J-S56014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                     v.

THOMAS REYES

                          Appellant                    No. 2794 EDA 2016


            Appeal from the Judgment of Sentence August 2, 2016
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0001743-2016


BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED NOVEMBER 21, 2017

        Thomas Reyes appeals from the judgment of sentence of two and one-

half to five years incarceration imposed following his convictions for

contraband, possession with intent to deliver, and possession of implements

of escape. We affirm.

        On September 21, 2014, Lieutenant Antonio Olivarez, assigned to the

internal security department at Graterford Prison, ordered an investigatory

search of Appellant’s jail cell.      At approximately 12:55 p.m., Correctional

Officers Jeffrey McCusker and Shane Cuddeback proceeded to Appellant’s

cell.   At this time, the facility was “conducting count,” a procedure where

inmates are required to stand in their cells with the light on. Searches are

conducted during the count process to guard against inmates alerting each


* Retired Senior Judge specially assigned to the Superior Court.
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other.   At the time of the search, all inmates on Appellant’s block were

secured in their cells.

      Officer Cuddeback made entry and observed Appellant, who was

seated on the bottom bunk, drop an item on the left side of the bed. Officer

Cuddeback, per procedure, placed handcuffs on Appellant in order to search

the cell.   Officer Cuddeback recovered a cell phone, which inmates are

prohibited from possessing, in addition to two fingertips from latex gloves.

Witnesses testified that fingertips are commonly severed from a glove in

order to knot and package narcotics. The fingertips were opened and found

to contain material that was subsequently sent for testing, which revealed

that the item was synthetic marijuana, commonly referred to as K2.          The

items were recovered in close proximity to Appellant.

      Lieutenant    Olivarez   explained   that   Appellant   was   continuously

assigned to that particular cell since July 31, 2009, and last had a cellmate

in February of 2014.       Appellant’s possession of contraband prompted

Lieutenant Olivarez to begin monitoring Appellant’s mail over the next year.

The Commonwealth then introduced four letters, which generally made

reference to the confiscation of the K2 and cell phone. These letters were

sent on September 23, 24, and 30 of 2014 and April 9, 2015.

      Charges were filed against Appellant on May 5, 2015.                 Trial

commenced on July 13, 2016, and culminated in a guilty verdict. On August

2, 2016, the trial court imposed the aforementioned sentence.          Appellant

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filed a timely notice of appeal, and complied with the trial court’s order to

file a concise statement of matters complained of on appeal. The matter is

ready for review of Appellant’s two issues.

      I. Did the trial court erroneously deny Appellant's Rule 600
      motion, where the Commonwealth failed to establish that it
      affirmatively acted with due diligence on the one occasion where
      it later argued for excusable delay?

      II. Did the trial court erroneously deny Appellant's motion in
      limine to exclude certain letters purportedly written by Appellant,
      where the Commonwealth's witness never saw Appellant write
      these letters or any other document and where that witness was
      not qualified to testify as an expert?

Appellant’s brief at 5.

      Appellant’s first issue concerns an alleged failure of the Commonwealth

to timely prosecute his case pursuant to Pennsylvania Rule of Criminal

Procedure 600.    Our standard and scope of review in evaluating Rule 600

issues is well-settled. We determine

      whether the trial court abused its discretion. Judicial discretion
      requires action in conformity with law, upon facts and
      circumstances judicially before the court, after hearing and due
      consideration. 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.

      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. An appellate court must view the facts in the
      light most favorable to the prevailing party.




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Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013) (citing

Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa.Super. 2007) (en

banc) (alterations in original due to rule renumbering)).        “The proper

application of discretion requires adherence to the law, and we exercise

plenary review of legal questions.”    Commonwealth v. Baird, 975 A.2d

1113, 1118 (Pa. 2009) (citing Commonwealth v. Chamberlain, 731 A.2d

593, 595 (Pa. 1999)). Where the Commonwealth’s due diligence is at issue,

we apply the following principle:

      As has been oft stated, “[d]ue diligence is fact-specific, to be
      determined case-by-case; it does not require perfect vigilance
      and punctilious care, but merely a showing the Commonwealth
      has put forth a reasonable effort.”

