J-S49041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PEDRO LOPEZ

                            Appellant                   No. 317 EDA 2014


      Appeal from the Judgment of Sentence entered December 7, 2012
               In the Court of Common Pleas of Monroe County
              Criminal Division at No: CP-45-CR-0001966-2009


BEFORE: OLSON, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 14, 2014

       Appellant, Pedro Lopez, appeals nunc pro tunc from the judgment of

sentence entered on December 7, 2012 in the Court of Common Pleas of

Monroe County.1 Following review, we affirm.

       The trial judge, the Honorable Stephen M. Higgins, summarized the

facts and procedural history of this case as follows:

             On December 21, 2009, the Commonwealth filed the
       Information charging the Appellant with Retail Theft, Conspiracy
       and Receiving Stolen Property.

            On February 23, 2010, following the Appellant’s failure to
       appear for a hearing, a bench warrant was issued. The Appellant
       was subsequently incarcerated in New Jersey. A copy of the

____________________________________________


1
 The order appealed is dated December 6, 2012, but was filed on December
7, 2012.
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       bench warrant was given to New Jersey as notice of a
       Pennsylvania Detainer.

             On or about May 4, 2012, the Appellant was returned to
       the custody of Pennsylvania and the bench warrant was lifted.

              On July 3, 2012, the Appellant filed a Motion for Rule 600
       Relief and a hearing was scheduled.[2]

            On August 1, 2012, following a hearing on the Rule 600
       Motion, the Honorable President Judge Margherita Patti
       Worthington entered an order denying the same.

              On September 11, 2012, a jury found the Appellant guilty
       of all charges.

            On December 6, 2012, we sentenced the Appellant and
       determined that the Appellant was ineligible for the RRRI
       program owing to a prior [] robbery conviction.[3]

                                       ***

             The Appellant did not file a Notice of Appeal at this time.
       However, the Appellant subsequently filed a Post-Conviction
       Relief Act Petition seeking reinstatement of his right to appeal.
       President Judge Worthington conducted a hearing on the Petition
       and granted relief. The Appellant’s direct appeal rights were
       reinstated on December 20, 2013.

            On January 17, 2014, the Appellant filed a Notice of Appeal
       and we directed him to file a Concise Statement within twenty-
       one days. On February 12, 2014, the Appellant filed his Concise
       Statement, but did not serve a copy on this Court as required by

____________________________________________


2
  Pa.R.Crim.P. 600 was amended effective July 1, 2013. All references to
Rule 600 in this Memorandum relate to the version of the rule in effect prior
to July 1, 2013.
3
 “RRRI”, the Risk Reduction Recidivism Incentive Program, is codified at 61
Pa.C.S.A. §§ 4501-4512.




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       Pa.R.A.P. 1925(b)(1). We were served with the Appellant’s
       Concise Statement on May 2, 2014.[4]

Trial Court Opinion (“T.C.O.”), 5/19/14 at 1-2.

       Appellant presents two issues for our consideration:

       1. Was it erroneous for the lower court to dismiss Appellant’s
          Motion to Dismiss Pursuant to Pennsylvania Rule of Criminal
          Procedure 600 since the Commonwealth failed to establish it
          exercised reasonable diligence in bringing Appellant to trial[?]

       2. Did the trial court err in deeming Appellant ineligible for the
          Recidivism Risk Reduction Incentive program since Appellant
          was never convicted of an offense that would render him
          automatically ineligible for the program[?]

Appellant’s Brief at 6.

       In his first issue, Appellant challenges the trial court’s ruling on his

Rule 600 motion. For purposes of our review, the relevant provisions of the

rule are as follows:

       (A)(3) Trial in a court case in which a written complaint is filed
       against the defendant, when the defendant is at liberty on bail,
       shall commence no later than 365 days from the date on which
       the complaint is filed.

____________________________________________


4
  The trial court issued its 1925(b) order on January 23, 2014. Under Rule
1925, Appellant’s 1925(b) statement was due on or before February 13.
Appellant complied with the directive to file the statement within 21 days of
the order but did not comply with the trial court’s directive to serve the trial
court until May 2, 2014, in violation of Rule 1925(b)(1) (“Appellant shall file
of record the Statement and concurrently shall serve the judge.”). The trial
judge did not suggest that preparation of his 1925(a) opinion was hampered
by Appellant’s failure to timely serve his 1925(b) statement on the trial
court. Nevertheless, we remind Appellant’s counsel that the rule requires
concurrent filing of the 1925(b) statement and service on the trial judge.



