J-S76009-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                         Appellee

                   v.

NEIL ANDREW NEIDIG,

                         Appellant                       No. 2135 MDA 2012


     Appeal from the Judgment of Sentence entered October 18, 2012,
        in the Court of Common Pleas of Northumberland County,
           Criminal Division, at No(s): CP-49-CR-0000756-2011
                       and CP-49-CR-0000295-2012


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

MEMORANDUM BY ALLEN, J.:                           FILED FEBRUARY 03, 2015

     This case arose from the investigation of the Thirty-Third Statewide

Investigating Grand Jury (“Grand Jury”) concerning the drug dealing

activities of Neil Andrew Neidig (“Appellant”) and his daughter Amy Neidig.

The Grand Jury issued a presentment on June 15, 2011, finding a basis for

the initiation of criminal charges. Appellant was arrested on July 26, 2011,

based on the Pennsylvania Attorney General's Office filing a criminal

complaint   charging    Appellant    with   thirty-one   counts   related   to   the

manufacture, delivery, or sale of controlled substances. In accordance with

Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), we remand for resentencing.

     The trial court summarized the relevant procedural history as follows:




*Former Justice specially assigned to the Superior Court.
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        A criminal complaint was filed on July 26th, 2011. Counsel for
        [Appellant] was appointed to represent Appellant on October
        17th 2011, when the [trial] court granted prior Counsel’s petition
        to withdraw. Counsel filed a Petition for Release on Nominal Bail
        pursuant to Pa.R.Crim.P. 600 on December 2nd 2011. A criminal
        pre-trial order was filed on January 6th 2012, which set Jury
        Selection for April 16th 2012, and trial for April 25th-27th of 2012.

        On February 28th 2012, [Appellant’s] Petition for Release was
        denied. On April 16th 2012, a new criminal pre-trial order was
        filed which scheduled Jury Selection for June 4th 2012, and trial
        June 19th-22nd of 2012.

        [Appellant] filed another Rule 600 motion on May 24 th 2012. On
        June 18th 2014, the [trial court] filed another criminal pre-trial
        order which set Jury Selection for July 9th 2012, and set trial for
        July 17th-20th of 2012.

        On July 6th 2012, [Appellant] filed a Motion in Limine requesting
        dismissal of charges under Rule 600. On the same day, the
        [trial court] entered an order directing that the same would be
        disposed of prior to trial on July 17th.

        At trial, on July 17th 2012 in a hearing held in chambers and out
        of the presence of the jury, the parties litigated the Motion in
        Limine.

                                        ***

        Immediately thereafter, the trial court denied [Appellant’s]
        Motion in Limine requesting dismissal for violation of
        Pa.R.Crim.P. 600 and proceeded with the jury trial.

Trial Court Opinion, 12/4/14, at 1-2

        At the conclusion of trial, the jury returned its guilty verdicts.

Appellant was sentenced on October 16, 2012.1             On October 26, 2012,

Appellant filed a post-sentence motion, which the trial court denied on
____________________________________________


1
    The judgment of sentence was docketed on October 18, 2012.



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October 31, 2012. Appellant filed a notice of appeal on November 29, 2012.

By order dated December 20, 2012,2 the trial court directed Appellant to file

within twenty-one days, a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).            Appellant failed to file a timely

concise statement and on March 18, 2013, the trial court entered a Pa.R.A.P.

1925(a) opinion indicating that Appellant’s failure to file a Pa.R.A.P. 1925(b)

concise statement in a timely manner resulted in the waiver of all issues

raised on appeal.

       On January 3, 2014, this Court filed a memorandum which determined

that Appellant had waived all issues raised on appeal for failure to file a

Pa.R.A.P. 1925(b) statement, and affirmed the judgment of sentence. See

Commonwealth v. Neidig, 96 A.3d 1072 (Pa. Super. 2014) (unpublished).

Appellant filed a petition for allowance of appeal and on August 19, 2014,

the Pennsylvania Supreme Court entered a Per Curiam order vacating our

judgment and remanding for consideration of Pa.R.A.P. 1925(c).

