J-S64007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

G. C.

                            Appellant                 No. 93 WDA 2014


           Appeal from the Judgment of Sentence December 17, 2013
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000449-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                        FILED NOVEMBER 12, 2014

        G.C. appeals his judgment of sentence entered in the Court of

Common Pleas of Cambria County after a jury convicted him of one count of

corruption of minors.1 After review, we affirm.

        G.C. was charged with one count of corruption of minors and two

counts each of indecent assault and endangering the welfare of children

after his daughter, H.C., disclosed that G.C. repeatedly had her remove her

pants and underwear, ostensibly so that G.C. could check to see if she was

wiping properly, and touched her in her vaginal area, rubbing his fingers in a

circular motion. A jury convicted G.C. of one count of corruption of minors

and, on December 17, 2013, the trial court sentenced him to a mandatory

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1
    18 Pa.C.S.A. § 6301(a)(1)(ii).
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term of twenty-five years in prison pursuant to 42 Pa.C.S.A. § 9718.2.2 G.C.

was also found to be a sexually violent predator pursuant to 42 Pa.C.S.A. §

9792 and was directed to comply with the registration provisions of Megan’s

Law IV.

       G.C. did not file post-trial motions. He filed a timely notice of appeal

on January 9, 2014, followed by a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Two Rule 1925(a)

opinions were filed, one by the Honorable Norman A. Krumenacker, III, who

presided over G.C.’s trial, and a second by the Honorable Patrick T. Kiniry,

who ruled on G.C.’s pre-trial motions.

       G.C. raises the following issues for our review:

       1.     Whether the [trial] court erred in denying         [G.C.’s]
              Motion to Dismiss pursuant to Pa.R.Crim.P. 600?

       2.     Whether the trial court erred in denying [G.C.’s] Motion
              to Correct Amended Information?

       3.     Whether the trial court erred in “spotlighting” the jury
              instruction relative to [Standard Jury Instruction] 4.13(B)
              (Conviction Based on Victim’s Uncorroborated Testimony in
              Sexual Offenses) during jury selection?

Brief of Appellant, at 6.




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2
   Section 9718.2 imposes a mandatory twenty-five-year sentence on
offenders who have a prior conviction for certain offenses enumerated in 42
Pa.C.S.A. § 9799.14. G.C. was convicted in 1993 of multiple such offenses
in relation to the sexual abuse of a daughter from a previous marriage.



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      G.C. first claims that Judge Kiniry erred in failing to grant his Rule 600

motion to dismiss. G.C. claims that he did not agree to several continuances

requested by his trial counsel and, accordingly, the time attributable to those

continuances should not be deemed excludable for purposes of Rule 600.

We disagree.

      We begin by noting that our standard of review with regard to claims

brought under Rule 600 is whether the trial court committed an abuse of

discretion.    Commonwealth v. Montgomery, 861 A.2d 304, 309 (Pa.

Super. 2004).

      The term “discretion” imports the exercise of judgment, wisdom
      and skill so as to reach a dispassionate conclusion, within the
      framework of the law, and is not exercised for the purpose of
      giving effect to the will of the judge.          Discretion must be
      exercised on the foundation of reason, as opposed to prejudice,
      personal motivations, caprice or arbitrary actions. Discretion is
      abused when the course pursued represents not merely an error
      of judgment, but where the judgment is manifestly unreasonable
      or where the law is not applied or where the record shows that
      the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).             Our scope of

review is limited to the evidence on the record of the Rule 600 evidentiary

hearing and the findings of the trial court. Commonwealth v. Hunt, 858

A.2d 1234, 1238 (Pa. Super. 2004).       We must view the facts in the light

most favorable to the prevailing party. Id. at 1239.

      In his Rule 1925(a) opinion, Judge Kiniry provides a thorough factual

and procedural history as it relates to the various continuances requested

and received in this matter. Accordingly, we will not recite those facts here,

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other than to note that the excludable time over which the parties disagree

is a total of 142 days attributable to requests made by defense counsel, but

allegedly either (1) not agreed to by G.C. or (2) agreed to by G.C. only

under duress.

       Rule 600 requires that a defendant must be brought to trial within 365

days from the date on which the written complaint was filed against him.3

See Pa.R.Crim.P. 600(A)(2)(a).           With regard to the computation of time,

Rule 600 provides as follows:

       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.

Pa.R.Crim.P. 600(C)(1) (emphasis added).

       When a defendant has not been brought to trial within the period

prescribed under Rule 600, the defendant may file a written motion

requesting that the charges be dismissed with prejudice. See Pa.R.Crim.P.

600 (D)(1). In considering the trial court’s ruling on a Rule 600 motion, this

Court may not ignore the dual purpose behind the Rule. Commonwealth

v. Murray, 879 A.2d 309, 312 (Pa. Super. 2005) (citation omitted). Those



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3
  Rule 600 provides further guidelines for defendants who are incarcerated
prior to trial. See Pa.R.Crim.P. 600(B). However, G.C. was at liberty on bail
for the entire pre-trial period.



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two equally important functions are:     (1) the protection of the accused’s

speedy trial rights, and (2) the protection of society. Id.

      In determining whether an accused’s right to a speedy trial has
      been violated, consideration must be given to society’s right to
      effective prosecution of criminal cases, both to restrain those
      guilty of crime and to deter those contemplating it. However,
      the administrative mandate of Rule 600 was not designed to
      insulate the criminally accused from good faith prosecution
      delayed through no fault of the Commonwealth.

      So long as there has been no misconduct on the part of
      the Commonwealth in an effort to evade the fundamental
      speedy trial rights of an accused, Rule 600 must be
      construed in a manner consistent with society’s right to
      punish and deter crime. In considering these matters, courts
      must carefully factor into the ultimate equation not only the
      prerogatives of the individual accused, but the collective right of
      the community to vigorous law enforcement as well. Strained
      and illogical judicial construction adds nothing to our search for
      justice, but only serves to expand the already bloated arsenal of
      the unscrupulous criminal determined to manipulate the system.

Id. at 312-13 (internal citations and quotation marks omitted) (emphasis

added).

      Rule 600 clearly provides that only “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 in which trial must commence.”      Pa.R.Crim.P. 600(C)(1). “Any other

periods of delay shall be excluded from the computation.”           Id.     The

Comment to Rule 600 further provides that delay is excludable if it results

from “either the availability of the defendant or the defendant’s attorney




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or any continuance granted at the request of the defendant or the

defendant’s attorney. Pa.R.Crim.P. 600, Comment (emphasis added).

      Here, G.C. has not alleged that the Commonwealth engaged in any

misconduct or otherwise failed to exercise due diligence in bringing him to

trial. Moreover, the use of the disjunctive “or” in the Comment to Rule 600

demonstrates that there is no requirement that a defendant agree to a

continuance for it to be excluded from a Rule 600 computation; it is

sufficient that the continuance be requested by defense counsel alone. G.C.

has cited to no case law holding to the contrary. Accordingly, Judge Kiniry

properly excluded 142 days attributable the continuance requests by

defendant and/or defense counsel, and G.C.’s claim is without merit.

      With respect to G.C.’s two remaining appellate issues, we have

reviewed the briefs, the relevant law, and the record as a whole, and we find

that the opinion of the Honorable Norman A. Krumenacker, III, thoroughly,

comprehensively and correctly disposes of these issues. For that reason, we

affirm based on Judge Krumenacker’s Rule 1925(a) opinion dated March 10,

2014. The parties are directed to attach a copy of that opinion in the event

of further proceedings in this matter.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




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