J-S36044-16

                                  2016 PA Super 111



COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

THERION WATSON,

                            Appellant                 No. 1134 MDA 2015


           Appeal from the Judgment of Sentence February 14, 2014
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0004265-2011

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                             FILED MAY 26, 2016

       Therion Watson (“Appellant”) appeals from the judgment of sentence

entered in the Court of Common Pleas of Dauphin County, which, sitting as

finder of fact in Appellant’s non-jury trial, convicted him of Robbery,

Conspiracy to Commit Robbery, Burglary, Conspiracy to Commit Burglary,

and Possession of a Firearm Prohibited.1 Appellant contends herein that the

court erred in dismissing his Motion for Relief pursuant to Pennsylvania Rule

of Criminal Procedure 600. We affirm.

       The trial court provides an apt summary of relevant case history as

follows:
      Appellant was arrested in connection with the attack and robbery
      of one Terry Pullen on November 11, 2010.             Mr. Pullen
____________________________________________


1
  18 Pa.C.S. §§ 3701(a)(1)(ii), 903(c), 3502(a), 903(c), and 6105(a)(1),
respectively.



*Former Justice specially assigned to the Superior Court.
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     approached Officer Deborah Ewing of the Harrisburg Bureau of
     Police, who had been on patrol in a marked vehicle at
     approximately 11:53 p.m. that night. Mr. Pullen reported that
     two black males approached him outside of his rooming house as
     he returned from work as a taxicab driver. He said that the
     males forced him into his room at gun point and demanded he
     open his safe where he kept cash and personal papers. When he
     refused to open the safe, one of the men hit him in the head
     with a hammer. Mr. Pullen was able to escape the men and flee
     the rooming house, which is when he encountered Officer Ewing.
     Mr. Pullen gave Officer Ewing a report of the incident and a
     description of the perpetrators.
            Detective Heffner of the HBP investigated the matter and
     determined that Appellant was one of the suspects in the
     robbery. After several months of searching for Appellant to no
     avail, Detective Heffner filed a criminal complaint and obtained
     an arrest warrant on June 15, 2011. Subsequently, on July 30,
     2011, Appellant was located in North Carolina when he was
     arrested by police when he was operating a vehicle that had
     been reported stolen. After Appellant waived extradition and the
     criminal proceeding in North Carolina was concluded, he was
     transported back to Pennsylvania.        Appellant appeared for
     preliminary arraignment at a Night Court session on September
     6, 2011.     Appellant, who was represented by an attorney,
     waived his preliminary hearing on October 17, 2011, and was
     formally arraigned on December 15, 2011. As stated above,
     Appellant did not stand trial until December 9, 2013.

           ***

            Pre-trial, Appellant claimed that all of his criminal charges
     should be dismissed with prejudice as the Commonwealth has
     violated Pa.R.Crim.P. 600 by not bringing him to trial within
     365(A)(2)(a).       The Commonwealth countered Appellant’s
     assertion by contending that most of the elapsed time between
     the filing of the criminal complaint and the commencement of
     trial was excludable and/or excusable as it is attributable to the
     Appellant’s own actions. The Commonwealth also argued that
     he had waived his “speedy trial” right by way of his legal
     counsel. Th[e trial court] disagreed with Appellant’s position and
     denied his Motion.

           ***


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              [The trial court thereafter] commenced a waiver
      trial.[]..That same day, [the trial court] found Appellant guilty of
      all charges and deferred sentencing to February 14, 2014, for
      the preparation of a Pre-Sentence Investigation. Appellant was
      sentenced [to an aggregate sentence of not less than one-
      hundred twenty months nor more than two-hundred forty
      months’ incarceration plus fines and costs. This timely appeal
      followed.]

Trial Court Opinion, filed May 30, 2014, at 3-4, 2.

      Appellant presents one question for our review:

      Whether the trial court erred in denying Appellant’s Motion for
      Relief Pursuant to Pennsylvania Rule of Criminal Procedure 600?

Appellant’s brief at 4.

      Our standard and scope of review in analyzing a Rule 600 issue are

both well-settled.