       On September 23, 2014, this Court entered a Per Curiam order

remanding the case to the Northumberland County Court of Common Pleas

for Appellant to file a nunc pro tunc Pa.R.A.P. 1925(b) statement of errors
____________________________________________


2
  Although the trial court order is dated November 20, 2012, it was filed and
time-stamped December 20, 2012. We conclude that “November” was a
typographical error, as it is illogical that the trial court would issue an order
directing Appellant to file a Pa.R.A.P. 1925(b) statement nine days before
Appellant filed his notice of appeal on November 29, 2012, and that the
order should have been dated December 20, 2012.



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complained of on appeal and for the trial court to prepare a Pa.R.A.P.

1925(a) opinion.

       Appellant filed a Pa.R.A.P. concise statement on October 7, 2014, and

on December 4, 2014, the trial court filed an opinion pursuant to Pa.R.A.P.

1925(a).3

       Appellant presents the following issues for our review:4

          1. [Appellant] respectfully represents that error occurred
             when his Motion in Limine for dismissal of charges was
             denied despite the violations of Pa.R.Crim.P. 600.

          2. [Appellant] respectfully represents that error occurred
             where the jury heard testimony regarding alleged prior bad
             acts of [Appellant], specifically allegations of family history
             and that [Appellant] taught his daughter, witness Amy
             Neidig, the drug trade.

          3. [Appellant] respectfully represents that error occurred
             where the Commonwealth assured the jury in closing
             argument that witness Amy Neidig would be jailed, then
             asked the [trial court] that she be given probation, which
             she received.

          4. [Appellant] respectfully represents that error occurred
             where [Appellant] received a sentence which included
             enhancements for school zone violations, but those
             enhancements were inapplicable.
____________________________________________


3
  The Honorable Robert S. Sacavage of the Northumberland County Court of
Common Pleas who presided at Appellant’s trial has since obtained senior
judge status, and the Pa.R.A.P. 1925(a) opinion was authored by the
Honorable William Harvey Weist, P.J.
4
  The issues presented in Appellant’s Pa.R.A.P. 1925(b) statement filed on
October 7, 2014, are identical to the issues presented in Appellant’s original
brief filed with this Court on July 8, 2013. Therefore, we did not issue a
new briefing schedule.



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Appellant’s Pa.R.A.P. 1925(a) Concise Statement, 10/7/14.

        In his first issue, Appellant argues that the trial court erred in denying

his pre-trial motions for dismissal pursuant to the speedy trial rules set forth

in Pa.R.Crim.P. 600.5     6
                              Our review of the record reveals that Appellant was
____________________________________________


5
  A new version of Rule 600 was adopted on October 1, 2012 and became
effective on July 1, 2013. See 42 Pa.B. 6622. Since “Prior Rule 600” was in
effect at the time of the trial court’s decisions on Appellant’s Rule 600
motions, our analysis will focus on that version of the Rule.
6
    The “Prior Rule 600” which expired on July 1, 2013, provides:

     (A)
           (1)   Trial in a court case in which a written complaint is filed
                 against the defendant after June 30, 1973 but before July 1,
                 1974 shall commence no later than 270 days from the date
                 on which the complaint is filed.

           (2)   Trial in a court case in which a written complaint is filed
                 against the defendant, when the defendant is incarcerated on
                 that case, shall commence no later than 180 days from the
                 date on which the complaint is filed.

           (3)   Trial in a court case in which a written complaint is filed
                 against the defendant, when the defendant is at liberty on
                 bail, shall commence no later than 365 days from the date on
                 which the complaint is filed.

           (4)   Trial in a court case that is transferred from the juvenile court
                 to the trial or criminal division shall commence in accordance
                 with the provision set out in paragraphs (A)(2) and (A)(3)
                 except that the time is to run from the date of filing the
                 transfer order.

     (B)   For the purpose of this rule, trial shall be deemed to commence on
           the date the trial judge calls the case to trial, or the defendant
           tenders a plea of guilty or nolo contendere.

(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

   (C)    In determining the period for commencement of trial, there shall be
          excluded therefrom:

      (1)    the period of time between the filing of the written complaint
             and the defendant's arrest, provided that the defendant could
             not be apprehended because his or her whereabouts were
             unknown and could not be determined by due diligence;

      (2)    any period of time for which the defendant expressly waives Rule
             600;


      (3)    such period of delay at any stage of the proceedings as results
             from:

             (a)       the unavailability of the defendant or the defendant's
                       attorney;

             (b)       any continuance granted at the request of the defendant
                       or the defendant's attorney.

