J-S03029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GEORGE LAND                                :
                                               :
                       Appellant               :   No. 957 EDA 2018

           Appeal from the Judgment of Sentence February 27, 2018
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0003372-2016


BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 28, 2019

        Appellant, George Land, appeals from the judgment of sentence entered

on February 27, 2018. We affirm.

        On February 19, 2015, Appellant pulled into a stranger’s driveway. The

stranger called the Plymouth Township Police Department because she did not

recognize Appellant’s vehicle. When police arrived, Appellant resisted arrest.

        The following day, the Commonwealth charged Appellant with various

offenses via criminal complaint.          Thereafter, the Commonwealth charged

Appellant via criminal information with two counts of disorderly conduct, 1




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1   18 Pa.C.S.A. § 5503(a)(1), (a)(4).
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aggravated assault,2 possession with intent to deliver a controlled substance,3

resisting arrest,4 simple assault,5 possession of a controlled substance by an

unregistered person,6 and driving under the influence of a controlled

substance.7 On August 8, 2017, Appellant moved to dismiss all charges under

Pennsylvania Rule of Criminal Procedure 600. On October 5, 2017, the trial

court denied that motion.

        Trial commenced on November 28, 2017. Appellant called a neurologist

to testify regarding injuries he suffered during the altercation with police.

Appellant also attempted to call his mother and sister to testify regarding the

injuries he suffered during the altercation with police. The trial court sustained

the Commonwealth’s objection to Appellant’s mother’s and sister’s testimony.

On November 29, 2017, a jury convicted Appellant of resisting arrest, simple

assault, and possession of a controlled substance by an unregistered person.

On February 23, 2018, the trial court sentenced Appellant to an aggregate



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2   18 Pa.C.S.A. § 2702(a)(3).

3   35 P.S. § 780-113(a)(30).

4   18 Pa.C.S.A. § 5104.

5   18 Pa.C.S.A. § 2701(a)(1).

6   35 P.S. § 780-113(a)(16).

7   75 Pa.C.S.A. § 3802(d)(2).



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term of 9 to 23 months’ imprisonment followed by three years’ probation. This

timely appeal followed.8

        Appellant presents two issues for our review:

        1. Did the [trial] court improperly credit the Commonwealth with
           excusable delay in bringing this case to trial?

        2. Is [Appellant] entitled to a new trial because the trial court
           erroneously excluded as irrelevant proffered evidence
           probative of injuries sustained by [Appellant] during the course
           of his arrest where that evidence was offered to show bias and
           motive on the part of the Commonwealth’s police witnesses?

Appellant’s Brief at 2.9

        In his first issue, Appellant argues that the trial court erred by denying

his motion to dismiss pursuant to Rule 600. We review a trial court’s order

denying a Rule 600 motion for an abuse of discretion. Commonwealth v.

McCarthy, 180 A.3d 368, 373 (Pa. Super. 2018), appeal denied, 193 A.3d

346 (Pa. 2018) (citation omitted).             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. An appellate court must view the facts in the light most

favorable to the prevailing party.” Commonwealth v. Wendel, 165 A.3d

952, 956 (Pa. Super. 2017) (citation omitted).



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8 The trial court did not order Appellant to file a concise statement of errors
complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b).
Nonetheless, Appellant filed a concise statement that included both of the
issues raised on appeal.

9   We have renumbered the issues for ease of disposition.

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     Rule 600 provides, in relevant part:

     (1) For the purpose of this rule, trial shall be deemed to commence
     on the date the trial judge calls the case to trial, or the defendant
     tenders a plea of guilty or nolo contendere.

     (2) Trial shall commence within the following time periods.

     (a) 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.

                                     ***

     (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.

                                     ***

     (3)(a) When a judge or issuing authority grants or denies a
     continuance:
     (i) the issuing authority shall record the identity of the party
     requesting the continuance and the reasons for granting or
     denying the continuance; and

     (ii) the judge shall record the identity of the party requesting the
     continuance and the reasons for granting or denying the
     continuance. The judge also shall record to which party the period
     of delay caused by the continuance shall be attributed, and
     whether the time will be included in or excluded from the
     computation of the time within which trial must commence in
     accordance with this rule.

     (b) The determination of the judge or issuing authority is subject
     to review as provided in paragraph (D)(3).

     (D) Remedies

     (1) When a defendant has not been brought to trial within the time
     periods set forth in paragraph (A), at any time before trial, the

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       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.

                                     ***

       (3) Any requests for review of the determination in paragraph
       (C)(3) shall be raised in a motion or answer filed pursuant to
       paragraph (D)(1) or paragraph (D)(2).

Pa.R.Crim.P. 600.

       This Court has explained

       the courts of this Commonwealth employ three steps in
       determining whether Rule 600 requires dismissal of charges
       against a defendant. First, Rule 600(A) provides the mechanical
       run date. Second, we determine whether any excludable time
       exists pursuant to Rule 600(C). We add the amount of excludable
       time, if any, to the mechanical run date to arrive at an adjusted
       run date.

