards man and then towards group
of people on sidewalk, knocking down some and causing others to jump out
of the way). The trial court did not abuse its discretion in finding McDonell’s
weight clam meritless.

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