   (D)

      (1)    When a trial court has granted a new trial and no appeal has
             been perfected, the new trial shall commence within 120 days
             after the date of the order granting a new trial, if the defendant
             is incarcerated on that case. If the defendant has been released
             on bail, trial shall commence within 365 days of the trial court's
             order.

      (2)    When an appellate court has remanded a case to the trial court,
             if the defendant is incarcerated on that case, trial shall
             commence within 120 days after the date of remand as it
             appears in the appellate court docket. If the defendant has been
             released on bail, trial shall commence within 365 days after the
             date of remand.

      (3) When a trial court has ordered that a defendant's participation in
           the ARD program be terminated pursuant to Rule 184, trial shall
           commence within 120 days of the termination order if the
           defendant is incarcerated on that case. If the defendant has
(Footnote Continued Next Page)


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arrested on June 6, 2011, the criminal information was filed on July 26,

2011, and the jury trial commenced on July 17, 2012, within 365 days of the

filing of the criminal complaint.           Appellant was incarcerated during the

entirety of the pretrial period, the trial court having denied his petitions for

release on nominal bail after he had completed a term of pretrial
                       _______________________
(Footnote Continued)

             been released on bail, trial shall commence within 365 days of
             the termination order.

(E)   No defendant shall be held in pre-trial incarceration on a given case for
      a period exceeding 180 days excluding time described in paragraph
      (C) above. Any defendant held in excess of 180 days is entitled upon
      petition to immediate release on nominal bail.

(F)   Nothing in this rule shall be construed to modify any time limit
      contained in any statute of limitations.

(G)   For defendants on bail after the expiration of 365 days, at any time
      before trial, the defendant or the defendant's attorney may apply to
      the court for an order dismissing the charges with prejudice on the
      ground that this rule has been violated. A copy of such motion shall
      be served upon the attorney for the Commonwealth, who shall also
      have the right to be heard thereon.

      If the court, upon hearing, shall determine that the Commonwealth
      exercised due diligence and that the circumstances occasioning the
      postponement were beyond the control of the Commonwealth, the
      motion to dismiss shall be denied and the case shall be listed for trial
      on a date certain. If, on any successive listing of the case, the
      Commonwealth is not prepared to proceed to trial on the date fixed,
      the court shall determine whether the Commonwealth exercised due
      diligence in attempting to be prepared to proceed to trial. If, at any
      time, it is determined that the Commonwealth did not exercise due
      diligence, the court shall dismiss the charges and discharge the
      defendant. ...




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incarceration in excess of 180 days. See Pa.R.E.(A)(2) and (E). Appellant

argues that the Commonwealth failed to exercise due diligence in bringing

him to trial, and that the trial court erred in denying his petition for release

on nominal bail following his pretrial incarceration. Accordingly, he asserts

that he is entitled to dismissal of the charges against him pursuant to Rule

600.

       “To be clear, a violation of Rule 600 does not automatically entitle a

defendant to a discharge.       Indeed, 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.     In other words, 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. Goldman, 70 A.3d 874, 879-880

(Pa. Super. 2013) (citations omitted); Pa.R.Crim.P. 600((A)(3), (C) and (G).

In the instant case, the criminal information was filed on July 26, 2011, and

the jury trial commenced 357 days later on July 17, 2012.               Because

Appellant’s trial commenced within 365 days of the filing of the criminal

complaint, Appellant is not entitled to dismissal of the charges against him

pursuant to Rule 600(G). Goldman, supra.

       To the extent that Appellant asserts that he was held in pretrial

incarceration in excess of 180 days, even after accounting for any excludable

delay, Appellant is not entitled to any substantive relief on this claim.

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              Rule 600(A)(2) provides that when a defendant is
        incarcerated, trial shall commence no later than 180 days from
        the date the criminal complaint is filed. Rule 600(E) ... is a
        corollary to Rule 600(A)(2), providing that no defendant shall be
        held in pretrial incarceration for a period exceeding 180 days. If
        a defendant is so held, he shall be entitled to immediate release
        on nominal bail upon petition. Rule 600(E), however, provides
        for excludable time in accord with Rule 600(C). This Rule allows
        that in computing the running of the 180 days, delays resulting
        from defendant's actions or requests shall be excluded. The sum
        of these rules is that an incarcerated defendant must be tried
        within 180 days of a written complaint, and if such trial does not
        timely occur, the defendant is entitled to immediate release on
        nominal bail after spending 180 days in confinement, exclusive
        of delays occasioned by defendant

Commonwealth v. Dixon, 907 A.2d 468 (Pa. 2006). Our Supreme Court

has explained that release is mandatory under Rule 600(E) for a defendant

held in pretrial incarceration in excess of 180 days and that the trial court

has no discretion to deny release.      Commonwealth v. Sloan, 907 A.2d

460, 466 (Pa. 2006); Commonwealth v. Abdullah, 652 A.2d 811, 812-813

(Pa. 1995).

