J. A30033/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
ROBERT DAVID REINHART,                   :          No. 498 WDA 2017
                                         :
                         Appellant       :


           Appeal from the Judgment of Sentence, March 9, 2017,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0000724-2016


BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 21, 2018

      Robert David Reinhart appeals from the March 9, 2017 judgment of

sentence entered by the Court of Common Pleas of Allegheny County. After

careful review, we remand to the trial court for a hearing pursuant to

Pa.R.Crim.P. 600.

      The Commonwealth charged appellant with the following offenses: DUI

highest rate of alcohol, DUI general impairment, habitual offenders, driving

while BAC 0.02 or greater while license is suspended, driving without a license,

operating a snowmobile/ATV on streets and highways, unlawful operation,

unlawful operation of snowmobile/ATV under influence, proof of liability

insurance required to be produced and displayed, driving an unregistered

vehicle, improper display of registration plate, failure to signal, giving false

information, investigation by officer/duty of operator, fleeing or attempting to
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elude a police officer, and failure to yield to emergency vehicle.1        At the

preliminary hearing on January 26, 2016, the following charges were

dismissed: driving an unregistered vehicle, failure to signal, failure to yield to

emergency vehicle, fleeing or attempting to elude a police officer, giving false

information, improper display of registration plate, and investigation by

officer/duty of operator. All of the remaining charges were held over for trial.

      On April 5, 2016, appellant filed an omnibus pretrial motion in which he

sought to suppress evidence. A suppression hearing and trial were originally

scheduled for June 7, 2016. On May 17, 2016, the Commonwealth filed a

motion for continuance, which the trial court granted.          The suppression

hearing and trial were rescheduled for September 8, 2016.

      On September 8, 2016, the trial court denied appellant’s omnibus

pretrial motion following a suppression hearing, and immediately called the

case for trial.   The Commonwealth, having dismissed its only witness,

Elizabeth Police Department Officer Garret Kimmel, at the conclusion of his

suppression hearing testimony, orally moved for a continuance, which the trial

court granted.    The trial was rescheduled for December 12, 2016.             On

November 10, 2016, appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P. 600, which the trial court denied on December 12, 2016,

following a hearing immediately preceding trial.


1 75 Pa.C.S.A. §§ 3802(c), 3802(a)(1), 6503.1, 1543(b)(1.1)(i), 1501(a),
7721(a), 7711.1(a), 7726(a)(3), 7730(b), 1301(a), 1332(a), 3335(a), 3748,
6308(a), 3733(a), and 3325(a), respectively.


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      At the conclusion of the bench trial on December 12, 2016, the trial

court convicted appellant of DUI highest rate, DUI general impairment, driving

while BAC 0.02 or greater while license is suspended, driving without a license,

operating a snowmobile/ATV on streets and highways, unlawful operation of

unregistered snowmobile/ATV, and unlawful operation of snowmobile/ATV

under influence.   The trial court acquitted appellant of proof of insurance

required to be produced and displayed.       The Commonwealth withdrew the

habitual offenders charge.     On March 9, 2017, the trial court sentenced

appellant to one year less one day to two years less two days’ imprisonment.

      Appellant filed a notice of appeal to this court on March 30, 2017. 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 complied. The trial

court filed its opinion pursuant to Pa.R.A.P. 1925(a) on August 3, 2017.

      Appellant raises the following issues for our review:

            I.     Did the lower court err in refusing to grant
                   [appellant’s] Rule 600 motion when all of the
                   delay in this case was attributable to the
                   Commonwealth and trial was not commenced
                   until 62 days beyond the mechanical run date?

            II.    Did the lower court err in refusing to suppress
                   all evidence, including the identification of
                   [appellant] and blood evidence, following
                   Officer Kimmel’s illegal search of the curtilage at
                   914 15th Street, Elizabeth, Pennsylvania?

Appellant’s brief at 5 (capitalization omitted).




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      In his first issue for our review, appellant avers that the Commonwealth

violated his constitutional right to a speedy trial pursuant to Pennsylvania Rule

of Criminal Procedure 600.

            “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
            duty to object when his trial is scheduled beyond the


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            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).

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

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

      In the instant appeal, the Elizabeth Borough Police Department filed a

criminal complaint against appellant on October 11, 2015.          Pursuant to

Rule 600, the Commonwealth was required to commence trial on or before

October 11, 2016. The Commonwealth originally listed this case for trial on

June 7, 2016. On May 17, 2016, the Commonwealth requested a continuance

due to the unavailability of Officer Kimmel.      The trial court granted the

Commonwealth’s request, rescheduling the trial for September 8, 2016;

however, it failed to indicate in its order whether the period of delay was

included or excluded for the purpose of Rule 600 calculations as required by

Rule 600(C)(3)(a)(2).

      As noted above, the trial court called the case to trial on September 8,

2016, immediately upon the conclusion of the suppression hearing.           The

Commonwealth, having dismissed Officer Kimmel at the conclusion of his

suppression hearing testimony, indicated it would not be able to proceed that

day with trial, and the trial court responded by stating, “Pick a date, whatever

you want.” (Notes of testimony, 9/8/16 at 67.) If appellant did not expressly

waive his speedy trial rights, then the continuance is charged to the


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Commonwealth.       Trial was rescheduled for December 12, 2016.             On

November 10, 2016, appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P. 600, which the trial court denied on December 12, 2016,

following a purported hearing immediately preceding trial.

      Regrettably, this court is unable to review appellant’s Rule 600 issue

due to a total lack of any evidence of record from the hearing on the motion

to dismiss. Although the Commonwealth filed a brief in response to the motion

setting forth its due diligence, no testimony is of record on the issue of

diligence.   It is the Commonwealth’s burden to establish due diligence in

bringing appellant to trial within the required time pursuant to Rule 600. See

Commonwealth v. Jackson, 852 A.2d 315, 318 (Pa.Super. 2004), appeal

denied, 877 A.2d 460 (Pa. 2005).

      Additionally, although the trial court’s scheduling clerk made extensive

representations to the court about scheduling difficulties with this case, there

is absolutely no record testimony on this issue. A defendant’s request for a

jury trial does not excuse the Commonwealth’s duty to bring the defendant to

trial within the Rule 600 time period. The trial court had no evidentiary basis

for denying the motion to dismiss. In its Rule 1925(a) opinion, the trial court

stated that there were no facts which needed to be decided.         (Trial court

opinion, 8/3/17 at 8.) The trial court further stated that “hearings are held

when there are facts to be decided,” and that a “hearing—as contemplated by

the rule—was not held.” (Id.)



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     Rule 600 states, in relevant part:

           When a defendant has not been brought to trial within
           the time periods set forth in paragraph (A), at any
           time before trial, the defendant’s attorney, or the
           defendant if unrepresented, may file a written motion
           requesting that the charges be dismissed with
           prejudice on the ground that this rule has been
           violated. A copy of the motion shall be served on the
           attorney for the Commonwealth concurrently with
           filing. The judge shall conduct a hearing on the
           motion.

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

     Rather than conduct such a hearing, the court accused defense counsel

of gamesmanship, not wanting to “play fair,” and trying to gain unfair

advantage. Clearly, appellant was brought to trial beyond the mechanical run

date, and this court has no evidence as to why.

     We will therefore retain jurisdiction and remand to the trial court to

conduct a proper Rule 600 hearing and provide findings to this court within

60 days of the filing of this memorandum.

     Case remanded. Jurisdiction retained.




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