J-S06019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDRE F. COLON                             :
                                               :
                       Appellant               :   No. 2161 EDA 2016

              Appeal from the Judgment of Sentence June 8, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006374-2014

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                   FILED MAY 02, 2019

        Appellant, Andre F. Colon, appeals from the June 8, 2016 Judgment of

Sentence entered in the Court of Common Pleas of Philadelphia County

following his non-jury conviction of Forgery, Theft By Unlawful Taking, and

Receiving Stolen Property.1 He challenges, inter alia, the denial of his Rule

600 Motion and the sufficiency of the evidence.          After careful review, we

affirm.

        In its Opinion, the trial court fully and accurately set forth the relevant

facts underlying the offenses, and we need not restate them in their entirety.

See Trial Ct. Op., 9/6/17, at 2-10. We do, however, detail the procedural

history, as it is relevant to Appellant’s Rule 600 issues on appeal. On May 22,

2013, the Commonwealth filed a Criminal Complaint alleging that Appellant

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1   18 Pa.C.S. §§ 4101; 3921; and 3925, respectively.
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had used counterfeit currency to make purchases at a Philadelphia Walmart.

On November 2, 2013, police arrested Appellant and charged him with the

above crimes.2

       On January 13, 2014, the court held Appellant’s initial preliminary

hearing.    At the hearing, the Commonwealth presented the testimony of

Walmart’s asset protection manager, who testified that the currency Appellant

used appeared counterfeit.          The court dismissed the charges for lack of

evidence that the currency was counterfeit.

       The Commonwealth re-filed the Criminal Complaint on February 26,

2014. The trial court scheduled Appellant’s preliminary hearing for March 25,

2014, and the Commonwealth properly served Appellant with notice of the

new preliminary hearing. However, Appellant failed to appear for that hearing.

The court rescheduled the preliminary hearing for May 5, 2014.

       On May 5, 2014, Appellant appeared at the preliminary hearing.

However, the Commonwealth requested a continuance to obtain the notes of

testimony from the January 13, 2014 hearing.           The court continued the

hearing to June 2, 2014.

       On June 2, 2014, following the preliminary hearing, the court held the

charges over for trial. The court formally arraigned Appellant on June 23,

2014, and continued the case to July 22, 2014, for a pre-trial conference.

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2 The Commonwealth also charged Appellant with Conspiracy and Securing
Execution of Documents by Deception. See 18 Pa.C.S. §§ 903 and 4114. The
trial court acquitted Appellant of those charges.

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       On July 22, 2014, Appellant refused the Commonwealth’s plea offer and

the court listed the case for a waiver trial on September 26, 2014. The docket

indicates that the court ruled that the time from July 22, 2014, to September

26, 2014—a total of 66 days—was excludable from the “speedy trial”

calculation pursuant to Pa.R.Crim.P. 600.3

       On September 26, 2014, the trial court granted the Commonwealth’s

Motion for Continuance of Appellant’s trial as the Commonwealth’s eyewitness

failed to appear, despite the Commonwealth having subpoenaed him. The

court ruled the time excludable from the Rule 600 calculation and scheduled

Appellant’s next court date for November 21, 2014.

       On November 21, 2014, the Commonwealth again moved for a

continuance because: (1) the Commonwealth’s Secret Service agent witness

was unable to testify because he was out of the country; and (2) the

Commonwealth had not completed discovery.             The court granted a

continuance to January 16, 2015. The docket does not indicate whether the

court found the time excludable from the Rule 600 calculation.

       On January 16, 2015, the court again continued the case at the

Commonwealth’s request.          The Commonwealth requested the continuance

because it had still not completed discovery. In particular, the Commonwealth

represented to the court that the Secret Service possessed a videotape of the

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3 Rule 600 requires Appellant to be tried within one year of the date of the
refiled complaint, absent any time not attributable to the Commonwealth.
Pa.R.Crim.P. 600(A), (C), cmt.

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transactions at issue, but had been unable to locate it prior to the court’s trial

listings. The docket indicates that the court listed the case for a status hearing

and Rule 600 Motion on January 30, 2015.4 The court relisted Appellant’s

waiver trial for March 26, 2015.

