J-A25020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES NEISSER                            :
                                          :
                   Appellant              :   No. 1121 EDA 2017

        Appeal from the Judgment of Sentence November 18, 2016
           In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0004150-2014


BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, J.:                            FILED APRIL 22, 2019

     Appellant, James Neisser, challenges the judgment of sentence entered

in the Philadelphia County Court of Common Pleas, following his convictions

for burglary and related offenses. After careful review, we affirm in part,

vacate in part, and remand for a new sentencing hearing.

     The trial court recounted the facts of this case as follows:

     On January 2, 2014, at approximately 9:30 a.m., complainant
     heard her husband engaged in a heated conversation with
     Appellant outside of complainant’s home located on the 12000
     block of Rambler Road in Philadelphia, PA. Complainant’s husband
     and Appellant were acquainted with each other as they had grown
     up together in the same neighborhood. After this confrontation,
     complainant’s husband left for work, leaving complainant and her
     two minor children in the house alone. This court notes that the
     record reveals that both young children have special needs.

     At approximately 10:00 a.m., complainant was in the family room,
     located on the first floor of the house, watching television with her
     son, who has a brain injury, while her daughter was asleep in a
     bedroom located on the second floor of the house. Complainant
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     heard noises similar to “shuffling of feet” and noticed a shadow in
     her kitchen. Complainant believed that the sounds were caused
     by her daughter, whereupon she inquired loudly about what her
     daughter was doing. However, complainant’s daughter never
     offered a response. Complainant then investigated the rooms
     located on the upper floor of the house, but returned downstairs
     when she discovered that her daughter was sound asleep upstairs
     and that there was nothing suspicious.

     Upon her return downstairs, complainant again heard footsteps
     resonating from the upper floor of the house. The complainant
     returned upstairs to conduct a more thorough search of the rooms
     on the second floor. When the complainant entered her bedroom,
     she noticed Appellant, dressed in a red hoodie and red
     sweatpants, attempting to hide under the bed. Complainant
     became worried for her safety as she knew that her husband kept
     a knife under the bed. When complainant inquired as to
     Appellant’s uninvited presence in her house, Appellant stated that
     the husband had allowed him to be at the house. Complainant
     repeatedly told Appellant to leave her house, but Appellant sat on
     the steps inside of her house and refused to leave. When Appellant
     refused to leave the house, complainant called 9-1-1.

     Subsequently, Appellant fled the house, running across the street
     to complainant’s neighbor. When police officers arrived at
     complainant’s house, complainant indicated that Appellant had
     burglarized the home, whereupon she pointed out Appellant as he
     attempted to enter into his motor vehicle. Subsequent to
     complainant identifying Appellant as the man who had entered her
     home uninvited, police officers placed Appellant in handcuffs and
     led him away from the vehicle he was attempting to enter.

     Prior to the officer placing Appellant in the police car, Appellant
     requested to change his clothing as he had defecated in his pants.
     The police officer led Appellant to Appellant’s sister’s residence
     across the street, whereupon the officer was preparing to allow
     Appellant to change his clothes inside the residence’s bathroom.
     However, before allowing Appellant to enter the bathroom by
     himself without the watchful eye of the police, the officer
     conducted a cursory safety pat down of Appellant’s clothing in
     order to search for any potential weapons. Pursuant to this search,
     the officer discovered a bracelet, later identified as a bracelet
     belonging to complainant’s husband.


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Trial Court Opinion, filed 10/25/17, at 4-6 (citations omitted).

        Appellant filed a motion to suppress, which was denied. He also filed a

motion to dismiss, pursuant to Pa.R.Crim.P. 600. The court denied this motion

as well. Appellant proceeded to a jury trial, where he was convicted of

burglary, criminal trespass, and theft by unlawful taking.1 The court deferred

sentencing until receipt of a pre-sentence investigation report and a mental

health evaluation. Prior to sentencing, Appellant filed a motion to dismiss

pursuant to Pa.R.Crim.P. 704, which was denied. Ultimately, the court

sentenced Appellant to a mandatory term of 10–20 years’ incarceration, based

on its finding that Appellant was a second strike offender pursuant to 42

Pa.C.S.A.    §   9714(a)(1).      Appellant    filed   an   unsuccessful   motion   for

reconsideration of his sentence, before ultimately filing a timely notice of

appeal. This appeal is now before us.

