J-S41011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JAMES A. ZIMMERMAN,

                        Appellant                 No. 1510 MDA 2014


              Appeal from the Order entered May 14, 2014,
            in the Court of Common Pleas of Lebanon County,
           Criminal Division, at No(s): CP-38-CR-0001502-2007


BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED JUNE 26, 2015

      James A. Zimmerman (“Appellant”) appeals from the order denying his

motion to dismiss pursuant to Pa.R.Crim.P. 600. We affirm.

      The trial court summarized the procedural history of this case as

follows:

            On June 18, 2007, a Criminal Complaint was filed which
      charged [Appellant] with Driving Under the Influence of Alcohol,
      High Rate of Alcohol, Third Offense, Driving Under the Influence
      of Alcohol, General Impairment, Third Offense, and the summary
      offenses of Driving While Operating Privilege is Suspended or
      Revoked, DUI-Related, Alcohol in System, and General Lighting
      Requirements for an incident which occurred on June 6, 2007.
      [Appellant] was notified that his Arraignment was scheduled for
      September 12, 2007 and was directed to appear for the Call of
      the List scheduled for October 25, 2007 and the term of Criminal
      Jury Trials on November 5, 2007. However, he failed to appear
      for Call of the List on October 25, 2007 and a Bench Warrant
      was issued. At that time, [Appellant’s] address was listed as
      250 Valley Lane, Annville, Pennsylvania, 17003.



*Retired Senior Judge assigned to the Superior Court.
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           On May 5, 2008, [Appellant] was incarcerated in the
     Lebanon County Correctional Facility (“LCCF”) for a sixty-day
     period after he pled guilty to the summary offense of Driving
     While Operating Privilege is Suspended or Revoked, DUI-Related,
     before the Honorable Michael D. Smith, Magisterial District
     Judge, 52-3-04 regarding an incident which had occurred on
     April 11, 2007. He was released from LCCF on July 3, 2008.
     Sometime subsequent to his release, [Appellant] moved from his
     previous address to his current residence at 2842 D Horseshoe
     Pike, Campbelltown, in Lebanon County.

           [Appellant] was arrested on the Bench Warrant issued in
     this case on June 29, 2013. He appeared at Bench Warrant
     Court on July 1, 2013 and bail was set in the amount of five
     hundred dollars ($500.00). He was directed to appear for the
     Call of the List scheduled for July 25, 2013. On July 10, 2013,
     [Appellant] posted bail and was released from custody.

           [Appellant] applied for and was granted court-appointed
     counsel on July 15, 2013. After he submitted an application for
     the Lebanon County DUI-Court program, his Call of the List date
     was continued from July 25, 2013, to August 29, 2013, and then
     again to October 24, 2013. On October 24, 2013, [Appellant]
     appeared and entered a negotiated plea for a sentence of a nine-
     month minimum, with the Judge to set the maximum, and
     standard DUI conditions. On December 18, 2013, [Appellant]
     appeared for Sentencing but requested and was granted a
     continuance to January 22, 2014 to investigate potential Rule
     600 issues.

          On January 15, 2014, [Appellant] filed a Motion to Dismiss
     Pursuant to Rule 600 of the Pennsylvania Rules of Criminal
     Procedure on the basis that the Commonwealth failed to bring
     him to trial within the 365 days permitted by Pa.R.Crim.P. 600.
     The Commonwealth filed its Response on January 30, 2014 and
     on February 12, 2014, we conducted a hearing on the Motion.

Trial Court Opinion, 5/14/14, at 1-3 (footnote omitted).

     Following the hearing, the trial court denied Appellant’s motion to

dismiss.   On June 11, 2014, the trial court sentenced Appellant to nine

months to five years of incarceration.      Appellant filed a post-sentence


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motion, which the trial court denied on August 19, 2014. This timely appeal

followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

      Appellant presents a single issue for our review:

      Did the Lower Court err in denying Appellant’s Motion to Dismiss
      Charges pursuant to Rule 600 because the requisite three
      hundred sixty-five (365) days had elapsed since the filing of the
      criminal complaint in this matter, and the Commonwealth failed
      to exercise due diligence in determining Appellant’s whereabouts
      over that time period?

Appellant’s Brief at 4.

      Initially, we recognize:

      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


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

Commonwealth v. Thompson, 93 A.3d 478, 486-487 (Pa. Super. 2014)

(citations omitted).

        The essence of Appellant’s argument is that although he “missed a

court    date    early   in   his   proceedings,   he    was   thereafter    in   the

Commonwealth’s custody for a period of two months, after which time there

was an unreasonable delay in bringing [Appellant to court] to answer to his

charges.”       Appellant’s Brief at 9.     Appellant further asserts that the

Commonwealth failed to exercise due diligence in bringing him to trial

because he was incarcerated from May 5, 2008 until his release on July 3,

2008, when “he could have been easily transported to the Court House.” Id.