      In evaluating Rule 600 issues, our standard of review of a trial
      court's decision is 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.
            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


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J-S36044-16


        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.
        In considering these matters ..., courts must carefully factor into
        the ultimate equation not only the prerogatives of the individual
        accused, but the collective right of the community to vigorous
        law enforcement as well.

Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa.Super. 2011),

aff'd, 615 Pa. 587, 44 A.3d 655 (2012).

        Rule 600 provides, in pertinent part, that “[t]rial 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).      For purposes of computing when trial must commence,

“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…. Any other periods of delay shall be excluded from the

computation.” Pa.R.Crim.P. 600(C)(1).

        There is no dispute that Appellant was brought to trial 908 days after

the criminal complaint against him was filed, well beyond the 365-day

mechanical run date contemplated in Rule 600(A)(2)(a).2 Of the 908 days,
____________________________________________


2
    For purposes of Rule 600, the “mechanical run date”:

        is the date by which the trial must commence under Rule [600].
        It is calculated by adding 365 days (the time for commencing
(Footnote Continued Next Page)


                                           -4-
J-S36044-16



however, the trial court, pursuant to Rule 600(C)(1), excluded over 700

from the computation of time in which trial was required to commence

because such delay was attributable solely to defense counsel requests for

continuances. As such, the trial court concluded that trial commenced prior

to the adjusted run date and, accordingly, in compliance with Rule

600(A)(2)(a).

        Appellant contends that the first 21 days after his August 15, 2011,

waiver of extradition plus an additional 177 thereafter 3—a total of 198

days—are attributable to the Commonwealth.         In an apparent concession

that the Commonwealth’s conduct during such period did not contribute to

the belated commencement of his trial, Appellant transitions his argument

abruptly to posit that it was incumbent upon the Commonwealth to object to

defense counsel’s serial requests for continuance and demand that Appellant

be presented for trial as the mechanical run date drew near.         In similar

fashion, Appellant also contends that it was error for the trial court to



                       _______________________
(Footnote Continued)

        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.

Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa.Super. 2003).
3
    The Commonwealth accepts responsibility only for the 177 days’ delay.



                                            -5-
J-S36044-16



attribute to him the remaining 700-plus days’ delay comprising 17 defense

requests for continuance when he never authorized these continuances.

       Addressing Appellant’s claim of trial court error first, we observe that

he directs us to no authority, and we are aware of none, to support his

contention that counsel must obtain a defendant’s permission prior to

requesting a continuance.4           To the contrary, we have recognized that

“[c]ontinuances are a matter of sound trial strategy within the reasonable

purview of counsel.” Commonwealth v. Wells, 521 A.2d 1388, 1391-92

(Pa.Super. 1987) (holding trial counsel has authority to agree to a

continuance without the defendant’s knowledge and consent).         Appellant’s

claim of trial court error is without merit.

       Likewise, Appellant fails to develop any argument, let alone one

substantiated by authority, to advance the theory that the Commonwealth

may be held accountable for delay caused by defense continuances.          Our

jurisprudence has suggested the opposite. See, e.g., Commonwealth v.

Hunt, 858 A.2d 1234, 1244 (Pa.Super. 2004) (holding dismissal under Rule

600 unwarranted where most circumstances occasioning postponement—

____________________________________________


4
   To the extent Appellant’s argument may be construed as alleging
ineffective assistance of trial counsel, he must defer such a claim to PCRA
review. See Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013)
(stating Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) remains
pertinent law for timing of review for claims of ineffective assistance of
counsel).




                                           -6-
J-S36044-16



primarily defense continuances--were beyond control of Commonwealth).

Moreover, there is no indication in the record that the Commonwealth

engaged in dilatory practices either necessitating or contributing to the

continuances in question.   Given the provision in Rule 600(C)(1) that any

delay other than that caused by the Commonwealth’s lack of due diligence in

bringing the case to trial shall be excluded from the computation of time

within which trial must commence, we find no error with the Rule 600

computation of time below that excluded delay attributable to defense

continuances over which the Commonwealth exercised no influence or

control.

      Judgment of sentence is AFFIRMED.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2016




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