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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
ROBERT COVERT,                           :         No. 1517 MDA 2019
                                         :
                         Appellant       :


        Appeal from the Judgment of Sentence Entered August 29, 2019,
              in the Court of Common Pleas of Huntingdon County
                Criminal Division at No. CP-31-CR-0000514-2017


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 08, 2020

        Robert Covert appeals from the August 29, 2019 judgment of sentence

entered by the Court of Common Pleas of Huntingdon County following his

conviction of theft by unlawful taking.1 The trial court sentenced appellant to

18-36 months’ incarceration, with credit for time served, to be followed by

three years’ probation. After careful review, we affirm.

        The following procedural history can be gleaned from the record: On

September 1, 2017, the Commonwealth charged appellant with burglary,

criminal trespass, theft by unlawful taking, receiving stolen property, and

criminal mischief. The trial court scheduled jury selection to commence on

July 2, 2018. On July 2, 2018, appellant requested a continuance, and the




1   18 Pa.C.S.A. § 3921(a).
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trial court rescheduled jury selection for November 5, 2018. (See notes of

testimony, 7/2/18 at unnumbered page 2.)

      On November 5, 2018, appellant failed to appear for jury selection. The

trial court issued a bench warrant as a result of appellant’s failure to appear.

On February 26, 2019, appellant filed a motion for dismissal pursuant to

Pa.R.Crim.P. 600(D)(1).2 Following a hearing held on May 9, 2019, the trial

court denied appellant’s Rule 600 motion on May 21, 2019. Appellant filed a

second Rule 600 motion on August 7, 2019,3 which the trial court denied on

August 8, 2019.

      On August 19, 2019, a jury convicted appellant of one count of theft by

unlawful taking. The trial court imposed sentence on August 29, 2019. On

September 9, 2019, appellant filed a timely notice of appeal. The trial court

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied.                   On

November 4,    2019,    the   trial   court   filed   an   opinion   pursuant   to

Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Did the trial court err when it denied [appellant’s]
            Pre-Trial Motion to dismiss the above-captioned case

2While appellant’s February 26, 2019 Rule 600 motion was pending, the trial
court appointed Lance T. Marshall, Esq., to represent appellant, replacing
Christopher B. Wencker, Esq.

3 Appellant avers that he filed a second Rule 600 motion “[o]ut of an
abundance of caution[] in order to preserve this issue for appeal.” (Appellant’s
brief at 12 n.1.)


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            pursuant to Pa.R.Crim.[P]. 600(A)(2)(a) on May 21,
            2019 and again on August 8, 2019 when the criminal
            complaint was filed on September 1, 2017 and a jury
            was selected on August 5, 2019?

Appellant’s brief at 6.

            “In evaluating Rule [600] issues, our standard of
            review of a trial court’s decision is whether the trial
            court abused its discretion.” Commonwealth v. Hill,
            [] 736 A.2d 578, 581 ([Pa.] 1999).                 See also
            Commonwealth v. McNear, 852 A.2d 401
            (Pa.Super. 2004). “Judicial discretion requires action
            in conformity with law, upon facts and circumstances
            judicially before the court, after hearing and due
            consideration.” Commonwealth v. Krick, [] 67 A.2d
            746, 749 ([Pa.Super.] 1949). “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.”
            Commonwealth v. Jones, 826 A.2d 900, 907
            (Pa.Super. 2003) (en banc) (citing Commonwealth
            v. Spiewak, [] 617 A.2d 696, 699 n. 4 ([Pa.] 1992)).

            “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.” Hill,
            supra [] at 581; McNear, supra at 404. See also
            Commonwealth v. Jackson, 765 A.2d 389
            (Pa.Super. 2000), appeal denied, [] 793 A.2d 905
            ([Pa.] 2002). “[A]n appellate court must view the
            facts in the light most favorable to the prevailing
            party.” Id. at 392.

            ....

