J-S74027-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
FRANK ROSELLI,                             :
                                           :
                   Appellant               : No. 891 EDA 2014

             Appeal from the Judgment of Sentence July 10, 2012,
                 Court of Common Pleas, Montgomery County,
               Criminal Division at No. CP-46-CR-0000820-2011

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED JANUARY 13, 2015

        Frank Roselli (“Roselli”) appeals from the judgment of sentence

entered following his convictions of burglary and theft by unlawful taking.1

Following our review, we affirm.

        The trial court ably summarized the operative facts as follows:

             These charges arose out of an incident that occurred
             on January 19, 2011[,] a little after midnight. At that
             time, Officer James Lee was called to 1728 DeKalb
             Street in Norristown, Pa. for a report of a burglary in
             progress. As he arrived at 1728 DeKalb Street and
             walked up the driveway, Officer Lee saw two other
             officers dealing with [Roselli] who was on the ground
             at that time. He also noticed a woman by the name
             of Rochelle Wisniewski who was yelling, and Joseph
             Staiber who identified himself as the homeowner.

             Prior to Officer Lee’s arrival, Staiber and Wisniewski
             returned home from a dinner at approximately 12:15
             a.m. on January 19, 2011. As they were pulling up


1
    18 Pa.C.S.A. §§ 3502(a), 3921(a).


*Retired Senior Judge assigned to the Superior Court.
J-S74027-14


          the driveway, Wisniewski saw someone in the home
          and said something to the effect of “that’s not Joey,’
          referring to their 19-year-old son. Staiber looked up
          and also saw an individual who he did not recognize
          in the home. Staiber threw his phone at Wisniewski
          and told her to call the police while he got out of the
          car. As he entered the home through the main
          entrance, Staiber grabbed a hockey stick that was
          propped up against the house for protection. When
          he got into his home, he saw [Roselli] moving fast
          toward the front of the house. [Roselli] was holding
          Wisniewski’s red suitcase with wires hanging out of it
          and Staiber noticed [that] [Roselli] was carrying two
          laptops, two iPads, and bottles of liquor underneath
          his arms.

          [Roselli] exited through the front door and Staiber
          followed him down the driveway and then north on
          DeKalb Street. Staiber continued to follow [Roselli]
          who was dropping Staiber’s items onto the ground,
          which was covered in ice and snow at the time.
          After circling the block, [Roselli] eventually ran back
          toward Staiber’s home and when [Roselli] became
          within 15-20 feet from Wisniewski, Staiber hit him
          with the hockey stick. At that point the police had
          arrived.

          The police took [Roselli] into their custody while
          Staiber and Officer Lee retraced the path to try to
          recover Staiber’s property. When they returned to
          their home, Staiber and Wisniewski noticed their
          entire house was ransacked and multiple items were
          missing. Additionally, [Roselli] was searched after
          being taken into custody and said search yielded
          multiple items including U.S. [c]urrency; seven
          rings; nine earrings; seven pendants; three watches;
          five bracelets; thirteen necklaces; one hair barrette;
          an ornamental cross; a tie tack; three bottles of
          medication prescribed to Staiber and Wisniewski; a
          Garmin GPS unit; a Nikon camera; two small book
          reading lights; two mini LED flashlights; a corkscrew;
          and a golf ball marker. At the police station the next




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J-S74027-14


            day, Staiber identified all of these items as belonging
            to him and his girlfriend, Wisniewski.

            A [c]riminal [c]omplaint was issued January 19,
            2011 and [Roselli] was ultimately convicted by a jury
            of [b]urglary and [t]heft by [u]nlawful [t]aking on
            April 12, 2012.     On July 10, 2012, this court
            sentenced [Roselli] to serve a mandatory term of
            imprisonment of [twenty-five] to [fifty] years under
            42 Pa.C.S.A. § 9714(a)(2).

Trial Court Opinion, 6/10/14, at 1-3.

      The procedural history following Roselli’s conviction is somewhat

complicated, but it is sufficient to note that he filed a post-sentence motion,

which the trial court denied after a hearing thereon. Roselli’s trial counsel,

the Public Defender’s Office, filed an untimely notice of appeal, which this

Court quashed. Roselli’s direct appeal rights were subsequently reinstated

as result of a PCRA petition filed on Roselli’s behalf.    This timely appeal

follows.

