J-S45005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    RAFIYQ HARDING                             :
                                               :
                      Appellant                :       No. 1697 EDA 2016

            Appeal from the Judgment of Sentence January 20, 2016
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011285-2014


BEFORE:      GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED SEPTEMBER 29, 2017

        Appellant, Rafiyq Harding, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas,

following his bench trial convictions of firearms not to be carried without a

license and carrying firearms on public streets in Philadelphia.1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history. Therefore, we have no reed to restate them.

        Appellant raises the following issues for our review:

           IS THE EVIDENCE SUFFICIENT AS A MATTER OF LAW TO
           SUSTAIN APPELLANT’S CONVICTION FOR THE CRIMES OF
           18 PA.C.S.A. §§ 6106 AND 6108 AS THE EVIDENCE DOES
           NOT ESTABLISH THAT [APPELLANT] CONSTRUCTIVELY
____________________________________________


1
    18 Pa.C.S.A. §§ 6016(a)(1), 6108, respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S45005-17


       POSSESSED A FIREARM RECOVERED FROM A VEHICLE
       WHERE: (A) THERE IS NO PHYSICAL, FORENSIC, OR
       SCIENTIFIC EVIDENCE ESTABLISHING [APPELLANT’S]
       POSSESSION OR USE OF A FIREARM; (B) THE FIREARM
       WAS RECOVERED FROM A VEHICLE THAT WAS NOT
       OWNED BY, OR REGISTERED TO, [APPELLANT]; (C)
       [APPELLANT] WAS NOT IN THE VEHICLE WHEN POLICE
       SEARCHED THE VEHICLE AND RECOVERED THE FIREARM;
       (D) THE FIREARM WAS RECOVERED FROM THE BACK SEAT
       OF THE VEHICLE AND [APPELLANT] WAS NEVER SEEN IN
       THE BACKSEAT OF THE VEHICLE; AND, (E) [APPELLANT]
       WAS NEVER SEEN PUTTING ANYTHING INTO THE
       VEHICLE, INCLUDING THE FIREARM RECOVERED BY
       POLICE?

       IS THE VERDICT FOR ALL CRIMES OF 18 PA.C.S.A. §§
       6106 AND 6108 AGAINST THE WEIGHT OF THE EVIDENCE
       AND SO CONTRARY TO THE EVIDENCE THAT IT SHOCKS
       ONE’S SENSE OF JUSTICE AS THE EVIDENCE DOES NOT
       ESTABLISH    THAT   [APPELLANT]   CONSTRUCTIVELY
       POSSESSED A FIREARM RECOVERED FROM A VEHICLE
       WHERE: (A) THERE IS NO PHYSICAL, FORENSIC, OR
       SCIENTIFIC EVIDENCE ESTABLISHING [APPELLANT’S]
       POSSESSION OR USE OF A FIREARM; (B) THE FIREARM
       WAS RECOVERED FROM A VEHICLE THAT WAS NOT
       OWNED BY, OR REGISTERED TO, [APPELLANT]; (C)
       [APPELLANT] WAS NOT IN THE VEHICLE WHEN POLICE
       SEARCHED THE VEHICLE AND RECOVERED THE FIREARM;
       (D) THE FIREARM WAS RECOVERED FROM THE BACK SEAT
       OF THE VEHICLE AND [APPELLANT] WAS NEVER SEEN IN
       THE BACKSEAT OF THE VEHICLE; AND, (E) [APPELLANT]
       WAS NEVER SEEN PUTTING ANYTHING INTO THE
       VEHICLE, INCLUDING THE FIREARM RECOVERED BY
       POLICE?

       DID THE TRIAL COURT ERR WHEN IT DENIED
       APPELLANT’S PRE-TRIAL MOTION TO DISMISS PURSUANT
       TO PA.R.CRIM.P. 600?

       IS THE SENTENCE IMPOSED IN THIS MATTER UNDULY
       HARSH, EXCESSIVE AND UNREASONABLE UNDER THE
       CIRCUMSTANCES    WHERE    IT   IS   ABOVE    THE
       RECOMMENDED/STANDARD RANGE OF THE SENTENCING
       GUIDELINES, AND THE [SENTENCING] COURT FAILED TO

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           TAKE INTO ACCOUNT ALL RELEVANT AND NECESSARY
           FACTORS TO BE CONSIDERED BY A SENTENCING COURT,
           AND/OR IMPOSED A SENTENCE BASED UPON FACTORS OR
           EVIDENCE WHICH SHOULD NOT BE RELIED UPON BY A
           SENTENCING COURT?

