J-S35034-17

                                  2017 PA Super 178


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSHUA A. WENDEL                           :
                                               :
                      Appellant                :   No. 1838 WDA 2016

              Appeal from the Judgment of Sentence June 27, 2016
                  In the Court of Common Pleas of Elk County
              Criminal Division at No(s): CP-24-CR-0000097-2015


BEFORE:      LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                               FILED JUNE 07, 2017

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Elk County following Appellant’s conviction on the

charges of simple assault and criminal mischief.1         Appellant contends the

trial court abused its discretion in denying his motion to dismiss pursuant to

Pennsylvania Rule of Criminal Procedure 600.           After a careful review, we

affirm.

        The relevant facts and procedural history are as follows: On January

30, 2015, Appellant assaulted the nine-year-old victim, and on February 5,

2015, Police Officer Jason A. Miller filed a criminal complaint against

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2701(a)(1) and 3304(a)(1), respectively.
J-S35034-17


Appellant in the Office of Magisterial District Judge Mark S. Jacob.          A

preliminary hearing was scheduled for March 10, 2015; however, by letter

dated February 19, 2015, Officer Miller informed the magisterial district

judge that he was “scheduled to be at work related training in Harrisburg on

March 10, 2015.” See Letter, dated 2/19/15. Thus, Officer Miller asked that

Appellant’s preliminary hearing be continued.

      The magisterial district judge rescheduled the preliminary hearing to

March 17, 2015, noting such was necessary due to “Continuance requested

by   Jason   A.   Miller,   Reason:   Prosecution   Unavailable-Police[.]”   See

Magisterial District Judge’s Rescheduling Notice, dated 2/20/15. On March

17, 2015, a preliminary hearing was held, and all charges were bound over

to the Court of Common Pleas.

      On March 31, 2015, the Commonwealth filed a criminal Information

against Appellant, and on April 6, 2015, Appellant waived his formal

arraignment. On April 9, 2015, Appellant requested a Bill of Particulars, and

after the Commonwealth sent a letter indicating its refusal, Appellant filed a

motion to compel answers to Bill of Particulars on April 23, 2015.     The trial

court held a hearing on the motion, and on June 22, 2015, the trial court

filed an order granting Appellant’s motion and directing the Commonwealth’s

response by June 30, 2015.

      On November 18, 2015, the Commonwealth filed a praecipe to list

Appellant’s case for a jury trial, and accordingly, Appellant’s case was listed


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by the court for jury call on December 7, 2015, with voir dire to begin on

December 14, 2015.

        In the meantime, on November 23, 2015, the Commonwealth

answered Appellant’s Bill of Particulars, and on November 24, 2015,

Appellant filed a motion for relief relative to the Commonwealth’s late filing

of its answers.    On December 7, 2015, the trial court held a hearing on

Appellant’s motion, and following a hearing, by order dated December 7,

2015, the trial court granted Appellant relief, indicating that jury call was

continued until February 1, 2016, with voir dire to begin on February 8,

2016.     The trial court specifically noted “this time [is] chargeable to the

Commonwealth for purposes of Pa.R.Crim.P. 600.” Trial Court Order, dated

12/7/15.

        On February 8, 2016, Appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P. 600, and on that same date, jury selection occurred.

Subsequently, on March 28, 2016, the trial court held a hearing on

Appellant’s motion to dismiss.

        At the hearing, on direct-examination, Officer Miller confirmed that he

personally    requested   a   continuance   of   Appellant’s   March   10,   2016,

preliminary hearing. N.T., 3/28/16, at 5-6. He testified that he made the

request because he “was scheduled to go to [ ] leadership training in

Harrisburg, Pennsylvania, on March 10, 11[,] and 12.” Id. at 6. He noted

the training was scheduled well in advance of March 10, 2016, and it was for


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purposes of his employment. Id. Officer Miller completed the training and

received a certificate for “20 hours of training on leadership and law

enforcement.” Id. at 7.

      On cross-examination, Officer Miller indicated that he did not have

communication with the district attorney’s office or otherwise discuss with

that office his need for a continuance of the preliminary hearing. Id. at 17.

Rather, “as a matter of routine course[,]” he wrote directly to the

magisterial district judge in order to get a continuance. Id.

      By order and opinion filed on April 1, 2016, the trial court denied

Appellant’s motion to dismiss pursuant to Pa.R.Crim.P. 600, and Appellant

proceeded to a jury trial on April 7, 2016, following which he was convicted

by the jury of simple assault. The trial court found Appellant guilty of the

summary offense of criminal mischief.