       On February 26, 2015, Appellant filed a Motion to Dismiss Pursuant to

Pa.R.Crim.P. 600.       On March 24, 2015, Appellant filed an Application to

Dismiss Informations.5 On March 25, 2015, he filed a Motion in Limine to

Exclude Evidence. On March 26, 2015, the court scheduled the motions for a

hearing and continued Appellant’s trial to June 25, 2015.

       The court held the hearing on April 8, 2015, and on April 14, 2015, the

trial court denied Appellant’s Rule 600 Motion and Motion in Limine. The court

listed Appellant’s trial for June 25, 2015.

       On June 25, 2015, the trial court again continued Appellant’s waiver trial

to accommodate a protracted trial on its calendar.         The court scheduled

Appellant’s trial for October 25, 2015.




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4The docket does not contain any notation that Appellant had filed a Rule 600
Motion. At the status hearing, the court noted that discovery was complete
and that the case was not ripe for a Rule 600 Motion.

5 In the Application to Dismiss, Appellant claimed that the Commonwealth
violated his constitutional right to due process and irreparably prejudiced him
by waiting 164 days from the date it applied for an arrest warrant to actually
arrest him—244 days after the last of his alleged crimes. It does not appear
that the trial court disposed of this motion.

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      On October 2, 2015, the court granted Appellant’s request to continue

trial. The court listed Appellant’s trial for January 14, 2016, but on December

29, 2015, continued it again to February 18, 2016.

      On February 18, 2016, following a one-day waiver trial, the court

convicted Appellant of the above crimes. The court deferred sentencing for

the preparation of a Pre-Sentence Investigation Report.

      On June 8, 2016, the trial court sentenced Appellant to an aggregate

term of eight years’ reporting probation for his Forgery and Theft convictions.

Appellant’s Receiving Stolen Property conviction merged with his Theft

conviction for sentencing purposes. The court further ordered Appellant to

pay $3,060 in restitution.    Appellant did not file a Post-Sentence Motion

following entry of his Judgment of Sentence.

      This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following three issues on appeal:

      1. Was not the evidence insufficient as a matter of law to sustain
         [Appellant’s] convictions for [F]orgery, [T]heft [by U]nlawful
         [T]aking[,] and [R]eceiving [S]tolen [P]roperty, where the
         evidence presented by the Commonwealth failed to establish
         that the counterfeit currency produced at trial was ever
         possessed, used, uttered[,] or exchanged for goods at Walmart
         by [Appellant]?

      2. Did not the lower court err and abuse its discretion in denying
         [Appellant’s] Motion to Dismiss Pursuant to Pa.R.Crim.P. 600
         where the Commonwealth failed to exercise due diligence by
         not bringing [Appellant] to trial within 365 days?

      3. Did not the lower court err and abuse its discretion when it
         allowed the Commonwealth to argue in closing that

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          [Appellant’s] pre-arrest silence was evidence of guilt in
          violation of the constitutional protections of the Fifth
          Amendment to the United States Constitution and Article I,
          Section 9 of the Pennsylvania Constitution?

Appellant’s Brief at 4.

       In his first issue, Appellant challenges the sufficiency of the evidence in

support of each of his conviction, averring that the Commonwealth’s evidence

was insufficient to prove that he was the source of the counterfeit bills used

at Walmart. Appellant’s Brief at 23-24.

       Before we address the merits of this claim, we first consider whether

Appellant has preserved it for our review.

       First, we observe that Appellant has improperly combined his challenge

to the sufficiency of the Commonwealth’s evidence in support of three

separate convictions into one issue and argument section in his Brief.

Although Appellant has included the elements of each of those offenses in his

Brief, he has failed to present separate arguments as to how the

Commonwealth’s evidence was deficient in establishing the requisite

elements. Moreover, Appellant has not developed his argument with citation

to relevant case law that supports his specific claims. 6 Appellant’s failure to

develop his issues separately in his Brief have hampered this Court’s ability to

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6 Appellant has cited to Commonwealth v. Hargrave, 745 A.2d 20 (Pa.
Super. 2000), and Commonwealth v. McCrea, 454 A.2d 132 (Pa. Super.
1982), for general propositions related to the limits of circumstantial evidence
in proving guilt beyond a reasonable doubt in cases where the defendants had
been convicted of Burglary, Possessing Instruments of Crime, and Theft.



