J-A05028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOEY I. DIXON

                            Appellant                  No. 211 EDA 2015


             Appeal from the Judgment of Sentence August 5, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003861-2011


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 06, 2016

        Joey I. Dixon appeals from the judgment of sentence imposed August

5, 2014, in the Philadelphia County Court of Common Pleas. The trial court

sentenced Dixon to an aggregate term of 20 to 40 years’ imprisonment, plus

five years’ consecutive probation, following his conviction of robbery,

aggravated assault, possessing an instrument of crime (“PIC”), possession of

a firearm without a license, and possession of a firearm by a person

prohibited.1 On appeal, Dixon challenges only the trial court’s denial of his

pretrial motion to dismiss the charges based on a violation of Pennsylvania

Rule of Criminal Procedure 600. For the reasons that follow, we affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    See 18 Pa.C.S. §§ 3701, 2702(a)(1), 907, 6106, and 6105, respectively.
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     The   facts   underlying   Dixon’s   arrest   and   conviction   are   aptly

summarized by the trial court as follows:

           On November 19, 2010, Hasan Sampson agreed to meet
     [Dixon] at 5266 Burton Street, in the City and County of
     Philadelphia. Mr. Sampson drove to the location alone and
     double parked in the middle of the street to speak with [Dixon].
     During the conversation, [Dixon] told Mr. Sampson to get out of
     the car, but Mr. Sampson was afraid and refused, [and] he then
     subsequently drove away. [Dixon] then called Mr. Sampson and
     asked him to return to Burton Street and Mr. Sampson complied.
     When Mr. Sampson returned, [Dixon] convinced him to get out
     of the car by stating “you my folks.        Ain’t nothing gonna
     happen.” When Mr. Sampson stepped out of the car[, Dixon]
     grabbed him and attempted to take two phones and money out
     of Mr. Sampson’s pocket. During the altercation, [Dixon] stated
     “I’m telling you, I’m gonna pop you.” [Dixon] then shot Mr.
     Sampson in the leg. As Mr. Sampson ran to his car another shot
     was fired, but missed Mr. Sampson. Mr. Sampson was then
     taken to the hospital by his family members.

            After the shooting, the police received a 911 call reporting
     gunshots on [the] 5200 block of Burton Street. According to
     Officer Joseph Weihe, after arriving to the scene and doing a
     search of the area, the officers found blood on the ground that
     continued in a trail that led across the street. The officers then
     notified their superior and secured the scene to preserve any
     evidence. Around this time a call came into 911 from Aria
     Frankford Hospital reporting a patient with a gunshot wound.
     Officer Joseph Tigue responded to the hospital and took a
     statement from Mr. Sampson. Detective Christopher Casee was
     assigned to the case and responded to the scene on the night of
     the shooting. After leaving the scene, the detective went to the
     hospital to speak with Mr. Sampson. Mr. Sampson stated that
     he could not speak to the detective at that time so Detective
     Casee left the hospital. Mr. Sampson arrived at Northeast
     Detectives on November 22, 2010 to give a statement to
     Detective Casee. In this statement, Mr. Sampson identified
     [Dixon] as the person who shot him. During their investigation,
     the Philadelphia police recovered a fired .9-millimeter shell
     casing from the 5200 Burton Street area the following day.
     Based on the statement given by Mr. Sampson, police obtained
     and executed search warrants for locations where [Dixon] was

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       thought to be. [Dixon] was subsequently arrested at one of
       these locations while the police were serving the search warrant.

Trial Court Opinion, 8/3/2015, at 2-3 (record citations omitted).

       On November 23, 2010, Dixon was charged with attempted murder,

robbery, theft, aggravated assault, simple assault, recklessly endangering

another person (“REAP”), PIC, possession of a firearm without a license, and

possession of a firearm by a person prohibited.2 Dixon’s preliminary hearing

was continued twice when the victim, Sampson, failed to appear for court.