      Roselli presents the following eight issues on appeal:

            I.     Whether the weight of the evidence fails to
                   support the jury’s finding [that] [Roselli]
                   committed the crimes of [b]urglary [] and
                   [t]heft by [u]nlawful [t]aking [], and
                   specifically that Joseph Staiber was inside 1728
                   DeKalb Street in Norristown on January 19,
                   2011?

            II.    Whether the trial court erred in failing to
                   suppress the physical evidence found during a
                   warrantless search of [Roselli]?

            III.   Whether Joseph Staiber’s statement to police
                   should have not been given to the jury during



                                     -3-
J-S74027-14


                 deliberations as this was not admitted as
                 evidence at the time of trial?

          IV.    Whether [Roselli] should be awarded a new
                 trial or resentenced without application of 42
                 Pa.C.S.[A.] § 9714(a)(2) because the jury’s
                 finding that Joseph Staiber was inside 1728
                 DeKalb Street in Norristown on January 19,
                 2011 at the same time as [Roselli] is not
                 supported by competent evidence of record,
                 and without such a finding the [b]urglary
                 conviction does not fall within the definition of
                 “crime of violence” within the meaning of
                 “three-strikes law” and that the application of
                 the “three-strikes law” for an enhanced
                 sentence is illegal in this case?

          V.     Whether Pennsylvania’s mandatory minimum
                 statute set forth in 42 Pa.C.S.[A.] § 9714 is
                 unconstitutional in that it permits an automatic
                 increase of a defendant’s sentence beyond the
                 statutory maximum, without notice and
                 without a jury finding beyond a reasonable
                 doubt for its application in violation of the
                 United States and Pennsylvania Constitutions,
                 as well as Alleyne v. United States, 133
                 S.Ct. 2151 ([U.S.] 2013)?

          VI.    Whether Pennsylvania’s mandatory minimum
                 statute set forth in 42 Pa.C.S.[A.] § 9714 is
                 unconstitutional as applied to this matter in
                 that it permitted an automatic increase of a
                 defendant’s sentence beyond the statutory
                 maximum, without notice and without a jury
                 finding beyond a reasonable doubt for its
                 application in violation of United States
                 Constitutions, as well as Alleyne v. United
                 States, 133 S.Ct. 2151 ([U.S.] 2013)?

          VII.   Whether the Commonwealth failed to prove
                 that the enhanced sentencing penalties set
                 forth in 42 Pa.C.S.[A.] § 9714 should be
                 applied in this matter because the facts



                                    -4-
J-S74027-14


                     underlying the prior convictions were based
                     upon hearsay, as objected to by defense
                     counsel, consisting of [a]ffidavits of [p]robable
                     [c]ause and [b]ills of [i]nformation?

               VIII. Whether the trial court erred in denying
                     [Roselli’s] [m]otion for dismissal pursuant to
                     Pa.R.Crim.P. Rule [sic] 600 because he was
                     not brought to trial within 365 days of the filing
                     of the criminal complaint?

Roselli’s Brief at 6-7.

      Many of these issues involve overlapping considerations, and where

issues overlap, we will address them together. We begin with Roselli’s first

issue, which is a challenge to the weight of the evidence supporting his two

convictions.

               Appellate review of a weight claim is a review of
               the exercise of discretion, not of the underlying
               question of whether the verdict is against the
               weight of the evidence. Because the trial judge
               has had the opportunity to hear and see the
               evidence presented, an appellate court will give the
               gravest consideration to the findings and reasons
               advanced by the trial judge when reviewing a trial
               court's determination that the verdict is against the
               weight of the evidence. One of the least assailable
               reasons for granting or denying a new trial is the
               lower court’s conviction that the verdict was or was
               not against the weight of the evidence and that a
               new trial should be granted in the interest of justice.

               This does not mean that the exercise of discretion by
               the trial court in granting or denying a motion for a
               new trial based on a challenge to the weight of the
               evidence is unfettered. In describing the limits of a
               trial court’s discretion, we have explained[,] [t]he
               term ‘discretion’ imports the exercise of judgment,
               wisdom and skill so as to reach a dispassionate



                                        -5-
J-S74027-14


              conclusion within the framework of the law, and is
              not exercised for the purpose of giving effect to the
              will of the judge. Discretion must be exercised on the
              foundation of reason, as opposed to prejudice,
              personal motivations, caprice or arbitrary actions.
              Discretion is abused where the course pursued
              represents not merely an error of judgment, but
              where the judgment is manifestly unreasonable or
              where the law is not applied or where the record
              shows that the action is a result of partiality,
              prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the

original) (citations omitted).