      On June 27, 2016, Appellant was sentenced to an aggregate of thirty

months’ probation, with the first 45 days being served as house arrest

without electronic monitoring.      Appellant filed a timely post-sentence

motion, which the trial court denied on November 4, 2016.           This timely

appeal followed, and all Pa.R.A.P. 1925 requirements have been met.

      On appeal, Appellant’s sole claim is the trial court abused its discretion

when it denied Appellant’s motion to dismiss for the Commonwealth’s failure

to bring the matter to trial in a speedy fashion as required by Rule 600 of

the Pennsylvania Rules of Criminal Procedure. Specifically, he alleges that


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the Commonwealth was not duly diligent as it relates to the delay attributed

to Officer Miller’s request for a continuance of Appellant’s preliminary

hearing.

      We review Appellant's Rule 600 argument according to the following

principles:

            In evaluating Rule [600] issues, our standard of review of
      a trial court’s decision is whether the trial court abused its
      discretion. Judicial discretion requires action in conformity with
      law, upon facts and circumstances judicially before the court,
      after hearing and due consideration. An abuse of discretion is
      not merely an error of judgment, but if in reaching a conclusion
      the law is overridden or misapplied or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill will, as shown by the evidence or the record,
      discretion is abused.
             The proper scope of review is limited to the evidence on
      the record of the Rule [600] evidentiary hearing, and the
      findings of the [trial] court. An appellate court must view the
      facts in the light most favorable to the prevailing party.
            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.
             So long as there has been no misconduct on the part of
      the Commonwealth in an effort to evade the fundamental speedy
      trial rights of an accused, Rule [600] must be construed in a
      manner consistent with society’s right to punish and deter crime.
      In considering [these] matters..., courts must carefully factor
      into the ultimate equation not only the prerogatives of the


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     individual accused, but the collective right of the community to
     vigorous law enforcement as well.

Commonwealth v. Armstrong, 74 A.3d 228, 234–35 (Pa.Super. 2013)

(quotation omitted).

     Rule 600 provides in pertinent part: “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:

     (1) 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 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).

           To summarize, the courts of this Commonwealth employ
     three steps...in determining whether Rule 600 requires dismissal
     of charges against a defendant. First, Rule 600(A) provides the
     mechanical run date. Second, we determine whether any
     excludable time exists pursuant to Rule 600(C). We add the
     amount of excludable time, if any, to the mechanical run date to
     arrive at an adjusted run date.
           If the trial takes place after the adjusted run date, we
     apply the due diligence analysis set forth in Rule 600([D]). As
     we have explained, Rule 600[ ] encompasses a wide variety of
     circumstances under which a period of delay was outside the
     control of the Commonwealth and not the result of the
     Commonwealth’s lack of diligence. Any such period of delay
     results in an extension of the run date. Addition of any Rule
     600[ ] extensions to the adjusted run date produces the final
     Rule 600 run date. If the Commonwealth does not bring the
     defendant to trial on or before the final run date, the trial court
     must dismiss the charges.



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              Due diligence is a fact-specific concept that      must be
        determined on a case-by-case basis. 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.

Armstrong, 71 A.3d at 236 (quotation marks and quotations omitted).

        In the case sub judice, we must first determine the mechanical run

date under Rule 600.       “As the text of Rule 600(A) makes clear, the

mechanical run date comes 365 days after the date the complaint is filed.”

Commonwealth v. Ramos, 936 A.2d 1097, 1101 (Pa.Super. 2007) (en

banc). Here, as the parties agree and the trial court found, the complaint

was filed on February 5, 2015, and the mechanical run date was February 5,

2016.

        However, as the trial court determined, Appellant’s trial did not

commence until the parties were present and voir dire occurred on February

8, 2016, which was three days after the mechanical run date. See

Pa.R.Crim.P. 600 cmt. (“A trial commences when the trial judge determines

that the parties are present and directs them to proceed to voir dire or to

opening argument, or to the hearing of any motions that had been reserved

for the time of trial, or to the taking of testimony, or to some other such first

step in the trial.”) (citations omitted)); Commonwealth v. Brock, 619 Pa.

278, 61 A.3d 1015, 1020-21 (2013) (“It is not intended that preliminary

calendar calls should constitute commencement of a trial.”) (quotation

omitted)); Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355


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(1988) (holding that, even where the case has been called for trial, the trial

is not deemed to have commenced for speedy trial purposes until the jury is

empaneled, voir dire has occurred, or some other substantial step of trial

begins).