Thereafter, on February 1, 2011, Sampson was in the courthouse, but left

before   the    hearing began.3          The Commonwealth requested another

continuance, and later that month, withdrew all of the charges (“assault

charges”), except for the charge of possession of a firearm by a person

prohibited (“Section 6105 charge”), which could be tried without Sampson.4

Shortly thereafter, the Commonwealth refiled the assault charges, but

____________________________________________


2
 See 18 Pa.C.S. §§ 2502, 3701, 3921, 2702(a)(1), 2701, 2705, 907, 6106,
and 6105, respectively.
3
  At the Rule 600 hearing, Assistant District Attorney William Frantz, Jr.
(“ADA Frantz”) testified that Sampson “didn’t come willingly” to court, but
was “brought in by the detectives[.]” N.T., 3/5/2014, at 32-33. ADA Frantz
stated Sampson expressed he did not want to testify, and when ADA Frantz
explained he was required to do so under subpoena, “[t]he impression he
gave to [ADA Frantz] was of great reluctance if not outright fear of
testifying.” Id. at 34-35.
4
  At the Rule 600 hearing, ADA Frantz indicated the Section 6105 charge was
based on a firearm discovered in Dixon’s belongings during the execution of
a warrant. See id. at 37-38.




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withdrew them again on March 30, 2011. The case then proceeded on the

Section 6105 charge only.

        In the summer of 2012, ADA Franz was transferred to another office,

and Assistant District Attorney Alisa Shver (“ADA Shver”) was re-assigned

his cases. See N.T., 3/5/2014, at 40, 42. On September 10, 2012, when

the trial court was holding a scheduling conference for the Section 6105

charge, Sampson walked into the courtroom. After speaking with Sampson,

ADA Shver re-filed the assault charges on December 20, 2012, but “because

of the nature of [her] discussion … with Mr. Sampson[,]” she “moved the

case into the Grand Jury proceeding.” N.T., 3/5/2014, at 62. On January

25, 2013, a grand jury indicted Dixon on charges of attempted murder,

aggravated assault, robbery, PIC, possession of a firearm without a license,

and possession of a firearm by a person prohibited.            Thereafter, Dixon

moved to dismiss the charges based on a Rule 600 violation.5 The trial court

held a hearing on March 5, 2014, and on March 31, 2014, denied Dixon’s

Rule 600 motion.

        The case proceeded to a jury trial on June 2, 2014. At the beginning

of trial, the Commonwealth nol-prossed the attempted murder charge, and

the court bifurcated the Section 6105 charge.        On June 5, 2014, the jury

returned a verdict of guilty on the charges of robbery, aggravated assault,

____________________________________________


5
    A Rule 600 motion to dismiss is not included in the certified record.




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PIC, and possession of a firearm without a license.        The trial court found

Dixon guilty of the Section 6105 charge.

       On August 6, 2014, Dixon was sentenced to consecutive terms of 10 to

20 years’ imprisonment for robbery, 10 to 20 years’ imprisonment for

aggravated assault, and five years’ probation for the Section 6105 charge.

No further punishment was imposed on the remaining charges. Dixon filed a

post-sentence motion on August 8, 2014, and an amended post-sentence

motion on November 21, 2014. The trial court conducted a hearing, and on

January 8, 2015, denied Dixon’s motions. This timely appeal followed.6

       Dixon frames his sole issue on appeal as follows:

       Did the Lower Court err in denying the motion to dismiss under
       Rule 600 … where the Commonwealth failed to exercise due
       diligence in producing the complainant to testify?

Dixon’s Brief at 4.

       Pennsylvania Rule of Criminal Procedure 600 was designed “to protect

a defendant's speedy trial rights, as well as society’s right to effective

prosecution of criminal cases.”        Commonwealth v. Thompson, ___ A.3d

___, 2016 PA Super 75, *2 (Pa. Super. 2016) (quotation omitted). The Rule

mandates, inter alia, that a defendant must be tried on criminal charges no


____________________________________________


6
  On January 29, 2015, the trial court ordered Dixon to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Dixon complied with the court’s directive, and filed a concise statement on
February 19, 2015.




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later than 365 days after the criminal complaint is filed.        Pa.R.Crim.P.

600(A)(1)(3).7

       This straightforward calculation is known as the mechanical run
       date. See, e.g., [Commonwealth v.] Ramos, 936 A.2d [1097]
       1102 [(Pa. Super. 2007)]. However, those periods of delay
       caused by a defendant are excluded from the computation of the
       length of time of any pretrial incarceration. Pa.R.Crim.P. 600(C).
       Following these exclusions, if any, we arrive at an adjusted run
       date by extending the mechanical run date to account for these
       exclusions. See, e.g., Ramos, 936 A.2d at 1102. Any other
       delay that occurs, despite the Commonwealth’s due diligence, is
       deemed excusable and results in further adjustments to the
       effective run date. Pa.R.Crim.P. 600(G); see also Ramos, 936
       at 1102 (explaining that “[e]xcusable delay is a legal construct
       that takes into account delays which occur as a result of
       circumstances beyond the Commonwealth’s control and despite
       its due diligence”) (internal punctuation and citation omitted).