        Preliminarily, we must address issues related to Appellant’s concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On April 12, 2017, the court ordered Appellant to file the statement within 21

days. Instead, Appellant informed the court he had yet to receive the notes of

testimony from his trial, and requested an extension. The court granted two

extensions. The latter extension gave Appellant until July 21, 2017 to file his

statement.

        Appellant actually filed his statement on August 4, 2017. Appellant avers

____________________________________________


1   18 Pa.C.S.A. §§ 3502(a); 3503(a)(1); and 3921(a), respectively.

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he believed the initial extension was meant to provide him with 21 days to file

his statement from the date he received the notes of testimony. He claims he

did not receive the orders granting subsequent extensions, and that the notes

of testimony were provided to his counsel on July 17, 2017. He argues his

statement was therefore timely, having been filed within 21 days of July 17.

      We note the record does not state whether notice was provided for the

trial court’s extension orders. While the order requesting that Appellant file a

Rule 1925(b) statement expressly states service was made on Appellant’s

counsel, the orders granting extensions do not state whether service was

made. We cannot find waiver of Appellant’s issues where the record does not

clearly establish that notice was provided for the relevant orders. See

Commonwealth v. Williams, 959 A.2d 1252, 1255-1256 (Pa. Super. 2008).

Therefore, we will address the issues on their merits.

      Appellant first challenges the trial court’s denial of his motion to dismiss,

based on his allegation that his speedy trial rights were violated.

      “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). We evaluate Rule 600 issues

by   considering   whether    the   trial   court   abused   its   discretion.   See

Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006).

      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.
      We must view the facts in the light most favorable to the prevailing
      party.


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Id. (citation omitted).

      Additionally, when considering the trial court’s ruling, this Court is
      not permitted to ignore the dual purpose behind Rule 600. Rule
      600 serves two equally important functions: (1) the protection of
      the accused’s speedy trial rights, and (2) the protection of society.
      In determining whether an accused’s right to a speedy trial has
      been violated, consideration must be given to society’s right to
      effective prosecution of criminal cases, both to restrain those
      guilty of crime and to deter those contemplating it. However, the
      administrative mandate of Rule 600 was not designed to insulate
      the criminally accused from good faith prosecution delayed
      through no fault of the Commonwealth.

Commonwealth v. Hunt, 858 A.2d 1234, 1239 (Pa. Super. 2004) (en banc)

(citation omitted).

      The first step in conducting a Rule 600 analysis is to calculate the

“mechanical run date.” Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa.

Super. 2003). “The mechanical run date is the date by which the trial must

commence under Rule 600. It is calculated by adding 365 days … to the date

on which the criminal complaint is filed.” Id. (citation omitted). If a defendant

is not brought to trial until after the mechanical run date, and files a Rule 600

motion to dismiss, “the court must assess whether there is excludable time

and/or excusable delay.” Hunt, 858 A.2d at 1241 (citations omitted).

Excludable time consists of any periods after the filing of the criminal

complaint during which the defendant was unavailable, including any

continuances requested by the defendant. See Pa.R.Crim.P. 600(C)(2); Rule

600 Comment. The amount of excludable time is added to the mechanical run




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date to arrive at an adjusted run date. See Commonwealth v. Ramos, 936

