J-S40032-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                Appellee                   :
                                           :
                   v.                      :
                                           :
BRIAN HESS,                                :
                                           :
                Appellant                  :   No. 62 WDA 2015

     Appeal from the Judgment of Sentence Entered December 4, 2014,
              in the Court of Common Pleas of Fayette County,
           Criminal Division, at No(s): CP-26-CR-0000615-2012

BEFORE:     FORD ELLIOTT, P.J.E., DONOHUE, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                FILED SEPTEMBER 18, 2015

      Brian Hess (Appellant) appeals from the judgment of sentence entered

after and a jury convicted him for possession of child pornography.

Specifically, Appellant challenges the denial of his motion to dismiss filed

pursuant to Pa.R.Crim.P. 600. We vacate the judgment of sentence, reverse

the trial court’s order, and discharge Appellant.

      On February 16, 2012, following the execution of a search warrant on

his residence, Appellant was arrested and charged with various crimes

stemming from the discovery of child pornography on his personal computer.

On May 6, 2013, Appellant entered into a guilty plea, which he subsequently

moved to withdraw. On August 20, 2013, the trial court granted Appellant’s

request.   By order dated August 23, 2013, the trial court directed the

Commonwealth to list Appellant’s case for trial.



*Retired Senior Judge assigned to the Superior Court.
J-S40032-15


        The trial court’s docket reflects that, on October 1, 2013, Appellant’s

case was placed on the call of the list for June 30, 2014, with an anticipated

trial date of July 7, 2014. No continuance requests for either party appear

of record. On July 16, 2014, the matter was rescheduled for the July 28,

2014 call of the list, with an anticipated trial date of August 4, 2014. Again,

the record is devoid of any requests for a continuance by either party. On

August 12, 2014, Appellant’s case was scheduled for the September 2, 2014

call of the list, with an anticipated trial date scheduled for September 8,

2014.

        On August 21, 2014, Appellant, through counsel, filed a motion to

dismiss pursuant to Pa.R.Crim.P. 600. On September 24, 2014, following a

hearing, the trial court denied Appellant’s motion. The case was once more

listed for trial.   On October 8, 2014, following a jury trial, Appellant was

found guilty of the aforementioned offense.          On December 4, 2014,

Appellant was sentenced to a term of nine to 24 months of incarceration.

Appellant timely filed a post-sentence motion, seeking modification of his

sentence, which was denied by the trial court on December 30, 2014. This

timely appeal followed. Both Appellant and the trial court complied with the

mandates of Pa.R.A.P. 1925.

        Appellant raises the following issues on appeal, which we have

reordered for ease of disposition: (1) whether the trial court erred in failing




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to grant Appellant’s Rule 600 motion; (2) whether the evidence was

sufficient to support Appellant’s conviction; (3) whether the trial court erred

in failing to suppress the evidence recovered during the search of Appellant’s

home; and (4) whether the trial court erred in failing to grant Appellant’s

requests for a mistrial. Appellant’s Brief at 7.

      We begin with Appellant’s challenge to the trial court’s denial of his

motion to dismiss.1,2 Appellant’s Brief at 22-23.


1
   It bears noting that, prior to the withdrawal of Appellant’s guilty plea, on
July 1, 2013, a revised version of Pa.R.Crim.P. 600 took legal effect. See
Pa.R.Crim.P. 600 comment. By virtue of his guilty plea and the imposition of
a fresh 365-day period in which to try him, see Pa.R.Crim.P. 600(a)(2)(d)
and Comment, Appellant is thus subject to the revised version of the Rule.
See Commonwealth v. Corbin, 568 A.2d 635, 636 n.4 (Pa. Super. 1990)
(holding that Corbin’s case was to be evaluated under the amended version
of the speedy trial rule where, during the pendency of the case, the
legislature amended the rule, effective immediately). Appellant’s motion was
filed, and analyzed, under the revised version of the Rule. However, as this
case involves examining whether the Commonwealth exercised due
diligence, our result would be the same under either version of the Rule.
2
 Rule 600 sets forth the speedy trial requirements and provides in pertinent
part, as follows.

      Rule 600. Prompt Trial

      (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.



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           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)

                                     ***

                    (d) When a trial court has granted a new
                    trial and no appeal has been perfected,
                    the new trial shall commence within 365
                    days from the date on which the trial
                    court’s order is filed.