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                                      ***

     (B) For the purpose of this rule, trial shall be deemed to
     commence on the date the trial judge calls the case to trial . . . .

     (C) In determining the period for commencement of trial, there
     shall be excluded therefrom:

     (1) 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 or her whereabouts were
     unknown and could not be determined by due diligence;

                                      ***

     (3) such period of delay at any stage of the proceedings as
     results from:

     (a) the unavailability of the defendant or the defendant’s
     attorney[.]

Pa.R.Crim.P. 600 (A)(1), (B), (C)(1) and (C)(3)(a). A Comment to Rule 600

provides that “a defendant is deemed unavailable during the time a

responding    jurisdiction   delays   or    refuses   to   grant    extradition.”

Commonwealth v. McNear, 852 A.2d 401, 406 (Pa. Super. 2004) (citing

Rule 600 Comment).

     In McNear, this Court explained:

     Our standard of review in evaluating Rule 600 issues is whether
     the trial court abused its discretion. The proper scope of review
     in determining the propriety of the trial court’s ruling is limited to
     the evidence on the record of the Rule 600 evidentiary hearing
     and the findings of the lower court.             In reviewing the
     determination of the hearing court, an appellate court must view
     the facts in the light most favorable to the prevailing party. A
     criminal defendant who is incarcerated in another jurisdiction is
     unavailable within the meaning of Rule 600 if the Commonwealth
     demonstrates by a preponderance of the evidence that it
     exercised due diligence in attempting to procure the defendant’s

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     return for trial. Due diligence is a fact-specific concept that is
     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 reasonable effort has been
     put forth.

Id. at 404 (internal quotations, citations and brackets omitted). Further,

     [i]t is generally held that Rule [600] is tolled where the
     Commonwealth shows, by a preponderance of the evidence, that
     it has acted with due diligence in seeking extradition to bring the
     defendant to trial. . . . The matter of availability and due
     diligence must be judged by what was done by the authorities
     rather than by what was not done.


Id. at 406 (quoting Commonwealth v. DeMarco, 481 A.2d 632, 636 (Pa.

Super. 1984) (emphasis in original)).

     The complaint against Appellant was filed on October 17, 2009 and his

trial commenced on September 11, 2012.        Clearly, without excluding any

time, Appellant was not brought to trial within 365 days of the date on which

the complaint was filed.      Appellant argues the trial court improperly

extended the time allowable under Rule 600 by excluding the time during

which Appellant was incarcerated in New Jersey.

     As the trial court noted in its history of the case, Appellant failed to

appear for a hearing on February 23, 2010. T.C.O. at 1. From its review of

the Rule 600 hearing transcript, the trial court also determined that the

Monroe County’s Chief Deputy Sheriff (“Chief”) received Appellant’s bench

warrant on February 26, 2010 and entered the warrant into the National




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Crime Information Center (“NCIC”) database on the same day. T.C.O. at 5.

Further:

       On March 8, 2010, the Appellant called and informed the sheriff’s
       office that he was in a short-term rehabilitation center and would
       turn himself in on March 15, 2010. The Chief requested a
       facsimile confirming the same, and the facsimile was received on
       March 9. However, the Appellant failed to turn himself in on
       March 15. On March 18, the Chief faxed the warrant to Essex
       County, New Jersey, where the Appellant had listed his address,
       and also faxed the warrant to the United States Marshals
       Service. It was intended that Essex County would visit the
       Appellant’s address to arrest him pursuant to the warrant.
       However, when the Appellant was arrested by authorities in New
       Jersey, he was held to complete a New Jersey sentence. The
       warrant followed him as a detainer to ensure he would be
       returned once he was finished with his New Jersey sentence.[5]
       On April 30, 2012, the sheriff’s office received a facsimile from
       Middlesex County, New Jersey, containing a waiver of
       extradition. It was only on this date that the Appellant was
       available for extradition. New Jersey would have apparently
       opposed extradition. On May 3, 2012, the Chief retrieved the
       Appellant from Middlesex County and returned him to Monroe
       County.