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conduct meaningful appellate review. Thus, we conclude that Appellant has

waived his sufficiency of evidence claims by failing to develop them in his

appellate Brief.7 See, e.g., Commonwealth v. Gibbs, 981 A.2d 274, 281

(Pa. Super. 2009) (concluding claim of insufficient evidence for multiple

convictions was waived because it was, inter alia, underdeveloped, and the

appellant failed to argue which specific element of the crime was not met);

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (citations

omitted) (where defects in a brief “impede our ability to conduct meaningful

appellate review, we may dismiss the appeal entirely or find certain issues to

be waived.”); see also Pa.R.A.P. 2101 (providing that where the defects in

an appellant’s brief are substantial, this Court may quash or dismiss the

appeal).

       In his next issue, Appellant claims the trial court abused its discretion in

denying his Rule 600 Motion.                   Appellant argues that, because the

Commonwealth filed its initial Criminal Complaint against him on May 22,

2013, the date by which the Commonwealth had to bring Appellant to trial,

was May 22, 2014. Appellant’s Brief at 27-28. He acknowledges that his prior

counsel conceded that 132 days were excludable time, and concludes that
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7 Moreover, following our review, we conclude that Appellant’s claim is actually
in the nature of a challenge to the weight of the evidence. A defendant must
preserve a challenge to the weight of the evidence by filing a Post-Sentence
Motion or raising the claim at any time before sentencing, which Appellant did
not do. See Pa.R.Crim.P. 607(A). In any event, this Court will not reweigh
the evidence. See Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super.
2011) (reiterating that it is not the position of this court to “reweigh the
evidence or substitute our own judgment for that of the fact finder”).

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Appellant’s adjusted run date, therefore, was October 1, 2014. Id. at 28. In

support of his claim that the court should have made its Rule 600

determination based on the May 22, 2014 mechanical run date, Appellant

argues that the Commonwealth failed to exercise due diligence and that the

dismissal of the initial Criminal Complaint was the result of factors entirely

within the Commonwealth’s control. Id. at 30-31. Appellant concludes that,

even factoring in all of the time he conceded, the fourth trial date was still 176

days past the adjusted run date.8 Id. at 36.

       We review a trial court’s decision to deny a defendant’s Rule 600 Motion

for an abuse of discretion. Commonwealth v. Holt, 175 A.3d 1014, 1018

(Pa. Super. 2017).

       Rule 600 provides in relevant part: “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.”                Pa.R.Crim.P.

600(A)(2)(a). The Rule further states:

       (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.

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8  Appellant never filed a subsequent Rule 600 motion after the trial court
entered its order on April 14, 2015, and did not argue, pursuant to
Pa.R.Crim.P. 600 before the trial court or this Court, about the period of time
between the entry of the order on April 14, 2015, and the commencement of
trial on February 18, 2016. Accordingly, we make no determinations about
this passage of time that occurred after the court denied his Rule Motion.

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Pa.R.Crim.P. 600(C)(1).      Simply, only periods of delay caused by the

Commonwealth’s failure to exercise due diligence are included in the

computation of time within which trial must commence.

      Relevantly, Rule 600 further provides that,

      In cases in which the Commonwealth files a criminal complaint,
      withdraws that complaint, and files a second complaint, the
      Commonwealth will be afforded the benefit of the date of the filing
      of the second complaint for purposes of calculating the time for
      trial when the withdrawal and re-filing of charges are necessitated
      by factors beyond its control, the Commonwealth has exercised
      due diligence, and the refiling is not an attempt to circumvent the
      time limitation of Rule 600.

Pa.R.Crim.P. 600 cmt (citing Commonwealth v. Meadius, 870 A.2d 802,

804 (Pa. 2005).

      To determine whether dismissal is required for a violation of Rule 600,

“a court must first calculate the ‘mechanical run date,’ which is 365 days after

the   complaint   was   filed,”   or,   under   certain   circumstances,   refiled.