      Accordingly, we are mindful that as we review Roselli’s claim, we are

not passing on the underlying question of whether the verdicts were against

the weight of the evidence, but rather we are considering whether the trial

court abused its discretion in denying his motion for a new trial based upon

his claim that the verdict was against the weight of the evidence. We are

focused, therefore, on evidence that the trial court’s ruling is “manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill-will.” Id.

      Roselli has not presented a relevant argument in light of our standard

and   scope    of   our   review.    He   frames    his   argument    in   terms   of

inconsistencies between Mr. Staiber’s trial testimony and the content of the

statement he gave to the police, and assails the jury’s fact finding. Roselli’s




                                        -6-
J-S74027-14


Brief at 20.2 He does not present any argument as to how he believes the

trial court abused its discretion in denying his post-sentence motion. Id. at

20-21. Roselli directs his entire argument to the underlying question of

whether his convictions are against the weight of the evidence. As stated

above, this is not the question before us for review.

      Roselli has failed to provide us with relevant argument relative to our

standard of review, and this Court will not develop an argument on his

behalf.   See Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super.

2006). In addition, however, our independent review of the record provides

us with ample support for the conclusion that the trial court did not abuse its

discretion in deciding that the verdicts in this case were not against the

weight of the evidence. We therefore find no merit to Roselli’s claim.

      In his second issue, Roselli argues that the trial court erred in denying

his motion to suppress items recovered from when the police searched him,

following his arrest, without a warrant. Roselli’s Brief at 21. The trial court

concluded that the arrest was adequately supported by probable cause, and

therefore, pursuant to “well-settled” Pennsylvania law, the police were

entitled to search Roselli following his arrest without a warrant. Trial Court


2
   Roselli also includes a one-sentence “argument” contending that an
element of theft by unlawful taking was not established because “the
property was dropped in the presence if the home owner.” Roselli’s Brief at
21. This statement attacks the sufficiency of the evidence supporting
Roselli’s theft conviction, which is a claim that he did not raise in his
statement of questions involved. See Appellant’s Brief at 6-7. As such, we
will not address it. See Pa.R.A.P. 2116(a).


                                     -7-
J-S74027-14


Opinion, 6/10/14, at 8 (citing Commonwealth v. Ventura, 975 A.2d 1128,

1139 (Pa. Super. 2009)). Roselli counters by asserting only that the arrest

was invalid because “law enforcement did not possess the requisite

information in order to place him under arrest at that point in time[.]”

Roselli’s Brief at 21.   He does not cite or discuss relevant case law that

would support his position.3

             [I]t is an appellant's duty to present arguments that
             are sufficiently developed for our review. [] Gould,
             912 A.2d [at] 873 []. The brief must support the
             claims with pertinent discussion, with references to
             the record and with citations to legal authorities. Id.;
             Pa.R.A.P. 2119(a), (b), (c). Citations to authorities
             must articulate the principles for which they are
             cited. Pa.R.A.P. 2119(b). This Court will not act as
             counsel and will not develop arguments on behalf of
             an appellant. Gould, 912 A.2d at 873. Moreover,
             when defects in a brief impede our ability to conduct
             meaningful appellate review, we may dismiss the
             appeal entirely or find certain issues to be waived.

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).

      Roselli’s complete failure to cite or discuss relevant case law

significantly impedes our ability to review this issue. The law surrounding

warrantless searches and seizures by the police is highly nuanced and the

application of this law depends almost entirely on the specific details of a

particular case.     As such, Roselli’s failure to include citations to and

discussion   of   relevant   case   law    effectively   precludes   our   ability   to



3
 We note that Roselli’s entire argument in support of this issue consists of
one paragraph.


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J-S74027-14


meaningfully review his claim.      As stated above, “[this] court will not

become the counsel for an appellant” and develop arguments on an

appellant’s behalf.   Gould, 912 A.2d at 873. We therefore find this issue

waived.