A.2d 1097, 1102 (Pa. 2007).2

       In contrast, excusable delay is a delay not caused by the defendant, but

for which the Commonwealth has established, by a preponderance of the

evidence, that it acted with due diligence. See Commonwealth v. Selenski,

994 A.2d 1083, 1089 (Pa. 2010). “Due diligence is fact-specific, to be

determined case-by-case; it does not require perfect vigilance and punctilious

care, but merely a showing the Commonwealth has put forth a reasonable

effort.” See id. (citation omitted). “[W]here a trial-ready prosecutor must wait

several months due to a court calendar, the time should be treated as ‘delay’

for which the Commonwealth is not accountable.” Commonwealth v. Mills,

162 A.3d 323, 325 (Pa. 2017).

       Here, the criminal complaint was filed on January 2, 2014. Without any

excludable time, the mechanical run date would therefore have been January

2, 2015. However, there are several instances of excludable time and

excusable delay. First, 58 days are excusable delay (from January 17, 2014

to February 18, 2014 and March 13, 2014 to April 8, 2014) due the court’s

failure to have Appellant brought in from the local jail. Second, 4 days are

____________________________________________


2 The language of the new version of Rule 600, effective at the time the
Commonwealth filed the criminal complaint against Appellant, focuses on
delays caused by the Commonwealth through the failure of due diligence. See
Pa.R.Crim.P. 600(C)(1). As such, the terms “excludable time” and “excusable
delay” are arguably no longer explicitly relevant to the calculation of an
adjusted run date. We utilize them here merely to clarify those periods for
which the Commonwealth bore the burden of establishing due diligence.

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excludable time (from June 6, 2014 to June 10, 2014) due to a defense

request for discovery. Third, 246 days are excusable delay (from June 10,

2014 to February 11, 2015) due to court scheduling where the Commonwealth

was ready for trial. Fourth, 125 days were excusable delay (from July 8, 2015

to November 10, 2015) where a Commonwealth witness was ill and could not

testify when called. Fifth, 2 days were excludable delay (from November 10,

2015 to November 12, 2015) due to the court being involved in another jury

trial. Finally, 118 days were excusable delay (from November 12, 2015 to

March 9, 2016) due to court scheduling where the Commonwealth was ready

for trial.

       Appellant began trial on March 9, 2016, 797 days after the complaint

was filed. However, 553 days were either excludable time or excusable delay.

After these modifications, the includable time subject to Rule 600 time limits

was 244 days, well within the 365 days allowed. Appellant’s speedy trial rights

were not violated. Therefore, this issue is due no relief.

       Appellant also challenges the sentencing court’s determination that he

is a second strike offender, subject to the mandatory minimums of 42

Pa.C.S.A. § 9714(a)(1).

       A challenge to the application of the two strikes provision is a question

of statutory construction, which we review de novo, and for which our scope

of review is plenary. See Commonwealth v. Samuel, 961 A.2d 57, 60-61

(Pa. 2008). When interpreting a statute, this court must determine the

legislative intent underlying the statute. See id. “A statute’s plain language

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generally provides the best indication of legislative intent.” Commonwealth

v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009) (citations omitted). “When the

words of the statute are clear and free from all ambiguity, the letter of it is

not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. §

1921(b).

      Section 9714(a)(1) provides a mandatory minimum sentence of ten

years for a person previously convicted of a “crime of violence.” In the statute,

burglary as currently defined by 18 Pa.C.S.A. § 3502(a)(1) is considered a

crime of violence. See 42 Pa.C.S.A. § 9714(g).

      However, the current burglary statute is not identical to the burglary

statute in effect at the time of Appellant’s conviction in 1992. In 1992, the

offense was defined as follows:

      §3502. Burglary

      (a) Offense defined.—A person is guilty of burglary if he enters
      a building or occupied structure, or separately secured or occupied
      portion thereof, with intent to commit a crime therein, unless the
      premises are at the time open to the public or the actor is licensed
      or privileged to enter.

      (b) Defense.—It is a defense to prosecution for burglary that the
      building or structure was abandoned.

      (c) Grading.—

           (1) Except as provided in paragraph (2), burglary is a felony
           of the first degree.