T.C.O. at 5 (references to Notes of Testimony omitted). The trial court also

acknowledged Appellant’s testimony during which he expressed his belief

that no detainer must have been lodged because New Jersey granted him

work release privileges. Id. Appellant did not offer any other evidence on

this point beyond his own speculation. Id. at 5-6.


____________________________________________


5
   When asked what happened with the warrant while Appellant was
incarcerated in New Jersey, the Chief explained, “The warrant followed him
as a detainer. When they were done with him, we would be contacted.”
N.T. Rule 600 Hearing, 8/1/12, at 7.



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      The trial court concluded that “Appellant was not brought to trial within

one year because he had been incarcerated in New Jersey and New Jersey

looked disfavorably upon extradition.” Id. at 6. The trial court recognized

the similarity of the facts in Appellant’s case to the facts in McNear.     In

McNear, the New Jersey authorities explained that McNear would not be

available for extradition until he completed his New Jersey sentences. This

Court determined that the time McNear spent under the auspices of the New

Jersey authorities was appropriately excluded. “Moreover, in view of the fact

that the New Jersey authorities opposed extradition, the Commonwealth was

not necessarily compelled to proceed under either the [Interstate Agreement

on Detainers] or the [Uniform Criminal Extradition Act], where to do so

would no doubt have been fruitless.” McNear, 852 A.2d at 406.

      As noted above, we are to view the facts in the light most favorable to

the Commonwealth as the prevailing party. McNear, 852 A.2d at 404. Just

as this Court determined the trial court did not abuse its discretion in

excluding McNear’s New Jersey prison time and denying his Rule 600

motion, we likewise conclude that the trial court did not abuse its discretion

in finding Appellant’s time incarcerated in New Jersey was properly excluded.

Appellant acknowledges he was in custody of New Jersey authorities from

March 25, 2010 until April 27, 2012. Appellant’s Brief at 10. When the time

Appellant spent incarcerated in New Jersey is subtracted from the period of

time that elapsed between the October 17, 2009 filing of the complaint and


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J-S49041-14


his September 11, 2012 trial, it is clear Appellant was brought to trial within

365 days.6 Therefore, we find the trial court did not abuse its discretion by

denying Appellant’s Rule 600 motion. Appellant’s first issue fails for lack of

merit.

        In his second issue, Appellant argues that the trial court erred by

deeming him ineligible for RRRI due to a prior conviction for robbery. As a

challenge to the legality of his sentence, Appellant presents a question of

law for which our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013)

(internal quotations and citations omitted).

        In its 1925(a) opinion, the trial court recognized that Appellant was

not questioning whether a robbery conviction could render him ineligible for

RRRI.    “The Appellant claims, instead, that we erred in our finding of fact

that he even had such a robbery conviction.      Unfortunately, the Appellant

has not produced even one iota of evidence to the contrary for [the trial

court]’s consideration.” T.C.O. at 8.

        The trial court explained that the county’s probation department

reviewed Appellant’s criminal record on NCIC, which included a robbery
____________________________________________


6
  We recognize other periods of time were excludable, e.g., from February
23, 2010 when Appellant failed to appear for the call of the trial list until
March 25, 2010 when he was arrested in New Jersey. However, simply
excluding the time Appellant was in the custody of New Jersey authorities
results in a period well short of Rule 600’s 365-day time limitation.
Therefore, we find it unnecessary to undertake more precise calculations.



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conviction in New Jersey in 1990.     Id.   That finding appeared in the pre-

sentence investigation report reviewed by the trial court. Id. On the basis

of that report, the trial court “concluded that the Appellant was ineligible for

RRRI. In short, we credited the probation officer’s representations that the

Appellant had a prior robbery conviction, and no evidence to the contrary

was ever before us.” Id.

      The statute authorizing RRRI defines an “eligible offender” as follows:

      “Eligible offender.” A defendant or inmate convicted of a
      criminal offense who will be committed to the custody of the
      department and who meets all of the following eligibility
      requirements:

         (1) Does not demonstrate a history of present or
         past violent behavior.

         (2) Has not been subject to a sentence the calculation of
         which includes an enhancement for the use of a deadly
         weapon as defined under law or the sentencing guidelines
         promulgated by the Pennsylvania Commission on
         Sentencing or the attorney for the Commonwealth has not
         demonstrated that the defendant has been found guilty of
         or was convicted of an offense involving a deadly weapon
         or offense under 18 Pa.C.S. Ch. 61 (relating to firearms
         and other dangerous articles) or the equivalent offense
         under the laws of the United States or one of its territories
         or possessions, another state, the District of Columbia, the
         Commonwealth of Puerto Rico or a foreign nation.