      This does not end our inquiry, however, as the trial court concluded

that the seven-day delay from March 10, 2015, to March 17, 2015, which

was attributed to Officer Miller’s unavailability and request for a continuance

of Appellant’s preliminary hearing, constituted “excusable delay,” thus

resulting   in   an   adjusted   run   date   of   February   12,   2016.   See

Commonwealth v. Preston, 904 A.2d 1 (Pa.Super. 2006) (en banc)

(explaining that “excusable delay” occurs as a result of circumstances

beyond the Commonwealth’s control despite its due diligence). We agree.

      It is well-settled that “[t]he Commonwealth cannot be held to be

acting without due diligence when a witness becomes unavailable due to

circumstances beyond its control.”     Commonwealth v. Hyland, 875 A.2d

1175, 1191 (Pa.Super. 2005) (citation to trial court opinion omitted). This

legal precept applies to police officers who are necessary witnesses.       See

Commonwealth v. Staten, 950 A.2d 1006 (Pa.Super. 2008) (where an

arresting police officer had been assigned to serve warrants on the date

scheduled for trial, and the Commonwealth requested a continuance, the

delay attributed thereto was “excusable delay”); Hyland, supra (where

trooper, who was affiant and lead investigator, was deployed to Iraq, the


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time attributed thereto was “excusable delay” since it was beyond the

control of the Commonwealth); Commonwealth v. Brawner, 553 A.2d 458

(Pa.Super. 1989) (where police officer’s unavailability due to vacation was

beyond the Commonwealth’s control, the extension of trial date was

“excusable time”).

      Here, Officer Miller, who was the affiant and lead investigator, was

unavailable for March 10, 2015, due to previously scheduled training related

to his law enforcement employment. The officer’s unavailability was beyond

the Commonwealth’s control, and thus, we agree with the trial court that the

period of time attributed thereto constitutes “excusable delay.” Thus, as the

trial court held, Appellant’s trial commenced prior to the adjusted run date

such that there was no Pa.R.Crim.P. 600 violation. See Preston, supra

(discussing “excusable delay” and “adjusted run date”).

      We specifically find unavailing Appellant’s argument that Officer

Miller’s unavailability does not constitute “excusable delay” since the officer,

as opposed to a member of the district attorney’s office, requested the

continuance   without   consultation    with   the   district   attorney’s   office.

Appellant reasons that the Commonwealth could not have exercised “due

diligence” if it was not even aware that the continuance was sought and

granted. See Appellant’s Brief at 9-12. Further, citing to Pa.R.Crim.P. 542,

he contends that only a “party” may request a continuance and Officer Miller

was not a “party.”   In this vein, he contends the district attorney’s office, as


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a party to this matter, should have in place policies and procedures so that,

if a continuance is required, a member of the district attorney’s office makes

the request at the preliminary hearing stage.

      Initially, we note that Pennsylvania Rule of Criminal Procedure 542

provides, in relevant part, the following:

      Rule 542. Preliminary Hearing; Continuances
      (A) The attorney for the Commonwealth may appear at a
      preliminary hearing[.]
                                      ***
      (B) When no attorney appears on behalf of the Commonwealth
      at a preliminary hearing, the affiant may be permitted to ask
      question of any witness who testifies.
                                      ***
      (G) Continuances
            (1) The issuing authority may, for cause shown, grant a
      continuance and shall note on the transcript every continuance
      together with:
                  (a) the grounds for granting each continuance;
                  (b) the identity of the party requesting such
            continuance; and
                  (c) the new date, time, and place for the
            preliminary hearing, and the reasons that the
            particular date was chosen.

Pa.R.Crim.P. 542 (emphasis in original).

      Further, the Comment to Rule 542 relevantly provides:

      As the judicial officer presiding at the preliminary hearing, the
      issuing authority controls the conduct of the preliminary hearing
      generally. When an attorney appears on behalf of the
      Commonwealth, the prosecution of the case is under the control
      of that attorney. When no attorney appears at the preliminary
      hearing on behalf of the Commonwealth, the issuing authority
      may ask questions of any witness who testifies, and the affiant


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      may request the issuing authority to ask specific questions. In
      the appropriate circumstances, the issuing authority may also
      permit the affiant to question Commonwealth witnesses, cross-
      examine defense witnesses, and make recommendations about
      the case to the issuing authority.

Pa.R.Crim.P. 542 cmt.