Thompson, supra, ___ A.3d ___, 2016 PA Super 75, at *3.

       After the expiration of the 365-day period, but before trial, a

defendant may move for dismissal of the charges with prejudice.             See

Pa.R.Crim.P. 600(G). Thereafter, the trial court is required to hold a hearing

to determine whether the Commonwealth “exercised due diligence and

[whether] the circumstances occasioning the postponement were beyond the

control of the Commonwealth,” in which case, the motion should be denied.
____________________________________________


7
  We note that a new Rule 600 was adopted, effective July 1, 2013, “to
reorganize and clarify the provisions of the rule in view of the long line of
cases that have construed the rule.” Pa.R.Crim.P. 600, Comment. However,
because the criminal complaint in this case was filed prior to the new rule,
we will apply the former version of Rule 600. Commonwealth v. Roles,
116 A.3d 122, 125, n.4 (Pa. Super. 2015), appeal denied, 128 A.3d 220 (Pa.
2015).




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Id.     When considering whether the Commonwealth acted with due

diligence, we note:

      “[T]he Commonwealth must do everything reasonable within its
      power to guarantee that a trial begins on time,” and the
      Commonwealth has the burden of demonstrating by a
      preponderance of the evidence that it exercised due diligence.
      “As has been oft stated, [d]ue 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.”

Commonwealth v. Colon, 87 A.3d 352, 359 (Pa. Super. 2014) (internal

citations omitted).

      In cases such as the one before us, where an initial complaint was

withdrawn or dismissed and the Commonwealth has re-filed charges, we

must also bear in mind the following:

      If, for example, the Commonwealth withdraws the first complaint
      in an attempt to avoid an imminent Rule 600 violation and then
      re-files the charges in hopes of circumventing that rule, then the
      Rule 600 time for the second complaint will be calculated from
      the filing of the first complaint.

            However, if the Commonwealth is diligent in prosecuting a
      complaint, and if the complaint is withdrawn or dismissed
      because of factors beyond the Commonwealth’s control, then the
      Commonwealth, upon re-filing the charges in a second
      complaint, is entitled to have the time under Rule 600 run from
      the date of that second filing.        Accordingly, in cases of
      subsequent complaints, the law requires that Rule 600 courts
      evaluate whether the Commonwealth was diligent with respect
      to the initial complaint.

            Additionally, if the Commonwealth was diligent in
      prosecuting the first complaint, the Commonwealth has no
      obligation under Rule 600 to re-file the charges within any
      particular time after the dismissal of the first complaint. This
      principle arises from the fact that, while no complaint is pending,


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     the language of Rule 600 is simply inapplicable. Moreover, in
     the absence of pending criminal charges, the individual in
     question is free—at least in a legal sense—from the anxiety that
     arises from official public accusation, and, as such, part of the
     purpose behind Rule 600—limiting the period of such anxiety—is
     not implicated. Naturally, the Commonwealth must comply with
     any applicable statute of limitations. However, for purposes of
     Rule 600, the time between the dismissal of the first complaint
     and the filing of the second is irrelevant if the Commonwealth
     was diligent on the first matter.

Commonwealth v. Claffey, 80 A.3d 780, 786-787 (Pa. Super. 2013)

(internal citations omitted), appeal denied, 86 A.3d 231 (Pa. 2014).

     We review an order denying a Rule 600 motion to dismiss for an abuse

of discretion, considering only the evidence of record at the Rule 600

hearing, and the trial court’s factual findings. Commonwealth v. Rhodes,

54 A.3d 908, 911 (Pa. Super. 2012) (citation omitted).        Further, “[a]n

appellate court must view the facts in the light most favorable to the

prevailing party[,]” which, in this case, is the Commonwealth.           Id.

(quotation omitted).

