J-A16014-19


                                   2019 PA Super 204

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES LEWIS MOORE                          :
                                               :
                       Appellant               :   No. 1980 MDA 2018

        Appeal from the Judgment of Sentence Entered October 30, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0003531-2017


BEFORE:       LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

OPINION BY LAZARUS, J.:                                   FILED JULY 01, 2019

        James Lewis Moore appeals from the judgment of sentence, entered in

the Court of Common Pleas of York County, after a jury convicted him of

possession of child pornography1 and dissemination of child pornography.2 On

appeal, Moore challenges the trial court’s denial of his motion to dismiss

pursuant to Pa.R.Crim.P. 600. Upon careful review, we affirm.

        The trial court set forth the factual and procedural history of this matter

as follows:

        On April 10, 2017, Officer Tiffany Pitts of the York City Police
        Department[] commenced an investigation of [Moore] at the
        request of the [Pennsylvania State Police (“PSP”)]—Megan’s Law
        Division. According to the PSP, an identified tipster alerted them
        that [Moore] owns a Facebook social media account, which could
        potentially be in violation of 18 [Pa.C.S.A.] § 4915.1 since [Moore]
____________________________________________


1   18 Pa.C.S.A. § 6312(d).

2   18 Pa.C.S.A. § 6312(c).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A16014-19


       had not reported having a cell phone or social media account to
       the PSP.4
          4 In 2009, [Moore] entered guilty pleas in federal court to
          child pornography offenses[.] He was released from federal
          custody July 22, 2016, and required to register as a sex
          offender.

       On April 25, 2017, after reviewing the questionable Facebook
       account which indicated the user’s familial relationship with a
       known relative of [Moore], Officer Pitts secured a Facebook
       warrant from the Honorable [] Gregory Snyder which, upon
       execution, unveiled child pornography within private inbox
       messages.     Immediately thereafter, Officer Pitts secured an
       electronics device warrant from [] Magisterial District Judge Joel
       N. Toluba. When Officer Pitts executed the search warrant the
       same afternoon at [Moore’s] residence located at the LifePath,[3]
       . . . [Moore] was seated in the shelter’s common area next to a
       cell phone he admitted belonged to him which was charging in an
       adjacent outlet. Officer Pitts Mirandized [Moore]; however, he
       made statements indicating that he was unsure whether his phone
       contained anything illegal. The officers seized [Moore’s] phone
       and three additional non-functional cell phones located in
       [Moore’s] personal storage area near where he slept.

       The following day, [Moore] phoned his federal probation officer to
       confess that he had been untruthful to him in the past and that he
       was indeed in ownership of a cell phone that was confiscated by
       police the day before. He also admitted owning a Facebook
       account and surfing the internet using Wi-Fi. A forensic analysis
       of [Moore’s] cell phone was completed on April 27, 2017, and
       revealed additional child pornography. [Moore] was swiftly placed
       under arrest.

Trial Court Opinion, 2/11/19, at 2-3.

       Moore was formally charged by criminal complaint filed on April 27,

2017. On July 5, 2018, he filed a motion to dismiss pursuant to Rule 600.

After a hearing held on July 9, 2018, the trial court denied Moore’s motion and
____________________________________________


3LifePath Christian Ministries provides homeless individuals in the City of York
with food, shelter, clothing, and medical care, as well as other programs and
services. https://lifepathyork.org/services/ (last visited 6/19/19).

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he immediately proceeded to trial, after which a jury convicted him of the

above offenses.      Sentencing was deferred until August 28, 2018, and was

subsequently continued until October 30, 2018, as a result of continuances

requested by the Commonwealth and the defense. While Moore’s sentencing

was pending, on August 14, 2018, the Commonwealth filed notice of its intent

to seek a mandatory minimum sentence of 25 years’ incarceration pursuant

to 42 Pa.C.S.A. § 9718.2.4

       On October 30, 2018, the trial court sentenced Moore to two concurrent,

mandatory sentences of 25 to 50 years’ imprisonment.          Moore filed post-

sentence motions, which were denied by the court on November 2, 2018.

Moore filed a timely appeal, followed by a court-ordered concise statement of

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

following question for our review:

       The Commonwealth failed to bring [Moore’s] case to trial within
       the time limits of [Rule] 600. The trial court erred when it counted
       time for a continuance issued by the district judge as excusable
       delay. The district judge provided no reason for the continuance,
       thus there is no evidence that the continuance was based on
       judicial delay. That time was, therefore, not excludable time and
       caused [Moore’s] case to go over the Rule 600 time. The
       Commonwealth was not diligent in bringing [Moore’s] case to trial.

____________________________________________


4 Section 9718.2 provides that a person who is convicted of an offense
enumerated in 42 Pa.C.S.A. § 9799.14 (relating to sexual offenses and tier
system) “shall, if at the time of the commission of the current offense the
person had previously been convicted of an offense set forth in section
9799.14 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, be sentenced to a minimum sentence of at least 25 years of total
confinement[.]” 42 Pa.C.S.A. § 9718.2.