Commonwealth v. Bradford, 46 A.3d 693, 701–02 (Pa. 2012) (quoting

Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)).

      Rule 600, as rescinded and adopted July 1, 2013, requires the

Commonwealth to try a defendant within one year of filing the complaint. It

provides:

      (A) Commencement of Trial; Time for Trial

      (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.


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Pa.R.Crim.P. 600.         Since the complaint was filed May 5, 2015, the

Commonwealth was required to try Appellant on or before May 4, 2016.1

Trial commenced on July 13, 2016, which exceeded the applicable 365-day

period by seventy days. However, the mere fact that more than 365 days

had elapsed does not automatically entitle Appellant to discharge. The Rule

sets forth a particular method for calculating “the time within which trial

must commence:”

        (C) Computation of Time

        (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.

Pa.R.Crim.P. 600. “[T]he inquiry for a judge in determining whether there is

a violation of the time periods in paragraph (A) is whether the delay is

caused solely by the Commonwealth when the Commonwealth has failed to

exercise due diligence.” Comment, Pa.R.Crim.P. 600.

        Appellant’s Rule 600 argument challenges the court’s finding that the

thirty-four-day period spanning July 24, 2015, to August 27, 2015, a delay

caused by a rescheduling of Appellant’s preliminary hearing, was not

____________________________________________


1
    2016 was a leap year.



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included in the 365-day calculation. At the Rule 600 hearing, held on June

3, 2016, the Commonwealth called Tanya Scarafone, the clerk for

Magisterial District Judge Augustine.       She explained that Appellant’s

preliminary hearing was scheduled for July 24, 2015; however, the district

judge was out of the office that day.        As a result, the hearing was

rescheduled for August 27, 2015.        Appellant did not dispute that the

Commonwealth was prepared to proceed on the July date.

      We agree that this period of delay should be excluded in the Rule

600(C)(1) computation.     Appellant asserts that this time period must be

included as the Commonwealth failed to exercise due diligence by failing to

find another magistrate who could preside over the case.          In support,

Appellant notes that Ms. Scarafone testified that obtaining coverage from

other magistrates was possible.     Therefore, Appellant argues that since

another courtroom could have accommodated the preliminary hearing, due

diligence required the Commonwealth to seek an alternative courtroom.

      We disagree.   Appellant’s argument is simply another way of saying

that the Commonwealth’s due diligence obligation encompasses every

theoretical action that could prevent a delay. We have long stated that due

diligence “does not require perfect vigilance and punctilious care, but merely

a showing the Commonwealth has put forth a reasonable effort.” Bradford,

supra at 702 (citation omitted).          As the Commonwealth observes,




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“affirmative action is not synonymous with extraordinary measures.”

Commonwealth’s brief at 11.

      In this respect, we note that in Commonwealth v. Anderson, 959

A.2d 1248, 1250 (Pa.Super. 2008), we observed “The extent to which the

Commonwealth must look for other available courtrooms is not clear.”

However, in Anderson, the Rule 600 run date was set to expire on

December 9, 2005, and the Commonwealth scheduled the case for trial on

December 1, 2005. At that juncture, a number of postponements occurred,

some of which were caused by the courtroom’s unavailability. We ultimately

concluded that Rule 600 was not violated.

      Anderson dealt with a quite different scenario than the situation

herein, since therein, the Commonwealth was running up against the Rule

600 limit. In contrast, Appellant’s case was nowhere near the Rule 600 time

limit as of July 24.    Whatever the extent of the Commonwealth’s due

diligence obligations to seek another courtroom when a Rule 600 deadline is

looming, we fail to see why due diligence requires the prosecution to seek

another magistrate so early in the process. Hence, we agree that the thirty-

four-day period of time is not included in the 365-day calculation, due to the

magistrate’s unavailability. Therefore, the Commonwealth did not cause the

delay and the trial court’s determination was not erroneous.              See

Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (“[G]iven this

Court's holding that periods of judicial delay are excludible from calculations

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under the rule, courts of original jurisdiction must apply judgment in

distinguishing between delay attributable to the court and that which should

be allocated to a party.”) (citation omitted).