        Here, Appellant was arrested on June 6, 2011 and remained

imprisoned until the commencement of trial on July 17, 2012, a total of 407

days.     The trial court concluded that this delay was not attributable to

Appellant’s actions, and that it was occasioned in large part by scheduling

difficulties and judicial delay. Trial Court Opinion, 12/4/14, at 2-3, 16-17.

Upon review, we conclude that even if Appellant’s motion for release on

nominal bail was improperly denied after his pretrial incarceration in excess

of 180 days, “[t]here is no statutory or case law authorizing the discharge of



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a defendant who has not been brought to trial within the timing

requirements of Rule 600(A)(2).”               Goldman, 70 A.3d at 879-880 (Pa.

Super. 2013) (explaining that although the defendants were incarcerated for

over 180 days, the proper remedy was immediate release on nominal bail

pursuant to Rule 600(E), not dismissal).             See also Commonwealth v.

Abdullah, 652 A.2d 811, 813 (Pa. 1995) (explaining that “Rule 1100 does

not provide a remedy for a defendant who is improperly denied release on

nominal bail”). We are therefore unable to grant Appellant substantive relief

on his Rule 600 claim given that Appellant has already been tried and

convicted and is now serving his sentence.7              See Commonwealth v.

Dixon, 907 A.2d 468 (Pa. 2006) (recognizing that, where the appellant was

no longer being held in pretrial incarceration, and instead was currently

serving her sentence, we could not afford the appellant relief on her pretrial

claim that she should have been released on nominal bail, and the issue was

technically moot).8

____________________________________________


7
  We note that at the time of sentencing, Appellant received credit for time
served in the amount of 498 days. N.T., 10/16/12, at 43.
8
  Our Supreme Court in Dixon acknowledged that where a defendant’s Rule
600(E) petition for pretrial release on nominal bail was denied and (after the
defendant was convicted and sentenced), he challenged the denial of his
petition for pretrial release, such cases furnish “a classic example of the
well-recognized exception to the mootness doctrine applicable” where a case
is “capable of repetition yet evading review.” Dixon, 907 A.2d at 472-473.
“Pursuant to this principle, an appellate court may decide a case where
issues important to the public interest are involved, the nature of the
(Footnote Continued Next Page)


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      Appellant next argues that the trial court erred in permitting the jury

to hear testimony regarding his prior bad acts.                 Specifically, Appellant

challenges the testimony of Appellant’s daughter, Amy Neidig, who testified

that she “knew [her] dad had a past and that [her] dad got in trouble before

with weed.”    N.T., 7/18/12, at 61.             Our review of the record reveals that

after the Commonwealth elicited testimony from Amy Neidig regarding

Appellant’s prior criminal activity, Appellant’s counsel immediately objected

and the trial court promptly sustained the objection, and then instructed the

jury that Appellant was not on trial for any prior involvement in criminal

activity. Id. at 62. Given that the trial court sustained Appellant’s objection

and instructed the jury not to consider Appellant’s prior activities, any

prejudice from the prosecutor's remark was limited and did not warrant a

new trial.9   Moreover, prior to the commencement of trial, the trial court
                       _______________________
(Footnote Continued)

question under consideration is such that it will arise again, and review will
be repeatedly thwarted if strict rules of mootness are applied.” Id.