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      The trial court’s order denying [Moore’s] motion to dismiss based
      on Rule 600 should be reversed.

Brief of Appellant, at 4 (unnecessary capitalization omitted).

      Our standard and scope of review in analyzing a Rule 600 issue are both

well-settled.

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


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Commonwealth v. Peterson, 19 A.3d 1131, 1134–35 (Pa. Super. 2011),

quoting Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007).

     Rule 600 provides, in relevant part, as follows:

     Rule 600. Prompt Trial

        (A) Commencement of Trial; Time for Trial

                                    ...

           (2) Trial shall commence within the following time
           periods.

              (a) 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.

                                    ...

        (C) Computation of Time

           (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.

     Generally, Rule 600 requires that a defendant be brought to trial within

365 days of the filing of the criminal complaint. Pa.R.Crim.P. 600(A)(2)(a).

However, a defendant is not automatically entitled to discharge under Rule

600 where trial starts more than 365 days after the filing of the complaint.

Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013). Rather,



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Rule 600 “provides for dismissal of charges only in cases in which the

defendant has not been brought to trial within the term of the adjusted run

date, after subtracting all excludable and excusable time.” Id. The adjusted

run date is calculated by adding to the mechanical run date, i.e., the date 365

days from the complaint, both excludable time and excusable delay.           Id.

“Excludable time” is classified as periods of delay caused by the defendant.

Pa.R.Crim.P. 600(C)(2). “Excusable delay” occurs where the delay is caused

by circumstances beyond the Commonwealth’s control and despite its due

diligence. Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super. 2015).

“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.”   Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa.

Super. 2013) (citation omitted). Due diligence includes, inter alia, listing a

case for trial prior to the run date, preparedness for trial within the run date,

and keeping adequate records to ensure compliance with Rule 600.

Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. Super. 2007). Periods

of delay caused by the Commonwealth’s failure to exercise due diligence must

be included in the computation of time within which trial must commence.

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

      Here, the complaint was filed on April 27, 2017.         Accordingly, the

mechanical run date was April 27, 2018. It is undisputed that Moore requested

a continuance of his pre-trial conference, resulting in 64 days of excludable

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J-A16014-19



time and bringing his adjusted run date to June 30, 2018. Moore was brought

to trial on the first day of the court’s next trial term, July 9, 2018.5

       At issue in this matter is an additional 24-day period of delay caused by

a continuance of Moore’s preliminary hearing, ordered sua sponte by the

magisterial district justice (“MDJ”). The Commonwealth argues, and the trial

court found, that this period constituted excusable delay, as it was beyond the

Commonwealth’s control.         Moore, however, argues that the inquiry must not

end with the fact that the delay was ostensibly attributable to the court.

Rather, Moore asserts the Commonwealth must also demonstrate that it

exercised due diligence in bringing Moore to trial.       Moore claims that the

Commonwealth failed to exercise the necessary due diligence and that his

case should have, accordingly, been dismissed.

       Moore relies on our Supreme Court’s recent decision in Commonwealth

v. Mills, 162 A.3d 323 (Pa. 2017), in support of his claim. The question before

the Court in Mills was, specifically, whether 174 days between the filing of

the criminal complaint and a status conference should be excluded or included

for Rule 600 purposes and, more broadly, the proper meaning of the word

“delay” as used in the rule. The Commonwealth argued that, based on the

2012 revisions to Rule 600, it was essentially afforded “leeway to proceed,

without any diligence, to cause up to 365 days of delay in the commencement

____________________________________________


5The criminal division of the Court of Common Pleas of York County operates
on an every-other-month trial term. The terms relevant to this matter were
November 2017, January 2018, March 2018, May 2018 and July 2018.

                                           -7-
J-A16014-19



of any trial.” Id. at 324. In response, Mills asserted that “by attempting to

fairly account for ‘delay’ within the contours of the prompt-trial rule, [the

Supreme] Court never meant to transform its requirements to effectively toll

the 365-day period throughout all periods of trial preparation.” Id. Rather,

Moore argued, “[t]he concept of ‘delay’ refers to the passage of a period of

time that is outside of the ordinary, routine and expected passage of time.”

Id.

      The Court rejected the Commonwealth’s argument that the normal

progression of a case constitutes “delay” excludable from the Rule 600

computation. Rather, the Court left to the trial courts’ discretion the task of

“differentiat[ing] between time necessary [for] ordinary trial preparation and

judicial delay arising out of the court’s own scheduling concerns.” Id. The

Court acknowledged the inevitability of delays caused by busy court calendars,

and noted that “where 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.” Id. at 325.

      In a concurring opinion, Justice Wecht emphasized the overarching

importance of the Commonwealth’s due-diligence obligations, noting that “due

diligence must be proven by the Commonwealth, and assessed by the court,

before ‘judicial delay’ becomes a consideration in the time calculation[.]” Id.

at 326 (Wecht, J., dissenting). “Only if the Commonwealth has discharged its

duties with due diligence should a court consider other causes for the delay.”