           (2) If the building, structure or portion entered is not
           adapted for overnight accommodation and if no individual is
           present at the time of entry, burglary is a felony of the
           second degree.

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18 Pa.C.S.A. § 3502(a)-(c) (effective July 1, 1991).

      The current version of the statute states burglary occurs where a person

“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)(i),

(ii). Unlike the previous version of the burglary statute, the current version

requires both that the building was adapted for overnight accommodations

and was occupied at the time of the crime.

      Because the previous version of the statute did not have these identical

elements, a specific finding that the building was adapted for overnight

accommodations and a person was present during the crime were not required

facts at the time of Appellant’s 1992 conviction. However, in Samuel, the

Pennsylvania Supreme Court determined a sentencing court could make a

finding that a defendant’s previous conviction for burglary was a “crime of

violence” under Section 9714(g), even where the jury had not explicitly made

those factual determinations when reaching its conviction. See Samuel, 961

A.2d at 65.

      Here, the supplemental record, proffered by the Commonwealth at

Appellant’s sentencing, contains evidence of Appellant’s 1992 burglary

conviction. The criminal information from the 1992 plea states that Appellant

“feloniously did enter a building or occupied structure, or separately secured

or occupied portion thereof, with intent to commit a crime therein. The

premises at the time not being open to the public or the actor not being

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licensed or privileged to enter.” Criminal Information, filed 9/5/91, at 1. In

that same document, the separate charge for criminal trespass indicates that

Appellant “did defy an order to leave personally communicated to him by the

owner of the premises or other authorized person.” Id.

      In addition to the criminal information, the Commonwealth also

presented the instant sentencing court with the affidavit of probable cause for

the 1991 arrest warrant, the notes of testimony from the preliminary hearing,

the mental health evaluation of Appellant that occurred before the 1992

sentencing, the order denying Appellant’s motion to withdraw his guilty pleas

to burglary and criminal trespass, and the sentencing order. Of these, the

affidavit of probable cause, the notes of testimony from the preliminary

hearing, and the mental health evaluation indicate the victim was present in

1991 when Appellant committed burglary. The Commonwealth did not present

any testimony about the 1992 conviction at Appellant’s present sentencing

hearing.

      Appellant acknowledges the foregoing. However, he maintains the

Commonwealth failed to show that, at his guilty plea hearing in 1992, it

proffered these facts or that he actually admitted to them. We agree.

      The second strike statute dictates that the sentencing court “shall have

a complete record of the previous convictions of the offender[.]” 42

Pa.C.S.A. § 9714(d) (emphasis added). Though the Commonwealth supplied

evidence at sentencing that strongly suggests a person was present during

Appellant’s 1991 burglary, it failed to provide Appellant’s written guilty plea,

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notes of testimony from the guilty plea hearing, or a witness who could testify

to the proceedings at the hearing.

       In the absence of such evidence, we cannot deem the record of

Appellant’s previous burglary conviction to be “complete.” The Commonwealth

concedes as much in its brief. See Commonwealth’s Brief, at 12. (“The

Commonwealth’s evidence failed to show the actual agreed[-]upon guilty plea

facts necessary to establish a Section 9714 burglary.”) Consequently, the

evidence provided by the Commonwealth is insufficient to show Appellant’s

1992 burglary constituted a crime of violence, and therefore a first strike. And,

in the absence of an applicable first offense, Appellant cannot be deemed a

second strike offender under Section 9714(a)(1).

       Therefore, we are constrained to vacate Appellant’s judgment of

sentence. Though we affirm Appellant’s conviction for burglary, we vacate the

determination that Appellant is a second strike offender under Section

9714(a)(1), and remand for resentencing.3

       Judgment of sentence affirmed in part and vacated in part. Case

remanded for proceedings consistent with this memorandum. Jurisdiction

relinquished.




____________________________________________


3 As we have granted Appellant relief on this issue, we decline to reach his
remaining Section 9714(a)(1) sentencing challenges.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/19




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