J-S20009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

JERRY PRATT

                            Appellant                 No. 639 WDA 2015


                     Appeal from the Order March 18, 2015
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0003073-2013


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                                  FILED MAY 05, 2016

        Appellant, Jerry Pratt, appeals from his judgment of sentence entered

by the Court of Common Pleas of Washington County, following his

convictions for theft by deception and access device fraud. In this appeal, we

consider whether the Commonwealth violated Pratt’s Rule 600 rights. We

affirm.

        The trial court summarized the relevant factual and procedural history

as follows.

        [A] criminal complaint was filed against the Defendant on May
        15, 2013. A preliminary hearing was scheduled before the
        Magisterial District Justice, James Ellis, for June 4, 2013. That
        hearing was continued by the Commonwealth. The next hearing
        date was to be on September 10, 2013[,] but, according to the
        electronic docket, it was continued at the Defendant’s request.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     The next hearing was scheduled for November 19, 2013, which
     was also continued at the Defendant’s request according to the
     electronic docket. The record also contains a letter signed by the
     Defendant requesting a continuance of the November 19, 2013
     hearing. Therefore, it was rescheduled to December 17, 2013.
     On December 17, 2013, the Defendant had his preliminary
     hearing before Magisterial District Justice, James Ellis. The
     Defendant appeared by video from the Allegheny County Jail
     (ACJ) and decided to waive his case to court.

     When the Defendant decided to waive his case to court, he had
     been incarcerated at the ACJ since July 17, 2013. Allegheny
     County authorities had charged him with identity theft and theft
     of services for crimes committed in that County. A non-jury trial
     was scheduled for January 15, 2014 on the Allegheny County
     charges, but the Defendant pled guilty. A sentencing hearing
     took place before Judge Edward Borkowski on January 23, 2014,
     at which time he was sentenced. The sentence was for nine to
     eighteen months, plus an additional two years of probation. The
     Defendant was given 191 days of credit toward his minimum
     sentence of nine months.

     After the Defendant’s sentencing by Judge Borkowski, he was
     transported to a federal prison named FCI Cumberland, which is
     in Ohio. This was due to federal probation violations. There was,
     however, no record from the Commonwealth or the Federal
     government about the date the Defendant was released to FCI
     Cumberland. The Defendant testified that he was released from
     the ACJ to Cumberland on February 26, 2014. That being said,
     the Court will use February 26, 2014 as the date the Defendant
     was transferred to FCI Cumberland.

     Chief Detective James McElhaney (detective) testified that he
     learned from Assistant District Attorney, Jerome Moschetta, on
     July 30, 2014 that the Defendant was at a federal corrections
     institution in Cumberland. The detective testified that Denise
     Buterbaugh of FCI Cumberland responded to his inquiry on
     August 1, 2014, and informed him that the Defendant was
     housed at said facility but was scheduled to be released from
     their custody to ACJ on September 26, 2014. To ensure the
     Defendant’s appearance in Washington County, a detainer was
     lodged against the Defendant and a copy was faxed to FCI
     Cumberland. Nevertheless, the FCI Cumberland officials
     informed the detective that the Defendant would not be released

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     to anyone but Allegheny County; obviously, the Defendant’s
     minimum sentence of nine months was not yet completed on the
     identify theft and theft of services charges.
     The detective contacted the ACJ on September 29, 2014 about
     the Defendant being in their custody. Their response was that he
     was not in their custody. He called the ACJ on September 30 as
     well, but was again told he was not in their care. Further, the
     detective testified that the Allegheny County District Attorney’s
     office informed him that they had until October 10, 2014 to
     secure the Defendant FCI Cumberland [sic] and that it would be
     a “long time before Washington County” got the Defendant” due
     to him needing to deal with Allegheny County charges. The
     detective’s next communication with the ACJ was on November
     25, 2014, at which time they verified the Defendant was in their
     care. Consequently, the Court arranged a video hearing with the
     ACJ for December 16, 2014 to determine how the Defendant
     wanted to proceed on the charges.

     The Defendant appeared on that date before this Court. It was
     learned that the Defendant had attempted to contact the
     Washington County Public Defenders’ Office but was
     unsuccessful. Therefore, the Defendant did not want to proceed
     and the Court issued an order directing that office [sic] contact
     the Defendant and scheduled a pre-trial conference for January
     30, 2015. At that hearing, the Defendant requested a
     continuance due to on-going plea negotiations. The Court
     rescheduled the matter for a pre-trial conference on March 6,
     2015. However, the Defendant then filed a Rule 600 motion on
     February 6, 2015.

Order, 3/18/15, at 1-3.