      Having established that this time period is not included, we note that

the Rule 600 hearing occurred on June 3, 2016. As of that date, 395 days

had elapsed, i.e., thirty days over the limit. Since we have determined that

thirty-four days are not included in the calculation, four days remained in

which to commence trial.          The Commonwealth asserted that the time

required   for   disposing   of     the    pre-trial     motions    was    not   included.

In Commonwealth v. Hill, 736 A.2d 578 (Pa. 1999), our Supreme Court

established that the filing of a pre-trial motion does not automatically render

a   defendant     unavailable       for    trial   for     purposes       of   the     Rule.

However, Hill established that delay in the commencement of a trial caused

by the filing of pre-trial motions is not chargeable to the Commonwealth if

the Commonwealth exercised due diligence in responding to the motion.

The Commonwealth did so here.

      Finally,   we   note   that    the    Commonwealth           represented       that   it

commenced trial on the earliest possible date following the Rule 600

hearing.   Commonwealth’s brief at 11.             The Rule 600 hearing transcript

indicates that the parties discussed setting the trial as soon as possible.

Appellant makes no challenge to any time period other than the thirty-four




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days, and we therefore find that Appellant is not entitled to relief on his Rule

600 claim.

      We now address Appellant’s second claim, which assails the trial

court’s denial of his pre-trial motion seeking exclusion of the inmate letters.

We apply the following standard of review.

      We review a trial court's decision to grant a motion in limine for
      an abuse of discretion. Commonwealth v. Belani, 101 A.3d
      1156, 1160 (Pa.Super. 2014). “‘A trial court has broad discretion
      to determine whether evidence is admissible,’ and [its] ruling
      regarding the admission of evidence ‘will not be disturbed on
      appeal unless that ruling reflects manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support to be
      clearly erroneous.’” Id. (quoting Commonwealth v. Huggins,
      68 A.3d 962, 966 (Pa.Super. 2013)).

Commonwealth v. Ribot, 169 A.3d 64, 67 (Pa.Super. 2017). Pennsylvania

Rule of Evidence 901 provides, in pertinent part, as follows:

      Rule 901. Requirement of authentication or identification

      (a) General provision. The requirement of authentication or
      identification as a condition precedent to admissibility is satisfied
      by evidence sufficient to support a finding that the matter in
      question is what its proponent claims.

      (b) Illustrations. By way of illustration only, and not by way of
      limitation, the following are examples of authentication or
      identification conforming with the requirements of this rule:

      ...

      (4) Distinctive characteristics and the like. Appearance, contents,
      substance, internal patterns, or other distinctive characteristics,
      taken in conjunction with circumstances.

Pa.R.E. 901.



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      The trial court held a pre-trial hearing on this matter, wherein

Lieutenant Olivarez testified that, as a result of this incident, he began

monitoring Appellant’s mail. In authenticating that the letters were penned

by Appellant, he explained that an inmate places mail in a designated

mailbag, which is then secured.      In addition, the Lieutenant stated that

Appellant always used the same nickname as a signature in his letters. The

envelope for these letters bore Appellant’s inmate number and the address

of the recipient. Three of the letters introduced at trial were addressed to

Roberta Calderon, Appellant’s girlfriend. Finally, to confirm that the letters

were in fact written by Appellant, the Lieutenant examined other materials

signed by Appellant, such as signature sheets at meetings in the jail, and

testified that the writing matched. However, Lieutenant Olivarez confirmed

that he did not witness Appellant actually signing any document.

      We extensively examined the issue of authentication of letters in

Commonwealth v. Brooks, 508 A.2d 316 (Pa.Super. 1986), which

explained the basic principles.