(Appellant’s Brief at 8-9).2

        A challenge to the sufficiency of the evidence implicates the following

legal principles:

           The standard we apply in reviewing the sufficiency of the
           evidence is whether viewing all the evidence admitted at
           trial in the light most favorable to the verdict winner, there
           is sufficient evidence to enable the fact-finder to find every
           element of the crime beyond a reasonable doubt. In
           applying [the above] test, we may not weigh the evidence
           and substitute our judgment for the fact-finder.            In
           addition, we note that the facts and circumstances
           established by the Commonwealth need not preclude every
           possibility of innocence.        Any doubts regarding a
           defendant’s guilt may be resolved by the fact-finder unless
           the evidence is so weak and inconclusive that as a matter
           of law no probability of fact may be drawn from the
           combined circumstances. The Commonwealth may sustain
           its burden of proving every element of the crime beyond a
           reasonable doubt by means of wholly circumstantial
           evidence. Moreover, in applying the above test, the entire
           record must be evaluated and all evidence actually
           received must be considered. Finally, the [finder] of fact
           while passing upon the credibility of witnesses and the
           weight of the evidence produced, is free to believe all, part
           or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).
____________________________________________


2
    For purposes of disposition, we have reordered Appellant’s issues.



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      Regarding our standard of review for a challenge to the weight of the

evidence, we observe:

            The weight of the evidence is exclusively for the finder of
            fact who is free to believe all, part, or none of the evidence
            and to determine the credibility of the witnesses. An
            appellate court cannot substitute its judgment for that of
            the finder of fact. Thus, we may only reverse the lower
            court’s verdict if it is so contrary to the evidence as to
            shock one’s sense of justice. Moreover, where the trial
            court has ruled on the weight claim below, an appellate
            court’s role is not to consider the underlying question of
            whether the verdict is against the weight of the evidence.
            Rather, appellate review is limited to whether the trial
            court palpably abused its discretion in ruling on the weight
            claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted). “A weight of the evidence claim concedes that

the evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal     that   a   guilty   verdict   shocks    one’s   sense   of     justice.”

Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013),

cert. denied, ___ U.S. ___, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014).

“[C]redibility determinations are made by the fact finder and…challenges

thereto go to the weight…of the evidence.”           Commonwealth v. Gaskins,

692 A.2d 224, 227 (Pa.Super. 1997).

      Section 6106 of the Pennsylvania Uniform Firearms Act describes in

pertinent part the offense of firearms not to be carried without a license:


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            § 6106. Firearms not to be carried without a license

            (a) Offense defined.—

            (1) Except as provided in paragraph (2), any person who
            carries a firearm in any vehicle or any person who carries a
            firearm concealed on or about his person, except in his
            place of abode or fixed place of business, without a valid
            and lawfully issued license under this chapter commits a
            felony of the third degree.

18 Pa.C.S.A. § 6106(a)(1).       Section 6108 defines the offense of carrying

firearms on public streets in Philadelphia in relevant part as follows:

            § 6108. Carrying firearms on public streets or public
                 property in Philadelphia

            No person shall carry a firearm, rifle or shotgun at any
            time upon the public streets or upon any public property in
            a city of the first class unless:

               (1)   such person is licensed to carry a firearm….

18 Pa.C.S.A. § 6108(1).

          After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Giovanni O.

Campbell, we conclude Appellant’s sufficiency and weight issues merit no

relief.     The trial court opinion comprehensively discusses and properly

disposes of Appellant’s first two claims.       (See Trial Court Opinion, filed

November 14, 2016, at 6-10 partially unpaginated) (finding: police saw

Appellant exit vehicle, close door to vehicle, and walk around to passenger

side of vehicle; through vehicle window police observed gun inside vehicle in

plain view; police recovered from vehicle documents containing Appellant’s


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J-S45005-17


name; evidence showed Appellant was in possession and control of vehicle;

Appellant’s   nervous      behavior    and       denial      of   contact      with   vehicle

demonstrated     Appellant’s     consciousness          of   guilt;    under     totality   of

circumstances, evidence was sufficient to establish Appellant’s knowledge of

and   constructive      possession    of   gun     to     sustain     Appellant’s     firearm

convictions; VUFA verdicts were not contrary to evidence and did not shock

court’s sense of justice).        The record supports the court’s rationale.