     The trial court denied Pratt’s Rule 600 motion after holding a pre-trial

hearing. Thereafter, a non-jury trial was held, and Pratt was convicted of

theft by deception and access device fraud. The trial court subsequently

imposed a sentence of 1 year less 1 day to 2 years less 2 days’




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imprisonment for theft by deception, plus 3 years of concurrent probation for

access device fraud.1 This timely appeal followed.

        On appeal, Pratt contends that the trial court erred in denying his Rule

600 motion, thus violating his right to a speedy trial. Specifically, Pratt

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 11-16.

        Rule 600 requires the Commonwealth to bring a defendant to trial

within 365 days of the filing of the criminal complaint. See Pa.R.Crim.P.

600(A)(2)(a).2 Our scope and standard of review on this issue are as follows.

        Our standard of review relating to the application of Rule 600 is
        whether the trial court abused its discretion. 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.

Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006)

(citation omitted).

        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
____________________________________________


1
    Pratt was also ordered to pay restitution.
2
 The parties in this case analyzed the speedy trial rule under this section, so
we will do the same.



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      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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      Mere incarceration in another state does not automatically make a

defendant     unavailable   within   the   meaning     of   Rule   600.    See

Commonwealth v. Kubin, 637 A.2d 1025, 1026 (Pa. Super. 1994). “A

defendant is only unavailable if the delay in returning him to Pennsylvania is

due to the other state causing the delay; the prosecution, however, must

exercise due diligence in attempting to bring the defendant back for trial.”

Id. (citation omitted).

      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-case basis. See id. “Due diligence does not require

perfect vigilance and punctilious care, but rather a showing by the

Commonwealth that a reasonable effort has been put forth.” Id., at 1241-

1242 (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.

      In the instant case, the Commonwealth filed its complaint on May 15,

2013. Thus, the mechanical run date was May 15, 2014. Pratt had not been

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brought to trial when he filed his motion to dismiss on February 6, 2015. On

September 10, 2013, Pratt requested that his preliminary hearing be

continued.     On   October     15,    2013,     the   Commonwealth   requested   a

continuance. Pratt requested another continuance on November 19, 2013.

The preliminary hearing was held on December 17, 2013. The 35-day period

between September 10, 2013 and October 15, 2013 is excludable pursuant

to Rule 600(C), as is the 28-day period between November 19, 2013 and

December 17, 2013. Addition of 63 days of excludable time results in an

adjusted run date of July 17, 2014.

        According to the record, the Commonwealth was not aware of Pratt’s

incarceration at FCI Cumberland until July 30, 2014. This Court has

previously held that a defendant is “unavailable” within the meaning of Rule

600 when he is incarcerated in another jurisdiction and the Commonwealth

is unaware of his whereabouts. Commonwealth v. Haynes, 488 A.2d 602,

605 (Pa. Super. 1985).3 Thus, the 154-day period between February 26,

2014 and July 30, 2014 is excludable under Rule 600(C). Addition of 154

days of excludable time results in an adjusted run date of December 18,

2014.

        Once Detective McElhaney became aware of Pratt’s incarceration at

FCI Cumberland, he contacted the officials at FCI Cumberland and expressed

____________________________________________


3
  Haynes was decided when Rule 600 was known as Rule 1100.
Nevertheless, the analysis remains the same.



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the desire to extradite Pratt. Detective McElhaney was told that Pratt would

not be available for extradition until after he completed his sentence at FCI

Cumberland. He was also told that Pratt would not be released to any

authority other than ACJ. Nevertheless, Detective McElhaney filed a detainer

on August 12, 2014. After reviewing the efforts of Detective McElhaney, the

trial court found that the time from when the Commonwealth discovered

Pratt’s whereabouts, July 30, 2014, to when Pratt was delivered to ACJ,

October 10, 2014, was excludable. See Rule 600, Comment (“[T]he

defendant should be deemed unavailable for the period of time during which

the defendant contested extradition, or a responding jurisdiction delayed or

refused to grant extradition.”) (emphasis added). We see no abuse of

discretion in the court’s decision. See Commonwealth v. McNear, 852

A.2d 401, 407 (Pa. Super. 2004). Addition of 72 days of excludable time

results in an adjusted run date of February 28, 2015. Since Pratt filed his

Rule 600 motion on February 6, 2015, the trial court properly denied his

Rule 600 motion.4

       Judgment of sentence affirmed. Jurisdiction relinquished.




____________________________________________


4
  Because it is clear that Pratt filed his Rule 600 motion before the extended
run date, we need not analyze the entire record to determine whether the
final run date is February 28, 2015 or some later date. See Hyland, 875
A.2d at 1189.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2016




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