     Dixon’s Rule 600 argument focuses on his assertion that “[t]he

Commonwealth failed to exercise due diligence in producing the complaining

witness Hasan Sampson for trial.” Dixon’s Brief at 16. Dixon states, “At all

[relevant times before trial] … Sampson was under supervision of a

Pennsylvania parole agent or incarcerated.”      Id. at 19.     However, he

emphasizes ADA Frantz made only one telephone call to Sampson’s parole

officer to determine his whereabouts, and never gave her a subpoena to

serve on Sampson, or asked her to detain Sampson for his failure to appear



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in court. Id. at 22.    Moreover, although Sampson was incarcerated from

April 2011 until February 2012, Dixon points out that ADA Frantz never

performed a computer search to determine if Sampson was in custody.

Similarly, he states, ADA Shver took no action to determine Sampson’s

location after she was assigned the case. Accordingly, Dixon asserts:

      Other than a single telephone call to [Dixon’s] State Parole
      Agent [Kelly] Ashton, the Commonwealth did nothing to bring
      Hasan [Sampson] to court from February 1, 2011 when he
      disappeared from the court house until he showed up
      unexpectedly on September 10, 2012.

Id. at 27. Dixon contends “the Commonwealth must prove that it acted in

due diligence in prosecuting the second case in order to receive the benefit

of the run date commencing from the filing of the third case.” Dixon’s Brief

at 19 (emphasis supplied).     Because the Commonwealth failed to do so,

Dixon argues the trial court erred in denying his Rule 600 motion.

      The trial court, however, concluded the Commonwealth did not act

intentionally to circumvent Rule 600(G), but rather, “exercised due diligence

in bringing charges against [Dixon.]”    Findings of Fact and Conclusions of

Law, 3/31/2014, at 2.     The court found the Commonwealth re-filed the

assault charges on two separate occasions, and at each trial listing, issued a

subpoena for Sampson’s appearance.       Id.   However, “through no fault of

[its] own, the complaining witness [] failed to appear.” Id. Therefore, the

trial court denied Dixon’s Rule 600 motion.

      Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we find no abuse of discretion on the part of the trial

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court. Dixon’s primary contention is that time began running for Rule 600

purposes in February of 2011. Indeed, he emphasizes the Commonwealth

did nothing from February 1, 2011, until September 10, 2012, to ensure

Sampson would appear for trial. Dixon’s Brief at 27. We find, however, that

Dixon’s Rule 600 time commenced on December 20, 2012, when the

Commonwealth re-filed the assault charges for the third time.8

       In Commonwealth v. Meadius, 870 A.2d 802 (Pa. 2005) the

Pennsylvania Supreme Court considered the same question presented

herein: When an initial complaint is withdrawn by the Commonwealth, and

a second complaint is filed listing identical charges, must the Commonwealth

bring the defendant to trial 365 days from the first or second filing? Id. at

803.     In that case, the Commonwealth withdrew charges against the

defendant after several continuances were granted at the Commonwealth’s

request, and “the district justice stated that he would dismiss the case if the

Commonwealth did not withdraw the charges.”9 Id. The Commownealth re-

filed the same charges several months later, and after the expiration of 365

days from the filing of the first complaint, the defendant moved to dismiss
____________________________________________


8
  We emphasize Dixon does not claim that his prosecution of the Section
6105 charge was violative of his Rule 600 rights.
9
  Specifically, at the first listing for the preliminary hearing, the prosecuting
attorney was scheduled to attend a continuing legal education class. At the
second hearing, a month later, a Commonwealth witness failed to appear.
Finally, at the third listing, two Commonwealth witnesses were unavailable.
Id. at 803.



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the charges based on a violation of Rule 600.            The trial court found the

Commonwealth did not proceed with due diligence and granted the

defendant’s motion to dismiss.

      On appeal, a panel of this Court reversed the trial court’s decision.

However, the Supreme Count subsequently reversed the panel’s ruling,

concluding the trial court’s decision was not an abuse of discretion.

Specifically, the Supreme Court held the Commonwealth may not obtain the

benefit of the re-filing of a complaint when either (1) “the re-filing is

intended to evade the rule’s time limits[;]” or (2) “the serial filing is brought

about because the prosecution does not exercise due diligence.” Id. at 808.

Because     the   record   supported    the     trial   court’s   finding   that   the

Commonwealth failed to proceed with due diligence in prosecuting the first

complaint, the Meadius Court concluded the trial court did not abuse its

discretion in granting the defendant’s motion to dismiss.

      Subsequently, in Commonwealth v. Peterson, 19 A.3d 1131 (Pa.