Commonwealth v. Goldman, 70 A.3d 874, 879-880 (Pa. Super. 2013). See

also Commonwealth v. Murray, 879 A.2d 309, 314 (Pa. Super. 2005);

Meadius, 870 A.2d at 804 (Pa. Super. 2005). Thereafter, an adjusted Rule

600 run date is computed, and the defendant is entitled to discharge under

Rule 600 only where trial started after the adjusted run date. Goldman, 70

A.3d at 879 (noting that 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.”).

The adjusted run date is calculated by adding to the mechanical run date both

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excludable and excusable delay. Id. Excludable delay is delay caused by the

defendant or his lawyer. Id. Excusable delay encompasses a wide variety of

situations   where   the   postponement     of   trial   was   outside   of   the

Commonwealth's control. Commonwealth v. Armstrong, 74 A.3d 228, 236

(Pa. Super. 2013).    “Excusable delay is delay that occurs as a result of

circumstances beyond the Commonwealth's control and despite its due

diligence.” Goldman, 70 A.3d 874, 879.

      “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.” Armstrong, 74 A.3d at 236 (citation omitted).

      First, we disagree with Appellant’s premise that May 22, 2013, is the

date from which Appellant’s mechanical run date is calculated. Although the

Commonwealth filed its initial Criminal Complaint on May 22, 2013, the court

dismissed the Complaint for lack of evidence. Subsequently, on February 26,

2014, the Commonwealth refiled the Complaint.            We, thus, calculate the

mechanical run date from the date the Commonwealth refiled the Complaint.

See Pa.R.Crim.P. 600 cmt.       Accordingly, the mechanical run date was

February 26, 2015, 365 days after the refiling of the Complaint.

      From February 26, 2014, until the filing of the Rule 600 Motion on

February 26, 2015, 365 days elapsed, and Appellant’s trial had not yet

commenced. We, thus, must next consider whether the trial court properly

concluded that the Commonwealth’s failure to bring Appellant to trial within

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365 days was not the result of a lack of due diligence on the Commonwealth’s

part.

        Following the refiling of the Criminal Complaint on February 26, 2014,

the court scheduled a preliminary hearing for March 25, 2014. Appellant failed

to appear at the hearing.       The evidence of record establishes that the

Commonwealth sent notice of the hearing to Appellant’s counsel and Appellant

conceded at the hearing on his Rule 600 Motion that service had been proper.

Thus, the trial court properly excluded the 41 days between February 26,

2014, and March 25, 2014, from the Rule 600 calculation.

        The court held Appellant’s preliminary hearing on the refiled Complaint

on June 2, 2014, and, that day, the court listed Appellant’s case for trial on

September 26, 2014.       Appellant concedes in his brief that the trial court

properly excluded the 116 days between June 2, 2014, and September 26,

2014, from the Rule 600 calculation. See Appellant’s Brief at 13.

        On September 26, 2014, the court continued Appellant’s trial when the

Commonwealth’s       eyewitness    failed   to   appear   notwithstanding   the

Commonwealth’s due diligence in issuing a subpoena for his appearance. The

court relisted the case a November 21, 2014 trial date.           Because the

Commonwealth had exercised due diligence, the court properly excused the

56 days between September 26, 2014, and November 21, 2014 from the Rule

600 calculation.

        On November 21, 2014, the court again continued Appellant’s trial when

the Commonwealth’s Secret Service agent witness was unavailable. Because

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the Commonwealth has no control over Secret Service agents’ schedules, the

Commonwealth cannot be faulted for this witness’s unavailability.           See

Commonwealth v. Wendel, 165 A.3d 952, 957 (Pa. Super. 2017) (“the

Commonwealth cannot be held to be acting without due diligence when a

witness becomes unavailable due to circumstances beyond its control”)

(citation omitted). In addition, on that date, and the subsequent January 16,

2015 trial date, the parties had not completed discovery because the Secret

Service, and not the Commonwealth, had possession of a videotape of the

criminal transactions. Thus, the trial court continued Appellant’s trial to March

26, 2015. Appellant filed his Rule 600 Motion on February 26, 2015. The trial

court properly excluded the 97 days between November 21, 2014, and

February 26, 2015, from the Rule 600 calculation.

       Appellant filed the Rule 600 Motion 365 days after the Commonwealth

refiled the Complaint, rather than at the time his case actually came to trial.9

Accordingly, we analyze his Rule 600 claim considering only the time-period

between the refiling of the Complaint and the filing of the Rule 600 Motion.