      In interpreting Pa.R.Crim.P. 542 and its Comment, and rejecting

Appellant’s claims, the trial court held as follows:

            [Appellant] has promoted that the continuance of the
      preliminary hearing requested by Officer Miller and not by the
      attorney for the Commonwealth cannot be considered “excusable
      time” in calculating the adjusted run date for a Rule 600 motion.
      [Appellant] has made reference to Pa.R.Crim.P. 542(G) which
      directs that a magisterial district judge is to identify the “party”
      requesting the continuance. [Appellant] asserts that since the
      Commonwealth and [Appellant] are the only parties to this case,
      only the attorney for the Commonwealth should be permitted to
      request a continuance of a scheduled preliminary hearing.
      [Appellant] has provided no authority that supports this position.
            There is no requirement that the attorney for the
      Commonwealth appear at a preliminary hearing, with
      Pa.R.Crim.P. 542(A) including the non-compulsory “may” in
      addressing the appearance of the Commonwealth’s attorney.
      Pa.R.Crim.P. 542(B) affords the affiant the ability to ask
      questions of a witness who testifies at a preliminary hearing
      when no attorney for the Commonwealth is present.
      Furthermore, the Comment to Pa.R.Crim.P. 542 provides “in the
      appropriate circumstances, the issuing authority may also permit
      the affiant to question Commonwealth witnesses, cross-examine
      defense witnesses, and make recommendations about the case
      to the issuing authority.”         [Thus, in]...the reading of
      Pa.R.Crim.P.    542[,]...the  affiant   is...the  Commonwealth
      representative in preliminary hearings when an attorney for the
      Commonwealth is not present....Th[e] court finds that
      [Appellant’s] contention that the Commonwealth’s attorney is
      the only representative of the Commonwealth as a party [in
      these circumstances] is without merit[.]




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Trial Court Opinion, filed 11/4/16, at 1-3. We find no abuse of discretion in

this regard. See Pa.R.Crim.P. 542 (Preliminary Hearings; Continuances).

       It is well-settled that “[t]he Rules of Criminal Procedure are to ‘be

construed in consonance with the rules of statutory construction[,]’

Pa.R.Crim.P. 101(C), which requires us to interpret the provisions in accord

with the plain meaning of their terms.” Commonwealth v. Allen, 630 Pa.

577, 107 A.3d 709, 716 (2014) (citation omitted). In the case sub judice,

there is no dispute that Officer Miller was the affiant, 2 and accordingly,

pursuant to the plain and express language of Rule 542, in the absence of a

Commonwealth attorney being present at the preliminary hearing, he was

permitted to function as such in a role as limited by the Rule. Consequently,

since the Rule provides that Officer Miller was permitted to function as a

Commonwealth representative for purposes of questioning witnesses, and if

needed, make recommendations to the issuing authority, it would be absurd

to conclude Officer Miller was not a “party” for purposes of requesting a

continuance. Accordingly, the trial court properly rejected Appellant’s claim.

See Commonwealth v. McCoy, 599 Pa. 599, 962 A.2d 1160, 1168 (2009)

(“When there is an interpretation available that gives effect to all of the

statute’s phrases and does not lead to an absurd result, that interpretation
____________________________________________


2
   Pa.R.Crim.P. 103, Definitions, provides the following: “Affiant is any
responsible person capable of taking an oath who signs, swears to, affirms,
or, when permitted by these rules, verifies a complaint and appreciates the
nature and quality of that person’s act.” (bold omitted).



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must prevail.”); Lower Merion Twp. v. Schenk, 372 A.2d 934 (Pa.Super.

1977) (en banc) (holding the Rules of Criminal Procedure are intended by

our Supreme Court to posses a similar dignity as that accorded to statutes

which are entitled to presumption that the Legislature did not intend a result

that is absurd).

      Finally, with regard to his Rule 600 claim, we remind Appellant that:

      Most significantly, both Rule [600] and the cases in which we
      have applied it proceed from the premise that so long as there
      has been no misconduct on the part of the Commonwealth in an
      effort to evade the fundamental speedy trial rights of an
      accused, Rule 600 must be construed in a manner consistent
      with society’s right to punish and deter crime. Thus, we do not
      apply the Rule mechanically nor will we affirm its application
      where the trial court’s construction of it fails to acknowledge the
      policies it serves. The Commonwealth’s stewardship therefore
      must be judged by what was done...rather than by what was not
      done.

Commonwealth v. Selenski, 919 A.2d 229, 232 (Pa.Super. 2007)

(quotation marks, quotations, and citations omitted).

      For all of the aforementioned reasons, we conclude that, in considering

the seven-day delay caused by Officer Miller’s unavailability, the trial court

did not err in concluding that such delay was “excusable,” and, therefore,

the adjusted run date pertinent to a Rule 600 analysis was February 12,

2016. Consequently, since Appellant’s trial commenced prior to the

expiration thereof, the trial court did not err in denying Appellant’s motion to

dismiss pursuant to Rule 600, and thus, we affirm.

      Affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2017




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