      Next, Roselli argues that the trial court should not have provided the

jury Mr. Staiber’s statement to the police during its deliberations because it

was never admitted as evidence during trial.     Roselli’s Brief at 22. Roselli

concedes that his trial counsel did not object to the statement being given to

the jury.4   He contends, however, that the failure to object “should not

preclude appellate review of this issue as it was inappropriate to permit the

jury to have a piece of evidence that was not properly admitted at trial.” Id.

We cannot agree. It is axiomatic that “[a] defendant must make a timely

and specific objection at trial or face waiver of her issue on appeal.”

Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa. Super. 2006); see also

Pa.R.A.P. 302. We are simply without discretion to overlook Roselli’s failure

to lodge a specific and timely objection to the trial court’s ruling, as he

encourages us to do. Accordingly, this issue is waived.

      We now turn to Roselli’s fourth issue, which purports to be an

argument regarding the jury’s finding that Mr. Staiber was in the home at



4
  Notably, the record reveals not only that Roselli did not object to the trial
court’s decision to allow the jury to view Mr. Staiber’s statement during
deliberations, but that he actively advocated for it. See N.T., 4/12/12, at
120.


                                     -9-
J-S74027-14


the same time as Roselli, which is required for the burglary conviction to

constitute a “crime of violence” within the meaning of the “three-strikes

law,” 42 Pa.C.S.A. § 9714 (“§ 9714”). Roselli’s Brief at 6, 23. However, he

puts forth no discussion regarding evidence of Mr. Staiber’s presence in the

home with Roselli. Rather, the entire argument on this point is dedicated to

Roselli’s claim that the evidence presented by the Commonwealth to

establish that Roselli had two prior crimes of violence was hearsay, and

therefore that the trial court erred in relying on it to conclude that § 9714

applied. Id. at 23-27. Similarly, in his seventh issue, Roselli argues that

the evidence put forth by the Commonwealth to prove that § 9714 applied

was hearsay, and therefore incompetent to support the trial court’s

conclusion.    Id. at 29.   As these issues present the same argument, we

address them together.5

      Section 9714 is entitled “Sentences for second and subsequent

offenses.” It provides, in relevant part, as follows:

              (a) Mandatory sentence.--

                (1) Any person who is convicted in any court of
                this Commonwealth of a crime of violence
                shall, if at the time of the commission of the
                current offense the person had previously been
                convicted of a crime of violence, be sentenced
                to a minimum sentence of at least ten years of


5
  Yet again, the argument presented by Roselli in support of these issues are
badly underdeveloped. In these instances, however, Roselli’s failure to
properly develop this claim does not significantly hamper our ability to
review the issue presented, and so we will not find it waived.


                                     - 10 -
J-S74027-14


              total confinement, notwithstanding any other
              provision of this title or other statute to the
              contrary. Upon a second conviction for a crime
              of violence, the court shall give the person oral
              and written notice of the penalties under this
              section for a third conviction for a crime of
              violence. Failure to provide such notice shall
              not render the offender ineligible to be
              sentenced under paragraph (2).

              (2) Where the person had at the time of the
              commission of the current offense previously
              been convicted of two or more such crimes of
              violence arising from separate criminal
              transactions, the person shall be sentenced to
              a minimum sentence of at least 25 years of
              total confinement, notwithstanding any other
              provision of this title or other statute to the
              contrary. Proof that the offender received
              notice of or otherwise knew or should have
              known of the penalties under this paragraph
              shall not be required. Upon conviction for a
              third or subsequent crime of violence the court
              may, if it determines that 25 years of total
              confinement is insufficient to protect the public
              safety,   sentence     the   offender    to  life
              imprisonment without parole.

           (d) Proof at sentencing.--Provisions of this
          section shall not be an element of the crime and
          notice thereof to the defendant shall not be required
          prior to conviction, but reasonable notice of the
          Commonwealth’s intention to proceed under this
          section shall be provided after conviction and before
          sentencing. The applicability of this section shall be
          determined at sentencing. The sentencing court,
          prior to imposing sentence on an offender under
          subsection (a), shall have a complete record of the
          previous convictions of the offender, copies of which
          shall be furnished to the offender. If the offender or
          the attorney for the Commonwealth contests the
          accuracy of the record, the court shall schedule a
          hearing and direct the offender and the attorney for



                                   - 11 -
J-S74027-14


          the Commonwealth to submit evidence regarding the
          previous convictions of the offender. The court
          shall then determine, by a preponderance of
          the evidence, the previous convictions of the
          offender and, if this section is applicable, shall
          impose sentence in accordance with this
          section. Should a previous conviction be vacated
          and an acquittal or final discharge entered
          subsequent to imposition of sentence under this
          section, the offender shall have the right to petition
          the sentencing court for reconsideration of sentence
          if this section would not have been applicable except
          for the conviction which was vacated.