Id.

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        Here, we can find no reason to disturb the trial court’s finding that the

Commonwealth acted with sufficient due diligence in bringing Moore to trial

and, thus, the sua sponte continuance by the MDJ constituted excusable delay.

As was testified to at the Rule 600 hearing, the Commonwealth was faced with

significant uncertainty throughout much of the pendency of this matter, which

was exacerbated by the every-other-month availability of the court for jury

trials in York County.          Early on, Moore was unavailable for pre-trial

proceedings due to the fact that he was in federal custody while the federal

government considered bringing charges against him.6 See N.T. Rule 600

Hearing, 7/9/18, at 16. The Commonwealth presented testimony that both

the assistant district attorney and Detective Pitts were in regular contact with

federal prosecutors regarding the status of that matter. See id. at 8, 20, 28.

In addition, Teresa Jauregui, Esquire, the prosecutor who was originally

handling the case, was responsible for trying numerous cases with more

pressing Rule 600 issues that took priority over Moore’s case during the

November, January and May trial terms. See id. at 16-18. When it became

clear that Moore’s case would need to be tried during the July term, Attorney

Jauregui arranged for current counsel to take over due to her caseload.     See

id. at 19.

        Moreover, the Commonwealth’s witnesses in this matter, Detective

Pitts, the affiant, and Jeff Ziegler, National Guard Phone Analyst, both had

____________________________________________


6   The federal government ultimately decided not to prosecute Moore.

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issues with unavailability.   Beginning in January 2018, Detective Pitts had

substantial periods of unavailability due to both personal and professional

circumstances, as well as military reserve obligations. Specifically, Detective

Pitts’ husband, also a police officer, was shot in the line of duty on January

18, 2018, resulting in her frequent absence from work to care for him. See

id. at 8, 13. Detective Pitts was also scheduled for military deployment in

May, which prevented Attorney Jauregui from listing the case on the May trial

calendar. See id. at 7. By the time Detective Pitts learned in early May that

she would not be deployed, it was too late to list the case for that month. See

id. at 18. Detective Pitts also attended police department trainings in May.

See id. at 13.

      In addition, Attorney Jauregui became aware that the Commonwealth’s

cell phone analyst, Mr. Ziegler, would have very limited availability during the

July trial term. See id. at 18-19. As a result, Attorney Jauregui contacted

another analyst to perform a separate analysis so that the case would be

prepared to proceed regardless of Mr. Ziegler’s availability. See id. at 19.

      At the conclusion of the Rule 600 hearing, the trial court made the

following findings:

      We have had though today much more additional testimony
      regarding other issues regarding due diligence on the part of the
      Commonwealth, including the availability or unavailability, as it
      [were], of Detective Tiffany Pitts both because of her military
      service and because of her husband’s injury, for which she took a
      period of Family Medical Leave.




                                     - 10 -
J-A16014-19


       We have also heard testimony regarding the initial analysis by Mr.
       Zeigler[7] and then a second analysis by Mr. Goodfellow of
       evidence that would be used at the time of trial.

       We have also heard the testimony, and I’m quite familiar with the
       date certain schedule of the prior prosecutor, Attorney Jauregui,
       as most of the cases that she mentioned in her testimony were
       cases heard before this [c]ourt on date certain trials during the
       November and January terms, as well as those that were
       previously scheduled in May and either were moved to make
       others of greater Rule 600 priority available or, in fact, listed for
       trial only to again at the last minute be resolved prior to the trial
       term when no other trials could be added to the list.

       Based on all the testimony we’ve heard today, we are now
       convinced that the Commonwealth did exercise due diligence in
       bringing this matter to trial and, therefore, the motion for
       dismissal pursuant to Rule 600 is denied.

Id. at 35-36.

       In light of all the foregoing, we can discern no abuse of discretion in the

trial court’s finding that the Commonwealth exercised due diligence

throughout the pendency of this matter. The testimony demonstrated that

both Attorney Jauregui and Detective Pitts made diligent efforts to maintain

regular contact with each other and to monitor and address any issues

potentially impacting Moore’s speedy trial rights under Rule 600. As this Court

has repeatedly stated, “[d]ue diligence does not require perfect vigilance and

punctilious care, but rather a showing by the Commonwealth that a reasonable

effort has been put forth.” Commonwealth v. Booze, 947 A.2d 1287, 1290

(Pa. Super. 2008). The Commonwealth met that threshold in this matter.
____________________________________________


7 The correct spelling of the phone analyst’s name is unclear from the record.
It is spelled “Ziegler” in the affidavit of probable cause and the notes of
testimony, but “Zeigler” in the trial court opinion.

                                          - 11 -
J-A16014-19



Accordingly, the trial court acted within its discretion in treating the 24 days

resulting from the MDJ’s sua sponte continuance as excusable delay and

denying Moore’s motion to dismiss. See Mills, supra.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/2019




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