       Rule 600[ ] encompasses a wide variety of circumstances under
       which a period of delay was outside the control of the
       Commonwealth and not the result of the Commonwealth’s lack of
       diligence. Any such period of delay results in an extension of the
       run date. Addition of any Rule 600 extensions to the adjusted run
       date produces the final Rule 600 run date. If the Commonwealth
       does not bring the defendant to trial on or before the final run
       date, the trial court must dismiss the charges.

Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018) (cleaned

up).

       The mechanical run date was February 22, 2016. Appellant concedes in

his brief that he was responsible for 428 days of delay – 411 days between

the filing of the complaint and the preliminary hearing and 27 days for a


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mental health evaluation. The trial court found additional excludable delay

and we agree with those findings. Appellant filed an omnibus pretrial motion

which caused a 63-day delay. Moreover, Appellant requested a continuance

on August 1, 2017 due to his expert being unavailable. Therefore, the seven

days between that date and the filing of the Rule 600 motion were excludable.

Hence, the adjusted run date was June 14, 2017.

       On May 10, 2017, the Commonwealth moved for a continuance because

a witness was unavailable due to a work-related injury and the police union’s

collective bargaining agreement. “It is well-settled that the Commonwealth

cannot be held to be acting without due diligence when a witness becomes

unavailable due to circumstances beyond its control.” Wendel, 165 A.3d at

957 (cleaned up). As the witness’ unavailability was beyond the control of the

Commonwealth, the 83-day delay caused by this continuance request was

excusable. That pushes the final run date to, at the earliest, September 5,

2017 – more than one month after Appellant filed his Rule 600 motion.10

Hence, the trial court properly denied the Rule 600 motion.



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10 Because the time between the filing of a Rule 600 motion and the decision
regarding that motion is ipso facto excludable, a trial court must evaluate a
Rule 600 motion based on the date the motion was filed. Moreover, Appellant
did not file a second Rule 600 motion. Therefore, the parties incorrectly
include the time period between the date Appellant filed his Rule 600 motion
and the date trial began in their analysis.




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         In his second issue, Appellant argues that the trial court erred by

excluding the testimony of his mother and sister.11           We review a trial court’s

ruling    on   the   admission     of   evidence   for   an    abuse    of   discretion.

Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa. Super. 2018), appeal

denied, 197 A.3d 1180 (Pa. 2018) (citation omitted).

         The trial court did not abuse its discretion by sustaining the

Commonwealth’s objection to the proffered testimony.               The evidence was

inadmissible under Pennsylvania Rule of Evidence 403, which provides that

evidence is inadmissible if its probative value is “outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.Evid. 403.

         The facts in this case are very similar to the facts in Commonwealth

v. Akrie, 159 A.3d 982 (Pa. Super. 2017). In Akrie, the defendant sought

to admit evidence that he was assaulted by police when he was arrested.

According to the defendant in Akrie, the police charged him with more serious

offenses because he complained about the assault.




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11 To the extent Appellant argues that the exclusion of the evidence violated
his constitutional rights, that argument is waived. See Pa.R.A.P. 302(a).
Moreover, even if such a challenge were not waived, it would be without merit.
See United States v. Sanchez-Espinoza, 343 F. App’x 254, 256 (9th Cir.
2009); see also United States v. Scheffer, 523 U.S. 303, 308 (1998).

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      This Court held that the trial court did not abuse its discretion by

excluding the evidence.    First, this Court explained that the probative value

of the evidence was low because it was not the extent of the injuries that Akrie

suffered that was critical to his defense. Id. at 987. Rather, it was the fact

that an alleged assault occurred. See id. This is even more true in this case

because Appellant was charged on the night of the incident. At that time,

police were not aware of the extent of any alleged injuries that Appellant

suffered during the confrontation. It was the alleged fact that excessive force

was used that was critical to Appellant’s defense. The probative value of the

proffered evidence in this case was, therefore, less than the similar evidence

proffered in Akrie.

      Moreover, in Akrie this Court concluded that “the risk of confusing the

issues was great. If [the evidence] were admitted [] it is likely that the jury

would have focused on [the officer’s] use of excessive force instead of on

whether [the defendant] committed the alleged offenses.” Id. (cleaned up).

In reaching this conclusion, this Court relied on persuasive authority from

federal and state courts around the nation. Id. at 987-988 (collecting cases).

The same is true in this case. The trial court permitted Appellant’s neurologist

to testify regarding the injuries Appellant allegedly suffered. The trial court

also permitted Appellant to testify about the alleged assault. If the trial court

permitted Appellant’s mother and/or sister to testify regarding the alleged

injuries Appellant suffered, the jury could have been confused into thinking


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the trial was about the alleged police misconduct. Although the alleged police

misconduct was part of Appellant’s defense, the ultimate question was

whether Appellant committed the alleged offenses.       Because the probative

value of the evidence did not outweigh the risk of confusing the jury, the trial

court did not abuse its discretion in sustaining the Commonwealth’s

objection.12

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/19




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12 Moreover, as Appellant and his neurologist testified as to the injuries
Appellant allegedly suffered, allowing Appellant’s mother and/or sister to
also testify as to his injuries would “needlessly present [] cumulative
evidence.” Pa.R.Evid. 403.

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