            In assessing a Rule 600 claim, the court must exclude
            from the time for commencement of trial any periods
            during which the defendant was unavailable, including
            any continuances the defendant requested and any
            periods for which he expressly waived his rights under
            Rule 600. Pa.R.Crim.P. 600(C). “A defendant has no


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            duty to object when his trial is scheduled beyond the
            Rule [600] time period so long as he does not indicate
            that he approves of or accepts the delay.”
            Commonwealth v. Taylor, [] 598 A.2d 1000, 1003
            ([Pa.Super.] 1991), appeal denied, [] 613 A.2d 559
            ([Pa.]     1992)     (addressing      Municipal    Court’s
            counterpart to speedy trial rule). If the defense does
            indicate approval or acceptance of the continuance,
            the time associated with the continuance is excludable
            under     Rule     600      as   a    defense     request.
            Commonwealth v. Guldin, [], 463 A.2d 1011, 1014
            ([Pa.] 1983). Significantly, when the defendant signs
            the Commonwealth's motion for postponement and
            registers no objection to the postponement, and the
            motion indicates trial will be scheduled beyond the
            Rule 600 time limit, the signed consent without
            objection can be interpreted as consent to the new
            date and waiver of any Rule 600 claim arising from
            that postponement. Commonwealth v. Walls, [],
            449 A.2d 690, 692 ([Pa.Super.] 1982).              Finally,
            “judicial delay is a justifiable basis for an extension of
            time if the Commonwealth is ready to proceed.”
            Commonwealth v. Wroten, [], 451 A.2d 678, 681
            ([Pa.Super.] 1982).

Commonwealth v. Hunt, 858 A.2d 1234, 1238-1239, 1241 (Pa.Super.

2004) (en banc), appeal denied, 875 A.2d 1073 (Pa. 2005).

      Before we can review the merits of appellant’s Rule 600 claim, we must

first determine whether appellant has waived the issue by failing to appear for

jury selection on November 5, 2018.4         In Commonwealth v. Steltz, 560

A.2d 1390 (Pa. 1988), our supreme court held that a “voluntary absence from


4 “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.”
Pa.R.Crim.P. 600 cmnt., citing Commonwealth v. Kluska, [], 399 A.2d 681
([Pa.] 1979); Commonwealth v. Lamonna, [], 373 A.2d 1355 ([Pa.] 1977).


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a day set for trial within Rule [600] is a waiver of that rule.” Id. at 1391

(emphasis added).     Our supreme court reaffirmed its Steltz holding in

Commonwealth v. Brock, 61 A.3d 1015, 1022 (Pa. 2013). Most recently,

our supreme court in Commonwealth v. Barbour, 189 A.3d 944 (Pa. 2018),

restated the holding in Steltz and reaffirmed that the waiver rule applies “only

where a defendant fails to appear for a trial that complied with the

requirements of Rule 600.” Id. at 960-961. Accordingly, our initial inquiry is

whether appellant’s original trial date of November 5, 2018, complied with

Rule 600.

      Here, appellant’s case was scheduled for jury selection on November 5,

2018—430 days after the Commonwealth filed the complaint in this case on

September 1, 2017. Appellant concedes that a total of 70 days between the

day the complaint was filed and his original date for jury selection are

excludable for the purposes of Rule 600. (Appellant’s brief at 18-19.) Taking

into account the excludable time, the adjusted run-date for appellant’s trial

was November 13, 2018.5 As conceded by appellant, had a jury been selected

on November 5, 2018, “as [] was originally scheduled, [appellant] would have

been within the Rule 600 time limits by a period of [eight] days.” (Appellant’s

brief at 19.) We, therefore, find that appellant, through his voluntary absence




5 Appellant’s adjusted run date was November 10, 2018.             Because
November 10, 2018, fell on a Saturday and the trial court was closed on
November 12, 2018, in observance of Veterans’ Day, November 13, 2018,
represents appellant’s adjusted Rule 600 run date. See 1 Pa.C.S.A. § 1908.


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from the original day set for jury selection within the Rule 600 time-frame,

waives his Rule 600 claim.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/08/2020




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