Accordingly, concerning Appellant’s frist two issues, we affirm on the basis of

the trial court’s opinion.

      In his third issue, Appellant argues his speedy trial rights were violated

when trial commenced over a year after the Commonwealth filed its criminal

complaint.    Appellant contends the trial court incorrectly calculated the

number of days of delay attributable to Appellant.                    Appellant avers the

Commonwealth’s delay in timely completing a ballistics report was not

excusable. Appellant concludes the trial court should have granted his Rule

600 motion. We disagree.

      “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. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc), appeal denied,

583 Pa. 659, 875 A.2d 1073 (2005).

         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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           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 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.

Id. at 1238-39 (internal citations and quotation marks omitted).

     Rule 600 provides, in pertinent part:

        Rule 600. Prompt Trial

        (A)   Commencement of Trial; Time for Trial

                                 *    *      *

        (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.

Pa.R.Crim.P. 600(A)(2)(a). “Rule 600 generally requires the Commonwealth



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to bring a defendant…to trial within 365 days of the date the complaint was

filed.”    Hunt, supra at 1240.     To obtain relief, a defendant must have a

valid Rule 600 claim at the time he files his motion for relief. Id. at 1243.

          “The mechanical run date is the date by which the trial must

commence under Rule 600.” Commonwealth v. McNear, 852 A.2d 401,

406 (Pa.Super. 2004).

            It is calculated by adding 365 days (the time for
            commencing trial under Rule 600) to the date on which the
            criminal complaint is filed. The mechanical run date can
            be modified or extended by adding to the date any periods
            of time in which delay is caused by the defendant. Once
            the mechanical run date is modified accordingly, it then
            becomes an adjusted run date.

Id.

          In the context of Rule 600, “excludable time” is differentiated from

“excusable delay” as follows:

            “Excludable time” is defined in Rule 600(C) as the period
            of time between the filing of the written complaint and the
            defendant’s arrest, provided that the defendant could not
            be apprehended because his whereabouts were unknown
            and could not be determined by due diligence; any period
            of time for which the defendant expressly waives Rule 600;
            and/or such period of delay at any stage of the
            proceedings as results from: (a) the unavailability of the
            defendant or the defendant’s attorney; (b) any
            continuance granted at the request of the defendant or the
            defendant’s attorney. “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, supra at 1241 (internal citations and footnote omitted).


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         If the defense does indicate approval or acceptance of the
         continuance, the time associated with the continuance is
         excludable under Rule 600 as a defense request.
         Significantly,   when     the    defendant    signs     the
         Commonwealth’s motion for postponement and registers
         no objection to the postponement…the signed consent
         without objection can be interpreted as consent to the new
         date….

Id.   See also Commonwealth v. Peterson, 19 A.3d 1131, 1137

(Pa.Super. 2011) (en banc), affirmed, 615 Pa. 587, 44 A.3d 655 (2012)

(stating: “A joint continuance is excludable”).

      Delay caused by a co-defendant does not constitute excludable time.

Commonwealth v. Hill, 558 Pa. 238, 261-62, 736 A.2d 578, 590-91

(1999). Delay associated with a co-defendant may be excusable, however,

if the Commonwealth acted with due diligence and the delay was beyond its

control. Id. at 263, 736 A.2d at 591 (stating: “Even where a [speedy trial]

violation…has occurred, the motion to dismiss the charges should be denied

if the Commonwealth exercised due diligence and…the circumstances

occasioning   the   postponement      were   beyond    the   control   of   the

Commonwealth”) (internal quotation marks omitted).

      “Where a defendant is unrepresented and does not waive counsel, the

defendant is considered to be unavailable.” Commonwealth v. Anderson,

959 A.2d 1248, 1251 (Pa.Super. 2008).         “If an actual delay in the case

occurs because the defendant appears for proceedings in connection with his

case without defense counsel and such defendant is financially capable of

retaining counsel, the delay is excludable time.” Commonwealth v. Roles,

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116 A.3d 122, 127 (Pa.Super. 2015), appeal denied, 633 Pa. 786, 128 A.3d

220 (2015) (internal quotation marks omitted).