                                     ***

     (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.




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     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.
     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. Horne, 89 A.3d 277, 283-84 (Pa. Super. 2014) (citation

omitted).

     Further,

     [i]f the Commonwealth exercised due diligence and the delay
     was beyond the Commonwealth’s control, the motion to dismiss
     shall be denied. The Commonwealth must do everything
     reasonable within its power to guarantee that a trial begins on
     time, and the Commonwealth has the burden of demonstrating
     by a preponderance of the evidence that it exercised due
     diligence. As has been oft stated, due 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. Colon, 87 A.3d 352, 359 (Pa. Super. 2014).

     The trial court addressed Appellant’s Rule 600 claim as follows.

          The mechanical run date in this case is August 20, 2014,
     365 days after [Appellant] was allowed to withdraw his guilty



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     plea.    There is no excludable time since no motions or
     continuances were filed on his behalf. Under Rule 600, the
     Commonwealth now bears the burden to demonstrate that it
     exercised due diligence and the delay was beyond its control.
     Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014).
     The Commonwealth posits that it demonstrated due diligence in
     that it was ready to bring the matter to trial in both July and
     August 2014, but the prosecuting officer, retired Pennsylvania
     State Trooper Donald Lucas, was unavailable in either month.

            At [a] hearing held on August 27, 2014, the
     Commonwealth presented the testimony of Nicki Todaro, the
     victim witness coordinator employed by the District Attorney’s
     office. Her duties are to call the victims and the witnesses for
     criminal court. Ms. Todaro stated that this instant case had been
     certified as one of the first fifteen cases for trial during the
     August [2014] term of criminal court, which in Fayette County, is
     held from Monday until Friday during the first full week of every
     calendar month. Ms. Todaro then testified that she contacted
     Trooper Lucas on the Friday night, August 1, 2014, prior to the
     start of August criminal court week, to inform him of the trial.

           Former Trooper Lucas testified [that] Ms. Todaro made
     contact with him by telephone on Friday before court week, but
     he could not recall the date. The [c]ourt now takes judicial
     notice of the calendar which establishes that the date was
     Friday, August 1, 2014, and the August session of criminal court
     week ran from Monday, August 4, to Friday, August 8. Trooper
     Lucas told Ms. Todaro that he would not be able to attend a trial
     during criminal court week in August because he was leaving on
     Sunday for a prepaid vacation in North Carolina that had been
     planned since October of 2013. He further testified that neither
     Ms. Todaro nor anyone else from the Fayette County District
     Attorney’s office had ever contacted him earlier about the trial in
     this matter, not in May, June or July, 2014. He was not put on
     notice of any kind to prepare to come to the Fayette County
     Court of Common Pleas. After consulting his calendar, the
     former trooper said he was out of town on business in July 2014,
     but would have been available in June. Former Trooper Lucas
     did not initiate any contact with the District Attorney’s office to
     advise the prosecutor that he would not be available for either
     the July or August term of court because he never received a



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     subpoena in any month, despite Ms. Todaro’s assertion that she
     mailed one to his home address.

                                    ***

            As stated above, the Commonwealth bears the burden of
     proving that it has been duly diligent when it fails to meet the
     365-day mandate of Rule 600.          While there is no obvious
     misconduct in the record here, the [c]ourt notes that the
     Commonwealth offered no explanation as to why this
     uncomplicated case, with a computer record and one prosecuting
     police officer as a witness, was not called for trial within a month
     of two of the withdrawal of [Appellant’s] guilty plea or at any
     time thereafter. The [c]ourt takes judicial notice that during the
     months of May, June and July 2014, the District Attorney
     reported to the [c]ourt on Wednesday, and again on Thursday,
     of criminal court week that he had no additional cases to be
     tried, thus causing the [c]ourt to dismiss the jury venire panel
     much earlier than anticipated, said panel having been
     summoned for the entire week, leaving the [c]ourt with unused
     potential trial time.