                                  ***

          (g) Definition.--As used in this section, the term
          “crime of violence” means murder of the third
          degree, voluntary manslaughter, manslaughter of a
          law enforcement officer as defined in 18 Pa.C.S. §
          2507(c) or (d) (relating to criminal homicide of law
          enforcement officer), murder of the third degree
          involving an unborn child as defined in 18 Pa.C.S. §
          2604(c) (relating to murder of unborn child),
          aggravated assault of an unborn child as defined in
          18 Pa.C.S. § 2606 (relating to aggravated assault of
          unborn child), aggravated assault as defined in 18
          Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated
          assault), assault of law enforcement officer as
          defined in 18 Pa.C.S. § 2702.1 (relating to assault of
          law enforcement officer), use of weapons of mass
          destruction as defined in 18 Pa.C.S. § 2716(b)
          (relating to weapons of mass destruction), terrorism
          as defined in 18 Pa.C.S. § 2717(b)(2) (relating to
          terrorism), trafficking of persons when the offense is
          graded as a felony of the first degree as provided in
          18 Pa.C.S. § 3002 (relating to trafficking of persons),
          rape, involuntary deviate sexual intercourse,
          aggravated indecent assault, incest, sexual assault,
          arson endangering persons or aggravated arson as
          defined in 18 Pa.C.S. § 3301(a) or (a.1) (relating to
          arson and related offenses), ecoterrorism as
          classified in 18 Pa.C.S. § 3311(b)(3) (relating to



                                  - 12 -
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           ecoterrorism), kidnapping, burglary as defined in 18
           Pa.C.S. § 3502(a)(1)[6] (relating to burglary),
           robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii)
           or (iii) (relating to robbery), or robbery of a motor
           vehicle, drug delivery resulting in death as defined in
           18 Pa.C.S. § 2506(a) (relating to drug delivery
           resulting in death), or criminal attempt, criminal
           conspiracy or criminal solicitation to commit murder
           or any of the offenses listed above, or an equivalent
           crime under the laws of this Commonwealth in effect
           at the time of the commission of that offense or an
           equivalent crime in another jurisdiction.

42 Pa.C.S.A. § 9714(a),(d),(g) (emphasis added) (footnote added).

     Thus, the law requires that the trial court must make a determination,

based upon evidence before it, whether the defendant has previous

convictions for crimes of violence as defined by subsection (g).          At

sentencing in the present case, the Commonwealth offered a certified copy

of Roselli’s conviction of first-degree felony burglary from 1989 in Delaware

County and a copy of the affidavit of probable cause associated with that

conviction. The Commonwealth similarly offered a certified copy of Roselli’s

1998 first-degree felony burglary conviction from Dauphin County as well as

the affidavit of probable cause in that matter.     N.T., 7/10/12, at 7-11.

Roselli objected to the affidavits (which were the only documents stating

that another person was present in the home at the time Roselli burglarized



6
  “A person commits the offense of burglary if, with the intent to commit a
crime therein, the person[] (1) enters a building or occupied structure, or
separately secured or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense any person is present.”
18 Pa.C.S.A. § 3502(a)(1).


