J-A12025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JONATHAN CORDENNER,

                            Appellant                    No. 2011 EDA 2015


               Appeal from the Judgment of Sentence June 8, 2015
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0000085-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS,* P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 23, 2016

        Appellant,   Jonathan     Cordenner,   appeals   from   the   judgment   of

sentence entered by the Honorable Cheryl L. Austin, Court of Common Pleas

of Montgomery County. Cordenner contends that the Commonwealth

violated his right against unlawful search and seizure, as well as his right to

a speedy trial. After careful review, we affirm.

        The trial court summarized the relevant factual and procedural history

as follows.

        On November 21, 2013 at approximately 11:13 p.m.,
        Montgomery Township Patrol Officer Jason English was on duty
        when he observed [Cordenner]’s Toyota Corolla pull into an
        abandoned lot. Officer English observed [Cordenner] stop in the
        abandoned lot, where he remained for a period of time. Officer
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      English drove into the abandoned lot to determine if [Cordenner]
      needed assistance. Officer English then got out of the unmarked
      police cruiser and approached [Cordenner’s] stopped vehicle.
             Officer English initiated a conversation with [Cordenner],
      and inquired why he was in the abandoned lot. [Cordenner]
      stated that he was looking for fast food, preferably an Arby’s.
      During this conversation, Officer English noticed a substance in
      the vehicle, which he believed was marijuana. [Cordenner] also
      smelled of alcohol. Officer English administered field sobriety
      tests and a portable breath test, both of which indicated
      [Cordenner] was intoxicated. Subsequently, Officer English
      arrested [Cordenner] for [d]riving [u]nder the [i]nfluence
      (“DUI”).
             On November 21, 2013, a criminal complaint was filed
      against [Cordenner], charging him with DUI and [p]ossession of
      [d]rug [p]araphernalia. [Cordenner] waived his right to a
      [p]reliminary [h]earing on December 27, 2013. A [f]ormal
      [a]rraignment, scheduled for February 12, 2014, was also
      waived by [Cordenner]. At the April 24, 2014 [p]re-[t]rial
      [c]onference, the case was continued and was subsequently put
      on the trial list for July 17, 2014.
             On July 15, 2014, [Cordenner] filed a [m]otion to
      [s]uppress [e]vidence. A hearing for [Cordenner’s] motion was
      scheduled for October 2, 2014. On September 10, 2014, [the
      trial court] issued an order postponing the hearing until October
      27, 2014. On October 27, 2014, [the trial court] heard
      [Cordenner’s] [m]otion to [s]uppress and the matter was taken
      under advisement. On November 20, 2014, [the trial court]
      issued an order denying [Cordenner’s] [m]otion to [s]uppress.
             On December 11, 2014, this matter was heard at the [c]all
      of the [t]rial [l]ist and a bench trial was subsequently scheduled
      for March 18, 2015. Prior to trial, [Cordenner] moved for this
      case to be dismissed because the Commonwealth violated Rule
      600. On that same day, [the trial court] held a hearing to decide
      the Rule 600 issue. [The trial court] denied [Cordenner’s]
      [m]otion to [d]ismiss, via memoranda order, on March 20, 2015.
             On June 8, 2015, the next available trial date, [the trial
      court] held a bench trial and [Cordenner] was found guilty on
      both counts. After trial, [Cordenner] was sentenced to 72 hours
      to 6 months of incarceration followed by 6 months of probation.

Trial Court Opinion, 9/18/15 at 1-2. This timely appeal followed.




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      On appeal, Cordenner raises two issues. First, Cordenner argues that

the trial court erred by denying his suppression motion because Officer

English’s initial approach of Cordenner’s vehicle constituted an investigative

detention necessitating reasonable suspicion. See Appellant’s Brief, at 4, 8,

10.

      Our scope and standard of review in considering the trial court’s denial

of a motion to suppress is as follows.

      [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court’s factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. Because the Commonwealth
      prevailed before the suppression court, we may consider only
      the evidence of the Commonwealth and so much of the evidence
      for the defense as remains uncontradicted [sic] when read in the
      context of the record as a whole. Where the suppression court’s
      factual findings are supported by the record, [the appellate court
      is] bound by [those] findings and may reverse only if the court’s
      legal conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)

(citation omitted). “Further, [i]t is within the suppression court’s sole

province as factfinder to pass on the credibility of witnesses and the weight

to be given their testimony.” Commonwealth v. Houck, 102 A.3d 443, 455

(Pa. Super. 2014) (citations omitted).

      We find that the suppression court’s factual findings are supported by

the record. Therefore, we proceed to examine the trial court’s application of

the relevant law to the facts at hand.




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      Cordenner contends that Officer English did not have reasonable

suspicion of criminal activity to justify the initial encounter because Officer

English’s car blocked the parking lot’s exit, Officer English approached

Cordenner in full police uniform, and Cordenner did not feel free to leave at

any point during the encounter. See Appellant’s Brief, at 4, 8, 10. The

Commonwealth contends that Officer English did not need reasonable

suspicion     to   approach   Cordenner,   because   Officer   English’s   actions

constituted a mere encounter. See Appellee’s Brief, at 7-8. We agree with

the Commonwealth.