     Under Rule 600, “a defendant on bail who fails to appear at a court

proceeding, of which he has been properly notified, is deemed unavailable

from the time of that proceeding until he is subsequently apprehended or

until he voluntarily surrenders himself.”     Commonwealth v. Baird, 919

A.2d 258, 260 (Pa.Super. 2007), affirmed, 601 Pa. 625, 975 A.2d 1113

(2009).    “Absent exceptional circumstances…, notice to defense counsel

constitutes reasonable notice for the purpose of determining a defendant’s

unavailability under Rule 600.”     Commonwealth v. Baird, 601 Pa. 625,

635, 975 A.2d 1113, 1119 (2009).

     Generally, “delays caused by pretrial motions constitute excludable

time where the pretrial motion renders the defendant unavailable.”        Hill,

supra at 250, 736 A.2d at 585.

          However, the mere filing of a pretrial motion by a
          defendant does not automatically render him unavailable.
          Rather, a defendant is only unavailable for trial if a delay
          in the commencement of trial is caused by the filing of the
          pretrial motion. If a delay is created, in order 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.

Id. at 254-55, 736 A.2d at 587 (internal citations and footnote omitted).

          Due diligence is a fact-specific concept that must be
          determined on a case-by-case basis. Due diligence does
          not require perfect vigilance and punctilious care, but
          rather a showing by the Commonwealth that a

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        reasonable effort has been put forth.

Commonwealth v. Brown, 875 A.2d 1128, 1138 (Pa.Super. 2005), appeal

denied, 586 Pa. 734, 891 A.2d 729 (2005) (quoting Hunt, supra at 1241-

42) (emphasis in original). Further, the issuance of a writ ordering prison

authorities to bring a defendant to court demonstrates due diligence.

Commonwealth v. Mines, 797 A.2d 963, 965 (Pa.Super. 2002), appeal

denied, 571 Pa. 705, 812 A.2d 1229 (2002).

     Instantly, the Commonwealth filed the complaint against Appellant and

a co-defendant on June 21, 2014. Therefore, the initial Rule 600 mechanical

run date was June 21, 2015.    On July 8, 2014, and August 19, 2014, the

court granted co-defendant’s requests to continue the preliminary hearing,

which the court ultimately continued to September 11, 2014.     The record

indicates the Commonwealth appeared and was ready to proceed on both

July 8, 2014, and August 19, 2014. Thus, the delay between July 8, 2014,

and September 11, 2014, constituted 65 days of excusable delay.        See

Brown, supra; Hill, supra.      The adjusted trial run date for Rule 600

purposes became August 25, 2015.

     The parties appeared for the preliminary hearing on September 11,

2014. Upon second call of the list, however, Appellant had been returned to

custody and the Commonwealth’s police officer witnesses and co-defendant’s

counsel were unavailable.   The court continued the preliminary hearing to

October 3, 2014.   Nothing in the record suggests the Commonwealth was


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unable to proceed upon first call of the list on September 11th.      As the

Commonwealth had no control of the court’s schedule or its decision to delay

proceedings on September 11th, the delay between September 11, 2014,

and October 3, 2014, constituted 22 days of excusable delay. See Brown,

supra; Hill, supra.    The adjusted trial run date for Rule 600 purposes

became September 16, 2015.      Ultimately, Appellant’s preliminary hearing

occurred on October 3, 2014, when the Commonwealth severed Appellant’s

case from co-defendant’s case. On October 4, 2014, Appellant posted bail.

     At the arraignment on October 24, 2014, the court continued the

proceeding to allow Appellant to retain private counsel. On November 13,

2014, Appellant again received a continuance until December 4, 2014, to

obtain counsel.   The delay between October 24, 2014, and December 4,

2014, constituted 41 days of excludable time.    See Roles, supra; Hunt,

supra. The adjusted trial run date for Rule 600 purposes became October

27, 2015.