                                   - 13 -
J-S74027-14


them) as hearsay.        Id. at 8,10-11.      The trial court overruled Roselli’s

objection upon its rationalization that it is not bound by the rules of evidence

in a sentencing proceeding, and further that the documents presented by the

Commonwealth were “self-certifying, reliable documents.”              Trial Court

Opinion, 6/10/14, at 13. We can see no error in that determination. The

trial court is correct in that

             a proceeding held to determine sentence is not a
             trial, and the court is not bound by the restrictive
             rules of evidence properly applicable to trials.
             Commonwealth v. Orsino, [] 178 A.2d 843, 846
             (Pa. Super. 1962) (sentencing court has wide
             latitude in considering facts, regardless of whether
             such facts are produced by witnesses who the court
             sees and hears); Commonwealth ex rel.
             Hendrickson v. Myers, [] 144 A.2d 367, 371 ([Pa.]
             1958) (same); Commonwealth v. Petrillo, [] 16
             A.2d 50, 58 ([Pa.] 1940) (same). Rather, the court
             may receive any relevant information for the
             purposes of determining the proper penalty.
             Commonwealth v. Maroney, [] 193 A.2d 640, 642
             ([Pa. Super.] 1963), citing Orsino, supra.

             Although sentencing proceedings must comport with
             due process, the convicted defendant need not be
             accorded ‘the entire panoply of criminal trial
             procedural rights.” Commonwealth v. Wright, []
             494 A.2d 354, 360 ([Pa.] 1985), quoting Gardner v.
             Florida, 430 U.S. 349, 358 n. 9, 97 S.Ct. 1197,
             1205 n. 9, 51 L.Ed.2d 393, 402 n. 9 (1977), aff’d
             sub nom. McMillan v. Pennsylvania, 477 U.S. 79,
             106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In fact, “[t]he
             due process clause should not be treated as a device
             for freezing the evidential procedure of sentencing in
             the mold of trial procedure.” Maroney, 193 A.2d at
             642, quoting Williams v. New York, 337 U.S. 241,
             251, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337, 1344
             (1949) (as a matter of federal law, some hearsay
             concerning criminal conduct not resulting in


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J-S74027-14


               conviction    may    be   permitted     in   a   sentencing
               hearing).

Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999).

Here, the trial court found the certified documents from the Courts of

Common Pleas of Delaware and Dauphin Counties to be relevant, and, of

more importance, reliable sources to establish that persons were present at

the time Roselli committed the two prior burglaries. Despite his protestation

that the trial court should not have considered documents that contain

hearsay, Roselli has provided us with no authority to support his claim that

the trial court was precluded from considering hearsay statements. Roselli’s

Brief at 27, 29-30. To the contrary, our law provides that the trial court was

not bound by the rules of evidence, and therefore, the trial court was

permitted to consider any information it deemed relevant, including the

affidavits of probable cause submitted in connection with Roselli’s prior

convictions.

      In his fifth issue, Roselli challenges the constitutionality of § 9714.

Roselli argues that § 9714 is unconstitutional because it “permits an

automatic      increase     of a   defendant’s sentence         beyond the   statutory

maximum[] without … a jury finding beyond a reasonable doubt for its

application, in violation of … Alleyne v. United States, 133 S. Ct 2151

([U.S.] 2013).”      Roselli’s Brief at 27.       Roselli begins be recognizing that

pursuant to the United States’ Supreme Court’s decision in Alleyne, any fact

that could subject a defendant to the application of a mandatory minimum


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J-S74027-14


sentence must be found by a jury. Roselli notes that prior to the Alleyne

decision, an exception to this holding existed for prior convictions, as

provided in Almendarez–Torres v. United States, 532 U.S. 244 (1998),

but contends that the Alleyne decision has abrogated the exception created

in Almendarez-Torres.      Roselli’s Brief at 28.   We do not agree.    In the

Alleyne decision, the Supreme Court excluded the Almendarez-Torres

exception from its holding.     It stated, “In Almendarez–Torres [] we

recognized a narrow exception to this general rule for the fact of a prior

conviction. Because the parties do not contest that decision's vitality, we do

not revisit it for purposes of our decision today.” Alleyne, 133 S. Ct. at

2160 n.1 (citation omitted).     Thus, contrary to Roselli’s claim, a plain

reading of the Alleyne decision defeats his argument.7

      In his sixth issue, Roselli argues that the application of § 9714 in his

case is unconstitutional because the jury did not make the finding that he

has two prior convictions for crimes of violence.        Roselli’s Brief at 29.

Having rejected his claim that the jury was required to make this finding,

this issue fails.

      Finally, we reach Roselli’s last issue, in which he argues that the trial

court erred in denying his motion to dismiss the charges against him

because of a violation of Pa.R.Crim.P 600. Our standard of review for such


7
   We note that this Court recognized the continued validity of the
Almendarez-Torres exception in Commonwealth v. Lane, 81 A.3d 974
n.5 (Pa. Super. 2013).