Super. 2011) (en banc), aff’d, 44 A.3d 655 (Pa. 2012), an en banc panel of

this Court considered the question left unanswered in Meadius, that is,

“whether the Commonwealth, under Rule 600, must exercise due diligence

in re-filing a second complaint.”        Id. at 1139.         The Peterson Court

emphasized, “a Rule 600 analysis pertains to the Commonwealth’s actions

during a pending action and not after the court has dismissed a charge or

charges.”    Id. (emphasis added). Accordingly, the Court held the delay

between the dismissal of the first complaint and the re-filing of the second

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complaint “is not within the parameters of Rule 600 since no complaint is

pending during this period, and, on its face, the language of Rule 600 is

inapplicable.”    Id.   The Peterson Court outlined the relevant analysis as

follows:

             In sum, when a trial court is faced with multiple identical
       criminal complaints, it must first determine whether the
       Commonwealth intended to evade Rule 600’s timeliness
       requirements by withdrawing or having nolle prossed the
       charges. If the prosecution attempted to circumvent Rule 600,
       then the mechanical run date starts from the filing of the initial
       complaint, and the time between the dismissal of one complaint
       and the re-filing of the second complaint is counted against the
       Commonwealth.       However, where the prosecution has not
       attempted to end run around the rule, and a competent
       authority properly dismissed the case,[10] the court must next
       decide if the Commonwealth was duly diligent in its prosecution
       of the matter. Where the prosecution was diligent, the inquiry
       ends and the appropriate run date for purposes of Rule 600
       begins when the Commonwealth files the subsequent complaint.

Id. at 1141.

       In the present case, the trial court found the Commonwealth “issued

subpoenas for the complainant on all the trial dates in question, but

[Sampson] failed to appear for reasons unattributable to the Prosecution.”

Findings of Fact and Conclusions of Law, 3/32/2014, at 2. Indeed, even at

the February 1, 2011, listing, when Sampson was in the courthouse, he
____________________________________________


10
   We note that, here, the charges were withdrawn by the Commonwealth,
and not dismissed by “a competent authority” as in Peterson.            Id.
However, we find that distinction irrelevant since there is no evidence to
dispute the trial court’s conclusion that the Commonwealth did not act
“intentionally to circumvent Rule 600(G).” Findings of Fact and Conclusions
of Law, 3/31/2014, at 2.



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“didn’t come willingly,” but rather was “brought in by the detectives.” N.T.,

3/5/2014, at 32-33.        Shortly thereafter, the Commonwealth withdrew the

assault charges.        Although the Commonwealth re-filed the charges in

February or March 2011, it withdrew them again on March 30, 2011.

       ADA Frantz testified that he contacted Sampson’s parole officer after

the February 1, 2011, listing from which Sampson absconded.             N.T.,

3/5/2014, at 38-40.        He knew Sampson was going to be “picked up” by

State Parole, and asked Sampson’s parole officer to let him know when that

happened so the Commonwealth could re-file the assault charges.       Id. at

40-41. ADA Frantz testified he had no recollection of Ashton ever notifying

him that Sampson was in custody.11 Id. at 41.

       We agree with the trial court that the Commonwealth acted with due

diligence while the charges were pending against Dixon. ADA Frantz issued

subpoenas directing Sampson to appear in court, and when he did not do so,

the prosecutor sent detectives to bring him in.     However, after Sampson

expressed to ADA Franz that he did not want to testify, and fled the

courthouse, ADA Franz withdrew the assault charges. Accordingly, because

we find the trial court did not abuse its discretion in determining the

Commonwealth acted with due diligence while the assault charges were

pending against Dixon, any purported lack of diligence on the part of the

____________________________________________


11
  Indeed, ADA Frantz explained that if he had known Sampson was in state
custody, he would have “prepared a Writ to bring [Sampson] in.” Id. at 48.



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Commonwealth during the time when the charges were withdrawn but

before they were re-filed, is irrelevant for Rule 600 purposes.   Peterson,

supra, 19 A.3d at 1139.

       Because Dixon’s argument focuses solely on the time period during

which no charges were pending against him, we find he is entitled to no

relief.12

       Judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




____________________________________________


12
   We note Dixon does not contend the Commonwealth failed to diligently
prosecute his case after re-filing the assault charges on December 20, 2012.
Indeed, a review of the docket reveals most of the continuances from that
time until his June 2, 2014, jury trial, were the result of defense requests,
Dixon not being brought down from prison, or Dixon’s pending Rule 600
motion.



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