     On December 4, 2014, counsel entered an appearance on behalf of

Appellant.   That same day, counsel requested a continuance for further

investigation, which the court granted until December 18, 2014.           On

December 18, 2014, counsel again requested a continuance, which the court

granted until January 15, 2015. The delay between December 4, 2014, and

January 15, 2015, constituted 42 days of excludable time.       See id.   The

delay yielded an adjusted trial run date of December 8, 2015.


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     On January 15, 2015, Appellant failed to appear for a pretrial

conference. That same day, the court issued a bench warrant for Appellant

and revoked Appellant’s bail.   On January 29, 2015, Appellant returned to

custody, and the court lifted the bench warrant and rescheduled the pretrial

conference for February 26, 2015.     The delay between January 15, 2015,

and January 29, 2015, constituted 14 days of excludable time. See Baird,

supra; Hunt, supra.     The adjusted trial run date for Rule 600 purposes

became December 22, 2015. As the Commonwealth had no control over the

court’s schedule, the delay between January 29, 2015, and February 26,

2015, constituted 28 days of excusable delay. See id. The delay yielded an

adjusted trial run date of January 19, 2016.

     On February 26, 2015, prison authorities failed to bring Appellant to

court for a pretrial conference.     As a result, the court continued the

conference to March 26, 2015.      The record does not demonstrate a writ

ordering prison authorities to bring Appellant to court on February 26, 2015,

had been issued.    Therefore, the delay between February 26, 2015, and

March 26, 2015, does not constitute excludable time or excusable delay.

See Mines, supra.

     On March 26, 2015, prison authorities again failed to bring Appellant

to court, and the court continued the pretrial conference to May 5, 2015.

The record indicates the clerk of courts had prepared a writ ordering prison

authorities to bring Appellant to court on March 26, 2016. Thus, the delay


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between February 26, 2015, and May 5, 2015, constituted 40 days of

excusable time. See id. The adjusted trial run date for Rule 600 purposes

became February 28, 2016.

     At the pretrial conference on May 5, 2015, the Commonwealth

requested a continuance to complete a ballistics report. The court granted

the Commonwealth a continuance and scheduled trial for August 31, 2015.

The record indicates Appellant was unavailable for trial between August 17,

2015, and August 31, 2015.          When the Commonwealth requested a

continuance on May 5, 2015, Appellant’s case had been pending for nearly

two years. The record does not establish and the Commonwealth does not

explain why it had not completed a ballistics report prior to May 5, 2015.

Thus, the Commonwealth fails to meet its burden of establishing: (1) it

acted with due diligence in completing the ballistics report; and (2) its

inability to complete the report before May 5, 2015, was beyond its control.

See Hill, supra; Brown, supra.       The delay between May 5, 2015, and

August 17, 2015, did not constitute excludable time or excusable delay.

See Hill, supra.    The delay between August 17, 2015, and August 31,

2015, due to Appellant’s unavailability, however, constituted 14 days

excludable time. See Hunt, supra. The 14-day delay yielded an adjusted

trial run date of March 13, 2016.

     On August 31, 2015, the parties jointly requested a continuance. The

court granted the continuance and scheduled trial for November 3, 2015.


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    The delay between August 31, 2015, and November 3, 2015, constituted 64

    days excludable time. See Peterson, supra. The adjusted trial run date

    for Rule 600 purposes became May 16, 2016.             On November 3, 2015,

    Appellant filed several pretrial motions, including a Rule 600 motion. That

    same day, the court conducted a hearing on Appellant’s motions.          The

    Commonwealth appeared at the November 3rd hearing and opposed

    Appellant’s motions. The court continued trial to November 4, 2015. This

    delay amounted to 1 day of excludable time, and the adjusted trial run date

    became May 17, 2016. See Hill, supra.