      The Fourth Amendment of the United States Constitution guarantees,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated….”

U.S. Const. amend. IV. Similarily, the Pennsylvania Constitution assures

citizens of our Commonwealth that “[t]he people shall be secure in their

persons, houses, papers and possessions from unreasonable searches and

seizures….” Pa. Const. art. I, § 8. Further, “[t]he reasonableness of a

governmental intrusion varies with the degree of privacy legitimately

expected and the nature of the governmental intrusion.” Commonwealth v.

Fleet, 114 A.3d 840, 844 (Pa. Super. 2015) (citation omitted). Interactions

between law enforcement and citizens fall into one of three following

categories.

            The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of

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      suspicion, but carries no official compulsion to stop or respond.
      The second, an “investigative detention” must be supported by
      reasonable suspicion; it subjects a suspect to a stop and a period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of an arrest. Finally, an
      arrest or “custodial detention” must be supported by probable
      cause.

Id., at 845 (citation omitted).

      When assessing whether an interaction escalates from a mere

encounter to an investigative detention, we employ the following

standard.

      To guide the crucial inquiry as to whether or not a seizure has
      been effected, the United States Supreme Court has devised an
      objective test entailing a determination of whether, in view of all
      surrounding circumstances, a reasonable person would have
      believed that he was free to leave. In evaluating the
      circumstances, the focus is directed toward whether, by means
      of physical force or show of authority, the citizen-subject’s
      movement in some way has been restrained. In making this
      determination,    courts     must   apply    the    totality-of-the
      circumstances approach, with no single factor dictating the
      ultimate conclusion as to whether a seizure has occurred.

Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012) (citation

omitted).

      At the suppression hearing, Officer English testified that he initially

approached Cordenner because he observed Cordenner park his car in an

abandoned parking lot and believed Cordenner might be suffering from a

medical condition or need directions. See N.T., Suppression Hearing,

10/27/14 at 10-11. Officer English parked his unmarked police vehicle

fifteen feet from Cordenner’s car in a manner that did not block the entrance

to the parking lot. See id. at 10. As Officer English approached Cordenner,

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he did not activate his emergency lights, pull his gun, yell, or act in an

aggressive manner. See id. at 13. When Officer English arrived at

Cordenner’s car, he asked Cordenner if he needed assistance, and informed

him where the closest fast food restaurant was located. See id. at 12.

Additionally, Officer English indicated that he would not have followed

Cordenner if he left the parking lot upon Officer English’s approach. See id.

       Our analysis of the totality of the circumstances clearly shows that a

reasonable person would have felt free to leave upon Officer English’s

approach, and therefore Officer English’s actions constituted a mere

encounter. See Commonwealth v. Conte, 931 A.2d 690 (Pa. Super. 2007)

(finding a mere encounter where a police officer stops to help a stopped

vehicle). As the interaction constituted a mere encounter, no reasonable

suspicion to approach was needed. See Commonwealth v. Fuller, 940

A.2d 476, 479 (Pa. Super. 2007) (“A mere encounter between police and a

citizen need not be supported by any level of suspicion, and carr[ies] no

official compulsion on the part of the citizen to stop or to respond.” (internal

quotation marks and citation omitted; brackets in original)). Accordingly, we

reject Cordenner’s claim that the trial court erred in failing to suppress the

evidence recovered as a result of this encounter.1

____________________________________________


1
  We note that Cordenner only challenges the initial encounter between
himself and Officer English. Therefore, it was unnecessary to categorize the
encounter as it progressed.



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      In his final issue on appeal, Cordenner argues that the Commonwealth

violated his right to a speedy trial. Specifically, Cordenner argues that the

mechanical    run   date   for   Rule   600   was   exceeded,   and   that   the

Commonwealth did not establish that it had exercised due diligence in

bringing the case to trial. See Appellant’s Brief, at 4, 11.

      Rule 600 provides, in relevant part, that a defendant released on bail

is entitled to have trial commence no later than 365 days after the complaint

was filed. See Pa.R.Crim.P. 600(A)(2)(a). Our scope and standard of review

relating to the application of Rule 600 is whether the trial court abused its

discretion. See Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa.

Super. 2006) (citation omitted). “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 . . . discretion is abused.”

Commonwealth v. Selenski, 994 A.2d 1083, 1087 (Pa. 2010) (citations

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. We must

view the facts in the light most favorable to the prevailing party.” Robbins,

900 A.2d at 415.

      Additionally, when considering the trial court’s ruling, this Court
      is not permitted to ignore the dual purpose behind Rule [600].
      Rule [600] serves two equally important functions; (1) the
      protection of the accused’s speedy trial rights, and (2) the
      protection of society. In determining whether an accused’s right
      to a speedy trial has been violated, consideration must be given

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      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.

Commonwealth v. Hunt, 858 A.2d 1234, 1239 (Pa. Super. 2004) (en

banc) (citation omitted; brackets in original).