             As conceded by the Commonwealth at the hearing on this
     matter, the list of cases ready to be tried are, at the sole
     discretion of the District Attorney Jack Heneks, not put on the
     trial list until they are due to expire within the next sixty days.
     Thus, if, as here, an indispensable witness is unavailable during
     one or both of the criminal court weeks covered by the trial list,
     the probabilities are greatly increased that the defendant will be
     tried outside of the 365-day Rule 600 requirement. Of particular
     note is the court practice, pursuant to local rule, to call the trial
     list in open court on Monday of the week preceding criminal
     court week, e.g., at least seven days prior to the first criminal
     cases being tried during any particular criminal court session.
     On June 30, 2014, and again on July 28, 2014, the District
     Attorney reported that this case as ready for trial to begin during
     the upcoming week.          Obviously, had the District Attorney
     exercised any degree of diligence, he would have been, and
     certainly should have been, alerted to the essential witness’s
     impending vacation.




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             Meanwhile, the Commonwealth claims the situation is
      beyond its control and casually places the blame on the witness.
      Likewise, the Commonwealth failed to offer any reason for its
      usual practice of having Ms. Todaro call the necessary witnesses
      on the Friday afternoon prior to the start of criminal trial week
      on the following Monday, less than seventy-two hours later.
      Such conduct is especially questionable in light of the looming
      mechanical run date and the Commonwealth’s seeming inability
      to ensure that the subpoenas it sends are actually received by
      the persons they are intended to reach.                Further, the
      Commonwealth presented no evidence to show that it has
      subpoenaed former Trooper Lucas, or ascertained whether he
      will be available, to testify during the next session of the criminal
      court week, scheduled to be held from October 6th through the
      10th, 2014, as it appears on the court calendar published in the
      autumn of 2013.

            Nevertheless, despite the obvious inefficiencies and
      shortcomings of the methodology employed by the District
      Attorney’s office relative to the Rule 600 mandate, [the c]ourt is
      mindful of the public’s right to be protected from those who
      commit crimes, and the impingement on [Appellant’s] right to a
      speedy trial here is de minimus. The [c]ourt, therefore, is
      constrained to find that the Commonwealth was duly diligent
      under the circumstances of this case.

Trial Court Opinion, 9/24/2014, at 1-5 (citations omitted).

      The trial court erred in denying Appellant’s motion despite finding that

the Commonwealth violated the mandates of Rule 600 by failing to exert

reasonable efforts to bring Appellant to trial within 365 days. That Appellant

was eventually tried on the next trial term is immaterial to our analysis.

Contrary to the trial court’s belief, there exists no de minimus exception to

Rule 600 compliance. Moreover, Appellant does not need to prove he was




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prejudiced by the Commonwealth’s error.       We find instructive this Court’s

discussion of a similar factual scenario in Colon:

      [o]ur Supreme Court has made clear … that where, as here, our
      speedy trial decision turns solely on whether the Commonwealth
      exercised due diligence, we need not consider whether there
      exists misconduct on the part of the Commonwealth in an effort
      to evade the fundamental speedy trial rights of an accused.
      Rather, due diligence is the applicable standard as prescribed in
      Rule 600(G). In light of the absence of any evidence showing
      that the Commonwealth made reasonable efforts to bring
      [Colon] to trial within 365 days, the Commonwealth’s lack of due
      diligence in this case warrants dismissal of the charges under the
      express requirements of Rule 600.

                                     ***

            Furthermore, although the trial court determined that
      [Colon] suffered no prejudice as a result of the delay, failure to
      show prejudice does not preclude [Colon] from obtaining relief
      under Rule 600. When evaluating Rule 600, there need be
      no discussion of whether a defendant is prejudiced
      because prejudice is shown simply by proving that the
      defendant suffered 365 days of non-excludable pretrial
      delay under facts showing that the Commonwealth did not
      exercise due diligence.

Colon, 87 A.3d at 360-61 (citations and footnote omitted; emphasis added).

      Based on our review of the record, we find that a Rule 600 violation

occurred as a result of the Commonwealth’s failure to exercise due diligence

to bring this matter to trial within 365 days of the withdrawal of Appellant’s

guilty plea. Thus, we hold that the trial court erred in denying Appellant’s




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Rule 600 motion. Accordingly, we reverse the trial court’s order, vacate the

judgment of sentence, and discharge Appellant.3

      Judgment of sentence vacated. Order reversed. Appellant discharged.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/18/2015




3
  Because we conclude that the charges against Appellant should have been
dismissed for violation of Pa.R.Crim.P. 600, we need not address Appellant’s
remaining issues.


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