We conclude, here, that the Rule 600 issues regarding pretrial incarceration
raised by Appellant in this case have been addressed in Dixon, and
Commonwealth v. Sloan, 907 A.2d 460 (Pa. 2006) inter alia, and
therefore have not evaded review. Moreover, Rule 600 has since been
amended, thus reducing the likelihood that the circumstances of this
particular case are capable of repetition.
9
  In addition, “while it is true that evidence of prior crimes and bad acts is
generally inadmissible if offered for the sole purpose of demonstrating the
defendant's bad character or criminal propensity, the same evidence may be
admissible where relevant for another purpose” such as showing the
defendant's motive, the absence of mistake or accident, or a common
scheme or design. Commonwealth v. Powell, 956 A.2d 406, 419 (Pa.
(Footnote Continued Next Page)


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instructed the jury as follows: “If I sustain an objection, this means that the

witness is not permitted to answer the question ...             You must disregard

evidence or any other matters to which I sustain an objection.”              N.T.,

7/17/12, at 65.        The jury is presumed to follow the court's instructions.

Commonwealth v. Tedford, 960 A.2d 1, 37 (Pa. 2008). We therefore find

no merit to Appellant’s claim that the challenged statements were so

inflammatory as to warrant a new trial.

      Appellant        next    argues     that      the   Commonwealth   committed

prosecutorial misconduct when it suggested to the jury that Appellant’s

daughter, Amy Neidig, would likely be incarcerated as a result in her

involvement in drug distribution with Appellant. Appellant’s Brief at 40-41.

Appellant asserts that contrary to the prosecutor’s statements to the jury

that Amy Neidig was going to jail, Amy Neidig in fact received a sentence of

probation.   Appellant claims that the prosecutor’s actions in suggesting to

the jury that Amy Neidig would go to jail because of Appellant’s actions

constituted reversible error. We disagree.

      Our review of the record reveals that at trial, Appellant did not object

to the prosecutor’s statements during closing suggesting that Amy Neidig

would serve a term of imprisonment. Thus, Appellant’s attempt to raise a

claim of prosecutorial misconduct for the first time on appeal is waived. See

                       _______________________
(Footnote Continued)

2008) (internal citations omitted). Accordingly, the trial court could have
admitted the foregoing evidence on this basis.



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Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal”); Commonwealth v.

Stafford, 749 A.2d 489, 496 n. 7 (Pa. Super. 2000) (holding that a claim of

prosecutorial misconduct in closing statement was waived for failure to

object at time the remark was made). Moreover, based on the record before

us, we cannot independently verify whether or not Amy Neidig did in fact

receive jail time or probation, and we cannot afford Appellant relief based

simply on his bald assertions of facts outside of the record.            See

Commonwealth v. Chilcote, 578 A.2d 429, 440 (Pa. Super. 1990) (where

the appellant argued on appeal that his sentence was disproportional to that

received by his co-actor, but the record before us was devoid of any

information concerning the co-actor other than the appellant’s bald assertion

that this person received a time-served and probationary sentence,

appellant’s assertion involved matters dehors the record, and we declined to

consider the issue); Commonwealth v. Rini, 427 A.2d 1385, 1389 (Pa.

Super. 1981) (“it is an absolute rule that on appellate review, a court may

not consider facts outside the record”).

      In his final issue, Appellant argues that the trial court erred when it

imposed a sentence that included enhancements for offenses occurring

within a school zone pursuant to 18 Pa.C.S.A. § 6317.        Appellant’s sole

contention is that the Commonwealth failed to present any evidence as to

his age in order for the school zone enhancements to apply.       Appellants’

Brief at 41-42. Appellant argues that pursuant to 18 Pa.C.S.A. § 6317, the

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defendant must be over 18 years of age for the enhancement to apply.

Because no evidence was presented at trial that Appellant was over 18 years

of age, Appellant argues that the school zone enhancement should be

stricken from his sentence.

     In Commonwealth v. Bizzel, --- A.3d ---, 2014 WL 6756277 (Pa.

Super. 2014) this Court recently held that that 18 Pa.C.S.A. § 6317 is

unconstitutional in light of the decision of the United States Supreme Court

in Alleyne v. United States, ––– U.S. –––, 133 S.Ct. 2151, 186 L.Ed.2d

314 (2013). We are therefore constrained to vacate Appellant’s judgment of

sentence due to the unconstitutionality of 18 Pa.C.S. § 6317, and remand

for re-sentencing. In all other respects, we affirm Appellant’s judgment of

sentence.

     Judgment of sentence vacated due to the unconstitutionality of 18

Pa.C.S. § 6317. Case remanded for re-sentencing. Jurisdiction relinquished.

     Judge Lazarus joins the Memorandum.

     Justice Fitzgerald files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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