      Generally, two requirements must be satisfied for a document to
      be admissible: it must be authenticated and it must be relevant.
      In other words, a proponent must show that the document is
      what it purports to be and that it relates to an issue or issues in
      the truth determining process. Specific evidentiary rules have
      developed for authenticating writings such as letters. These rules
      are necessary because of the problems involved in ascertaining
      the authorship of documents. As one commentator notes,
      “[m]ost documents bear a signature, or otherwise purport on
      their face to be of a certain person's authorship.” 7
      Wigmore, Evidence § 2130 at 709 (Chadbourn rev. 1978). It

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      would be too easy to assume that a letter bearing the signature
      of “X” was authored by “X”. In order that such an unsupported
      assumption not be the foundation of authentication, the
      requirement for admission of a document such as a letter is a
      prima facie case that the document is what it purports to be. . . .

      A document may be authenticated by direct proof, such as the
      testimony of a witness who saw the author sign the document,
      acknowledgment of execution by the signer, admission
      of authenticity by an adverse party, or proof that the document
      or its signature is in the purported author's handwriting . . . .

      A document may also be authenticated by circumstantial
      evidence, a practice which has been uniformly recognized as
      permissible.

Id. at 318 (footnotes and some citations omitted).

      We find that circumstantial evidence provided a sufficient basis to

authenticate the letters. Significantly, the letters were introduced together

with their envelopes, which included Appellant’s designated inmate number.

Furthermore, the letters included details of the crime in question within days

of the incident. In Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008),

our Supreme Court reviewed an ineffectiveness claim challenging appellate

counsel’s failure to pursue a preserved objection regarding the introduction

of inmate mail. As herein, Collins involved letters written by the defendant

while he was in jail, imploring a witness not to testify against the defendant.

The Court explained there was no arguable merit to the ineffectiveness

claim.

      [T]he Commonwealth counterargues that the letters were
      authenticated “by their distinctive characteristics, taken in
      conjunction with the circumstances of the case, as having been

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      written by [appellant].” Commonwealth's Brief at 64–65. In
      particular, the Commonwealth notes that the letters: were
      mailed from the prison in which appellant was incarcerated;
      contained appellant's unique seven-digit prison identification
      number; urged a course of conduct that would benefit appellant
      and only appellant; and identified appellant's trial counsel by
      name.
      ....

      We agree with the Commonwealth that the trial court's decision
      to admit the two letters was well within its discretion. The
      circumstances cited by the PCRA court and the Commonwealth
      are more than sufficient, when considered in their totality, to
      authenticate the letters. We further note that the first letter
      mentioned trial counsel's name in the context of the defense's
      trial strategy of shifting suspicion for the murder away from
      appellant and toward Cofer; that the second letter referred to
      the first one; and that the letters were dated within several
      weeks of Cofer's July 14, 1992 police statement, which the first
      letter referenced. Because appellant's underlying claim of trial
      court error lacks arguable merit, his derivative ineffectiveness
      claim did not warrant an evidentiary hearing.

Id. at 266 (citations to transcript omitted). Therefore, in Collins the letters

were admitted without any reference to opinions regarding the handwriting.

      We find that the court did not err in admitting the evidence.      As in

Collins, these letters contained Appellant’s unique prisoner number,

referenced specific details of the crimes, specifically referred to the seizure

of K2, and three of the letters were sent less than a week after the incident

in question.   These circumstances demonstrate that the trial court did not

err in permitting the introduction of the evidence, and we affirm on that




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basis as it is supported by the record.2 See Commonwealth v. Moser, 999

A.2d 602, 606, n. 5 (Pa.Super. 2010).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




____________________________________________


2
  We note that the Commonwealth responded to Appellant’s authentication
claim on the basis that Lieutenant Olivarez could offer lay opinion testimony
that Appellant wrote the letters.       Assuming arguendo that Appellant
preserved a challenge to the introduction of statements made by Lieutenant
Olivarez as to authorship based on the handwriting, as opposed to the
introduction of the evidence itself, we deem any such error harmless as the
evidence was properly authenticated and introduced.



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