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claims is whether the trial court abused its discretion. Commonwealth v.

Baird, 919 A.2d 258, 260 (Pa. Super. 2007).

           To determine whether dismissal is required under
           Rule 600, a court must first calculate the mechanical
           run date, which is 365 days after the complaint was
           filed. Rule 600(C) addresses situations where time
           can be excluded from the computation of the
           deadline. Case law also provides that a court must
           account for any ‘excludable time’ and ‘excusable
           delay.’ Excludable time is delay that is attributable to
           the defendant or his counsel. Excusable delay is
           delay that occurs as a result of circumstances
           beyond the Commonwealth’s control and despite its
           due diligence. ... The only occasion requiring
           dismissal is when the Commonwealth fails to
           commence trial within 365 days of the filing of the
           written complaint, taking into account all excludable
           time and excusable delay.

Commonwealth v. Colon, 87 A.3d 352, 358 (Pa. Super. 2014) (internal

citations and quotations omitted).

     In the present case, the trial court found that the criminal complaint

was filed on January 19, 2011 and trial commenced on April 11, 2012, and

concluded that trial commenced 448 days after the Commonwealth filed the

criminal complaint against Roselli. Trial Court Opinion, 6/10/14, at 15-16.

The trial court further found multiple periods of excusable and excludable

delay. Of significance to this appeal, it concluded that 137 days of delay

were attributable to Roselli’s request for a competency evaluation, and

therefore excludable. Id. at 16. Adding the 137 days to the mechanical run

date of January 19, 2012, the trial court calculated an adjusted run date of




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June 4, 2012.   Id. at 16-17.   As trial ultimately commenced on April 11,

2012, which was within the adjusted run date, the trial court concludes there

was no Rule 600 violation. Id. at 17.

      The record reveals that the criminal complaint was filed on January 19,

2011, See Criminal Complaint, 1/19/11; N.T.; 3/26/12, at 41, making the

mechanical run date January 19, 2012. The case came up to be listed for

trial on June 7, 2011, at which time counsel for Roselli requested a

competency exam. N.T., 3/26/12, at 44-45. The case was relisted for trial

on September 20, 2011, although no competency exam had occurred. On

October 27, 2011, Roselli’s counsel renewed his request for a competency

exam, which finally occurred on November 18, 2012. Id. at 47. Following

the completion of the examination and the issuance of the resulting report

by the examining physician, the case was again placed on the trial list on

November 28, 2011.      Id. at 48.    The case was not reached during the

December, January, or February trial terms.      Id. at 48-49.   It was then

scheduled for trial on March 26-27, 2012. Id. at 49. On those days, the

trial court held hearings on Roselli’s Rule 600 and suppression motions. The

trial court denied both, and trial subsequently commenced on April 11, 2012.

      “[F]or purposes of [Rule 600], … this Court has held that a criminal

defendant is unavailable for trial from the time he requests a continuance for

evaluation of his competency until he is adjudged competent to stand trial.”




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Commonwealth v. Miskovitch, 64 A.3d 672, 681 (Pa. Super. 2013).

Thus, Roselli was unavailable for trial from June 7, 2011, until he was

declared competent, which occurred at the earliest on November 18, 2011,

when his competency evaluation occurred.       This is a period of 164 days.

Adding that to the mechanical run date of January 19, 2012, we arrive at an

adjusted run date of June 24, 2012. Roselli’s trial commenced on April 11,

2012, well within the permissible timeframe.

      Roselli argues only that the “delay for a competency evaluation cannot

be considered excludable time” because “[Roselli] never signed any Rule 600

waivers” for that period of time, yet he does not cite any authority in

support of this statement. Roselli’s Brief at 32. As stated above, our law

provides that delay attributable to a defendant’ request for a competency

evaluation is excludable for Rule 600 purposes. We know of no requirement

that the defendant must sign a waiver agreeing to this characterization, and

Roselli has cited to none.

      Having found some of the issue raised by Roselli waived and the

remaining issues meritless, we affirm his judgment of sentence.

      Judgment of sentence affirmed.

      Bender, P.J.E. joins the Memorandum.

      Strassburger, J. files a Concurring Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2015




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