        The Commonwealth counters that a due diligence analysis is not

necessary because Appellant waived his Pa.R.Crim.P. 600 claim when he

failed to appear for Call of the List on October 25, 2007.         Commonwealth

Brief at 4-7. The trial court takes this position as well. Trial Court Opinion,

5/14/14, at 6-11.        Both the Commonwealth and the trial court cite our

Supreme Court’s decisions in Commonwealth v. Brock, 61 A.3d 1015 (Pa.

2013) and Commonwealth v. Steltz, 560 A.2d 1390 (Pa. 1989).

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     Applying those cases to the facts of his case, the trial court reasoned:

            [Appellant] attempts to distinguish these cases on the
     basis that he merely failed to appear for the Call of the List and
     not the actual Trial of his case. A similar issue was addressed in
     Brock. In that case, the Superior Court had distinguished the
     facts from Steltz on the basis that the defendant in Steltz
     absconded after the jury venire had been empaneled, which it
     deemed a substantive stage leading to the guilt determining
     process, and in Brock the jury had not yet been impaneled. In
     addressing this issue, the Supreme Court noted that although
     preliminary calendar calls do not constitute commencement of a
     trial, “…[t]he impact of the defendant’s failure to appear is
     equally adverse regardless of the stage of the proceedings; once
     a case has been is (sic) listed for trial, it is irrelevant whether
     the defendant absents himself before the proceedings commence
     or after a substantive event had occurred, as in Steltz. A
     defendant cannot be permitted to frustrate the judicial process in
     this manner.” Brock, supra at 1022.

            Here, [Appellant] was on the Criminal Call of the List and
     had not only been ordered to appear at the Call on October 25,
     2007, but had also been directed to appear for Trial during the
     Term of Criminal Jury Trials which would commence a few days
     later on November 5, 2007.         He failed to appear at both
     proceedings. Regardless of whether he absented himself from
     Call of the List or on the day scheduled for the commencement
     of jury trials, his conduct disrupted the orderly process of this
     case and frustrated the Commonwealth’s efforts to comply with
     Rule 600. Under the reasoning of the Brock decision, we cannot
     approve his manipulation and frustration of the judicial process
     in this manner.

           [Appellant] argues that the fact that his guilty plea was
     entered beyond the expiration of the 365 time period requires
     that we dismiss the charges against him. In asserting this
     argument, he points to Commonwealth v. Bowes, 839 A.2d
     422 (Pa. Super. 2003). In that case, the Defendant initially
     entered his guilty plea prior to the expiration of the 365 days.
     He was subsequently permitted to withdraw his guilty plea and
     proceed to trial. Immediately prior to the beginning of his trial,
     he moved for dismissal under Rule 600. After the court denied
     his motion, he was tried and convicted of the charges. He then
     absconded prior to his sentencing. After being apprehended, he

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      made a second motion for dismissal based on the expiration of
      the 365 day period. The court simply held that the running of
      the time period under Rule 600 was tolled by the entry of his
      guilty plea prior to the expiration of the 365 days and engaged in
      a calculation of time periods under Rule 600.

             [Appellant] claims that Bowes somehow supports a
      different result here since he did not use his guilty plea to toll
      the running of the 365 days. We fail to see how this is so. In
      Bowes the defendant had absconded after his trial and, as such,
      there was no waiver issue. Here, [Appellant’s] decision not to
      appear at either the Call of the List, the November 2007 Trial
      term or thereafter, resulted in his waiver of all claims under Rule
      600.     This is a different scenario which was caused by
      [Appellant’s] disruption of the timely and orderly process toward
      the conclusion of his case and the timing of his guilty plea does
      not affect the outcome of this matter.

Trial Court Opinion, 5/14/14, at 8-11.

      The trial court’s reasoning is supported by our review of the record and

reading of case law, including Brock and Steltz. “[T]he general rule is that,

where a period of delay is caused by the defendant's willful failure to appear

at a court proceeding of which he has notice, exclusion is warranted.

Further, if a defendant is deemed to have had reasonable notice of court

proceedings, but fails to appear, the Commonwealth's due diligence in

attempting to locate him need not be assessed.” Commonwealth v.

Baird, 975 A.2d 1113, 1118 (Pa. 2009) (emphasis supplied).

      Here, Appellant concedes that he “missed a court date early in his

proceedings.”   See Appellant’s Brief at 9.   Given the facts before us and

applicable legal authority, we discern no abuse of discretion by the trial

court, and thus affirm the denial of Appellant’s motion to dismiss pursuant to

Pa.R.Crim.P. 600.

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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




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