           The following chart summarizes the delays prior to trial:

  DATES                 ACTIVITY                  DAYS     EXCLUDABLE    ADJUSTED
                                                  DELAY   OR EXCUSABLE   RUN DATE

7/8/14-      Preliminary hearing; Appellant’s 42          Excusable; co- 8/2/15
8/19/14      co-defendant          requested              defendant
             continuance.                                 requested
                                                          continuance;
                                                          Commonwealth
                                                          ready         to
                                                          proceed
8/19/14-     Preliminary hearing; Appellant’s 23          Excusable; co- 8/25/15
9/11/14      co-defendant’s    counsel   was              defendant’s
             unavailable.                                 counsel      was
                                                          unavailable;
                                                          Commonwealth
                                                          ready         to
                                                          proceed
9/11/14-     Preliminary    hearing;  police 22           Excusable;   all 9/16/15
10/3/14      officers    were    unavailable,             parties
             Appellant had been placed back               unavailable
             into     custody,    and    co-              upon     second
             defendant’s      counsel    was              call of court’s
             unavailable.                                 list


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10/24/14-   Arraignment; court continued 20       Excludable;       10/6/15
11/13/14    proceeding to permit Appellant        continuance to
            to retain private counsel.            permit
                                                  Appellant      to
                                                  retain counsel
11/13/14-   Arraignment;    court   granted 21    Excludable;     10/27/15
12/4/14     Appellant’s   request    for   a      Appellant
            continuance to retain counsel.        requested
                                                  continuance

12/4/14-    Defense      counsel   entered 14     Excludable;     11/10/15
12/18/14    appearance;      court granted        Appellant
            Appellant’s    request for   a        requested
            continuance to conduct further        continuance
            investigation.

12/18/14-   Court    granted     Appellant’s 28   Excludable;     12/8/15
1/15/15     request for a continuance to          Appellant
            conduct further investigation.        requested
                                                  continuance
1/15/15-    Pretrial conference; Appellant 14     Excludable;      12/22/15
1/29/15     failed to appear; court issued        Appellant failed
            bench warrant for Appellant.          to appear

1/29/15-    Bench warrant hearing; court 28       Excusable;        1/19/16
2/26/15     lifted bench warrant and set          court’s
            pretrial conference for 2/26/15.      rescheduling of
                                                  conference was
                                                  beyond control
                                                  of
                                                  Commonwealth
2/26/15-    Pretrial   conference;    court 28    No;     Appellant 1/19/16
3/26/15     continued conference because          not      brought
            Appellant was not brought down        down; no writ
            from custody.                         issued         on
                                                  record
3/26/15-    Pretrial   conference;    court 40    Excusable;      2/28/16
5/5/15      continued     case     because        Appellant   not
            Appellant was not brought down        brought down;
            from custody.                         clerk of courts
                                                  had issued writ



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5/5/15-      Pretrial    conference;    court 104     No;               2/28/16
8/17/15      granted         Commonwealth’s           Commonwealth
             request for a continuance.               requested
                                                      continuance
8/17/15-     Appellant unable to appear 14            Excludable;      3/13/16
8/31/15      between 8/17/15 and 8/31/15.             Appellant
                                                      unable        to
                                                      appear
8/31/15-     Pretrial   conference;    parties 64     Excludable;      5/16/16
11/3/15      jointly requested a continuance.         joint    request
                                                      for continuance
11/3/15-     Scheduled trial date; Appellant 1        Excludable;     5/17/16
11/4/15      filed several motions; court             Appellant filed
             conducted        hearing     on          several motions
             Appellant’s      motions    and          on          the
             continued trial to 11/4/15.              scheduled trial
                                                      date

           Appellant’s trial commenced on November 4, 2015, long before the

    adjusted run date of May 17, 2016.      Therefore, Appellant did not have a

    viable speedy trial claim before trial commenced, and his Rule 600 motion

    was premature. See Hunt, supra. Thus, Appellant’s third issue fails.

           In his fourth issue, Appellant argues the sentencing court imposed

    Appellant’s sentence based in part on the court’s belief Appellant had a

    violation of the Uniform Firearms Act (“VUFA”) conviction that predated the

    current offenses.    Appellant avers the court misconstrued the date of

    Appellant’s separate VUFA conviction. Appellant contends he was convicted

    of a distinct VUFA offense after the date of the current offenses. Appellant

    concludes the court imposed an excessive and unreasonable sentence.

    Appellant’s challenge is to the discretionary aspects of his sentence.   See

    Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super. 2002) (stating

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claim that sentence is manifestly excessive challenges discretionary aspects

of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.   Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

aspect of sentencing issue:

         We conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. 720; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the
         sentence appealed from is not appropriate under the
         Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal

denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.

Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727,

909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of

a sentence are waived if they are not raised at the sentencing hearing or in a

motion to modify the sentence imposed at that hearing. Commonwealth

v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759,

831 A.2d 599 (2003). Additionally, the failure to raise an issue in a court-

ordered Rule 1925(b) statement results in waiver of the issue on appeal.

Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal

denied, 594 Pa. 678, 932 A.2d 1287 (2007).


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      Our standard of review of a challenge to the discretionary aspects of

sentencing is as follows:

           Sentencing is a matter vested in the sound discretion of
           the sentencing judge, and a sentence will not be disturbed
           on appeal absent a manifest abuse of discretion. In this
           context, an abuse of discretion is not shown merely by an
           error in judgment. Rather, the appellant must establish,
           by reference to the record, that the sentencing court
           ignored or misapplied the law, exercised its judgment for
           reasons of partiality, prejudice, bias or ill will, or arrived at
           a manifestly unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).

      As a preliminary matter, Appellant did not object at sentencing, in his

post-sentence motion, and in his Rule 1925(b) statement on the ground that

his sentence is excessive and harsh because the court based the sentence

on, inter alia, Appellant having a VUFA conviction that predated the current

VUFA offenses. Instead, in his post-sentence motion, Appellant claimed the

sentence     exceeded     both    the   applicable    guideline   range    and     the

Commonwealth’s recommended sentence. (See Post-Sentence Motion, filed

1/21/16, at 3).      In his Rule 1925(b) statement, Appellant contended the

sentence was above the aggravated range, the court failed to consider all

relevant and necessary sentencing factors, and the court based the sentence

on impermissible information. (See Rule 1925(b) Statement, filed 6/20/16,

at 2-3, unpaginated; R.R. attached to Appellant’s Brief at B).                   Thus,



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Appellant waived his sentencing challenge for purposes of our review. See

Poncala, supra; Mann, supra.

      Moreover, even if Appellant had properly preserved his sentencing

issue, the record belies his contention. At sentencing, the court set forth its

rationale for imposing Appellant’s sentence as follows:

         THE COURT: For completeness, I’ll mark as Court-1
         [Appellant]’s secure criminal history, which indicates a
         disposition date of June 18, 2015, …of riot plan, using a
         firearm or weapon, felony of the third degree, as well as
         VUFA [Section] 6106.

         On November 11, 2014, …[Appellant] entered a guilty plea
         to submitting materially false statement in the purchase,
         delivery, or transfer of a firearm. There is a DUI that
         counsel has mentioned with a disposition of the same date.
         And finally, we have the present conviction[s] for VUFA
         under [Sections] 6106 and 6108.

         I’ve considered the arguments of both counsel, the
         presentence    [investigation] report, the sentencing
         guidelines form in this case.

                                  *     *      *

         I’ve considered the arguments of both counsel, the
         sentencing guidelines form in this case, the facts and
         circumstances of the offense, [Appellant]’s criminal record,
         …the Commonwealth’s sentencing memorandum.

                                  *     *      *

         So in addition to everything              else,   I’ve   considered
         [Appellant]’s allocution.

         I’ll consider as a mitigating factor…[Appellant]’s completion
         of that program while he’s in custody.

         But I find aggravating factors in this case that justify a
         sentence that’s above the guidelines—call for it, as a

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J-S45005-17


         matter of fact.

         Overall, the guidelines in this case fail to fully represent
         [Appellant]’s criminal history. That includes, but is not
         limited to, his history of absconding, which demonstrates,
         if nothing else, that he’s not a good candidate for
         supervision, [Appellant]’s attempts to procure a firearm
         after he had already had a conviction for VUFA. That’s
         most telling.     And it confirms the comment on the
         presentence [investigation] report that he shows a
         persistence to carry firearms.

         There’s no question that VUFA violations are repeated in
         [Appellant]’s relatively short criminal history. ….

(N.T. Sentencing Hearing, 1/20/16, at 18-22).

      At sentencing, the court did not state Appellant had VUFA convictions

at the time he committed the current offenses. Rather, the court noted the

Appellant’s criminal record demonstrated Appellant had a history of carrying

firearms. Therefore, even if Appellant had properly preserved his sentencing

claim, he would not be entitled to relief. See Hyland, supra. Accordingly,

we affirm.   See generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d

1244, 1246 n.3 (2007) (stating where issues are waived on appeal, we

should affirm).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017


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