Following our review, we find that the trial court properly excluded or excused

from the Rule 600 calculation 310 days as not caused by the Commonwealth’s

lack of due diligence. The record supports this conclusion. Therefore, the

court properly denied Appellant’s Rule 600 Motion.



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9 We emphasize that Appellant did not file an additional Rule 600 Motion at
the commencement of his February 18, 2016 waiver trial.

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      In his final issue, Appellant challenges the trial court’s decision not to

sustain his objection to the following comments the prosecutor made during

summation:

      [W]hat does a normal person do when the Secret Service calls
      them on their cell phone? Do they hang up? When the United
      States Secret Service, the people that protect the President and
      the U.S. Mint, and investigate counterfeit money[,] get on the
      phone, that’s somebody you want to talk to, isn’t it? That’s not
      what [Appellant] did. . . When a special agent from Washington,
      D.C. calls you and says, [i]s this [Appellant], and you hang up,
      you know that there’s a reason why the Secret Services is calling
      you and knows your name. So you want to talk about he has no
      idea of what is going on? I think that’s preposterous.

N.T., 2/18/17, at 128-130.

      Appellant alleges that the Commonwealth’s comments were a “blatant

and explicit use of [Appellant’s] pre-arrest silence to [imply] guilt” and was,

therefore, a violation of his constitutional right against self-incrimination.

Appellant’s Brief at 39. He avers that because the Commonwealth had no

evidence to connect Appellant to the counterfeit currency used at Walmart,

and the “foundation for the Commonwealth’s argument” was Appellant’s

consciousness of guilt, the court’s failure to sustain his objection was not

harmless error. Id. at 40.

      A prosecutor’s comments that are based on the evidence or reasonable

inferences therefrom are not improper. Commonwealth v. Cash, 137 A.3d

1262, 1273 (Pa. 2016).       Because a prosecutor may fairly respond to

comments made by defense counsel in her closing, a court must consider the

prosecutor’s   comments      in   light   of   defense    counsel’s    conduct.


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Commonwealth v. Miller, 172 A.3d 632, 644 (Pa. Super. 2017), appeal

denied, 183 A.3d 970 (Pa. 2018). Even if improper, a prosecutor’s comments

will constitute reversible error “only where their unavoidable effect is to

prejudice the jury, forming in their minds a fixed bias and hostility toward the

defendant such that they could not weigh the evidence objectively and reach

a fair verdict.” Cash, 137 A.3d at 1273 (citation omitted). Moreover, when

the trial court is sitting as the finder of fact, the potential prejudice to a

defendant from intemperate prosecutorial remarks made in closing is lessened

or eliminated. Commonwealth v. Stantz, 509 A.2d 351, 356 (Pa. Super.

1986).

      In the instant case, during closing arguments, and in response to

Appellant’s counsel’s argument that Appellant did not know he was under

investigation for having committed a crime, the prosecutor made the

comments set forth above.

      Our review of the record indicates that the Commonwealth statement,

based both on the evidence presented at Appellant’s waiver trial, or

reasonable inferences therefrom, and made in response to an argument put

forth by Appellant in his closing statement, constituted a permissible reference

to Appellant’s pre-arrest silence. See Commonwealth v. Molina, 104 A.3d

430, 451 (Pa. 2014) (articulating that “the right against self-incrimination

prohibits use of a defendant’s pre-arrest silence as substantive evidence of

guilt, unless it falls within an exception such as impeachment of a testifying




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defendant or fair response to an argument of the defense”) (emphasis

added).10 Accordingly, Appellant is not entitled to relief on this claim.

       Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/19




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10 In addition, following Appellant’s objection, the trial court aptly noted that
“[t]his is not a jury. As a judge, I can delineate his argument.” N.T. at 129.
Rather, given the trial court’s “knowledge, experience, and training,” it
understood that the Commonwealth had stated that a Secret Service agent
had called Appellant to refute Appellant’s claim that he did not know he under
investigation in this case. See Commonwealth v. Harvey, 526 A.2d 330,
333 (Pa. 1987) (explaining the presumption that a trial court’s “knowledge,
experience[,] and training will enable him to disregard inadmissible evidence
and other improper elements”).

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