      “[T]o obtain relief, a defendant must have a valid Rule 600 claim at

the time he files his motion to dismiss the charges.” Commonwealth v.

Hyland, 875 A.2d 1175, 1189 (Pa. Super. 2005). The first step in

conducting a Rule 600 analysis is to calculate the “mechanical run date.”

Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa. Super. 2003). “The

mechanical run date is the date by which the trial must commence under

Rule 600. It is calculated by adding 365 days . . . to the date on which the

criminal complaint is filed.” Id. (citation omitted). “If the Commonwealth

attempts to bring a defendant to trial beyond the 365 day-period prescribed

by Rule 600, and the defendant filed a Rule 600 motion to dismiss, the court

must assess whether there is excludable time and/or excusable delay.”

Hunt, 858 A.2d at 1241. The court must exclude from the time for

commencement of trial any periods during which the defendant was

unavailable, including any continuances requested by the defendant. See

Pa.R.Crim.P. 600(C); Rule 600, Comment. The amount of excludable time is

added to the mechanical run date to arrive at an adjusted run date. See

Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. 2007).

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       The filing of a pre-trial motion does not automatically make a

defendant      unavailable      within    the    meaning   of   Rule   600.    See

Commonwealth v. Wallace, 804 A.2d 675, 679 (Pa. Super. 2002).2

       Rather, a defendant is unavailable only if the filing of the pretrial
       motion caused a delay in the commencement of trial. Moreover,
       to establish that the delay is excludable, the Commonwealth
       must demonstrate, by a preponderance of the evidence, that it
       exercised due diligence in opposing or responding to the pretrial
       motion; a delay caused by the Commonwealth’s lack of due
       diligence will not constitute excludable time.

Id. (internal citations omitted). The Commonwealth can show that it

exercised due diligence in responding to a motion, if it “attended and was

prepared for each of the proceedings that was conducted in consideration of

these motions.” Commonwealth v. Hill, 736 A.2d 578, 581 (Pa. 1999).3

       After the inclusion of excludable time, even where a violation of Rule

600 has occurred, we must apply a due diligence analysis to assess whether

the delay was excusable. See Ramos, 936 A.2d at 1103. “‘Excusable delay’

is not expressly defined in Rule 600, but the legal construct takes into

account delays which occur as a result of circumstances beyond the

Commonwealth’s control and despite its due diligence.” Hunt, 858 A.2d at

1241 (citation omitted). Due diligence must be determined on a case-by-

____________________________________________


2
  Wallace was decided when Rule 600 was known as Rule 1100.
Nevertheless, the analysis remains the same.
3
 Like Wallace, Hill was decided when Rule 600 was known as Rule 1100.
However, this distinction does not change our analysis.



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case basis. See id. “Due diligence does not require perfect vigilance and

punctilious case, but rather a showing by the Commonwealth that a

reasonable effort has been put forth.” Id., at 1241-42 (citation omitted). A

period of delay that is excusable results in an extension to the adjusted run

date. See Ramos, 936 A.2d at 1103. Extensions added to the adjusted run

date produce the final Rule 600 run date. See id. The trial court must

dismiss the charges if the Commonwealth does not bring the defendant to

trial on or before the final run date. See id.

      Here, the Commonwealth filed its complaint on November 21, 2013.

Thus, the mechanical run date was November 21, 2014. Cordenner filed a

pre-trial motion to suppress evidence on July 15, 2014. After he filed the

motion, the trial court scheduled a suppression hearing for October 2, 2014.

The suppression hearing was rescheduled for October 27, 2014. On the date

of the suppression hearing, the Commonwealth appeared and presented

witnesses in opposition to Cordenner’s motion. The trial court denied

Cordenner’s motion on November 20, 2014.

      The filing of this motion caused a delay in the proceedings from the

previously scheduled trial date of July 17, 2014, until the trial court’s

disposition of Cordenner’s motion to suppress on November 20, 2014. As

discussed, a defendant is “unavailable” within the meaning of Rule 600 when

the filing of a pre-trial motion delays a trial date and the Commonwealth can

show it exercised due diligence in responding to the defendant’s motion. See


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Wallace, 804 A.2d at 679. The Commonwealth exercised due diligence by

preparing for, and attending all hearings related to Cordenner’s motion. See

Hill, 736 A.2d at 581. Thus, the 126-day period between July 17, 2014 and

November 20, 2014 is attributable to Cordenner and excludable under Rule

600(C). We see no abuse of discretion in the court’s decision. See

Commonwealth v. McNear, 852 A.2d 401, 407 (Pa. Super. 2004). An

addition of 126 days of excludable time results in an adjusted run date of

March 27, 2015. As Cordenner filed his Rule 600 motion on March 18, 2015,

the trial court properly denied his Rule 600 motion.4

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2016




____________________________________________


4
  Because it is clear that Cordenner filed his Rule 600 motion before the
extended run date, we do not need to analyze the entire record to determine
whether the final run date is March 27, 2015 or some later date. See
Hyland, 875 A.2d at 1189.



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