         (3) Has not been found guilty of or previously
         convicted of or adjudicated delinquent for or an attempt
         or conspiracy to commit a personal injury crime as
         defined under section 103 of the act of November
         24, 1998 (P. L. 882, No. 111), known as the Crime
         Victims Act, except for an offense under 18 Pa.C.S.
         § 2701 (relating to simple assault) when the offense is a
         misdemeanor of the third degree, or an equivalent
         offense under the laws of the United States or one of its

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        territories or possessions, another state, the District of
        Columbia, the Commonwealth of Puerto Rico or a foreign
        nation.

        (4) Has not been found guilty or previously convicted or
        adjudicated delinquent for violating any of the following
        provisions or an equivalent offense under the laws of the
        United States or one of its territories or possessions,
        another state, the District of Columbia, the Commonwealth
        of Puerto Rico or a foreign nation:

           18 Pa.C.S. § 4302(a) (relating to incest).

           18 Pa.C.S. § 5901 (relating to open lewdness).

           18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child
           pornography).

           Received a criminal sentence pursuant to 42 Pa.C.S.
           § 9712.1 (relating to sentences for certain drug
           offenses committed with firearms).

           Any offense for which registration is required under
           42 Pa.C.S. Ch. 97 Subch. H (relating to registration
           of sexual offenders).

        (5) Is not awaiting trial or sentencing for additional criminal
        charges, if a conviction or sentence on the additional charges
        would cause the defendant to become ineligible under this
        definition.

        (6) Has not been found guilty or previously convicted of
        violating section 13(a)(14), (30) or (37) of the act of April 14,
        1972 (P.L. 233, No. 64), known as The Controlled Substance,
        Drug, Device and Cosmetic Act, where the sentence was
        imposed pursuant to 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii),
        (3)(iii), (4)(iii), (7)(iii) or (8)(iii) (relating to drug trafficking
        sentencing and penalties).

61 Pa.C.S.A. § 4503 (emphasis added; footnotes omitted).               A “personal

injury crime” under the Crimes Victim Act includes “[a]n act, attempt or

threat to commit an act which would constitute a misdemeanor or felony

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under the following: . . . 18 Pa.C.S. Ch. 37 (relating to robbery).” 18 P.S.

§ 11.103.

       The pre-sentence investigation report, relied upon by the trial court,

reflected a robbery conviction, which constitutes a personal injury crime and

renders Appellant ineligible for RRRI.             Appellant argues that his robbery

charges were reduced to theft charges and, as such, do not constitute

personal injury crimes.          Appellant’s Brief 20-21.        In support of that

argument, Appellant attached to his brief a copy of his 1990 New Jersey

guilty plea from Essex County, New Jersey. Appellant’s Brief, Appendix A.

However, the document included as Appendix A does not appear in the

certified record in this case. As such, we may not consider it. “An appellate

court may consider only the facts which have been duly certified in the

record on appeal.” Pa.R.A.P. 1921 Note (citing Commonwealth v. Young,

317 A.2d 258, 264 (Pa. 1974)). “Under our Rules of Appellate Procedure,

those documents which are not part of the official record forwarded to this

Court are considered to be non-existent.              These deficiencies may not be

remedied by inclusion in a brief in the form of a reproduced record.”

Everett Cash Mut. Ins. Co. v. T.H.E. Ins. Co., 804 A.2d 31, 34 (Pa.

Super. 2002) (internal quotations and citations omitted).7

____________________________________________


7
  Although we may not consider Appellant’s plea document, we note in
passing that the plea document includes references to threats of violence
and actual violence on Appellant’s part, which would be the basis for
(Footnote Continued Next Page)


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J-S49041-14


      Based on the record, the trial court properly determined Appellant was

ineligible for RRRI.       We find no basis to disturb that ruling.   Appellant’s

second claim is devoid of merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




                       _______________________
(Footnote Continued)

determining Appellant ineligible under RRRI as an individual who has
demonstrated a history of past violent behavior. 61 Pa.C.S.A. § 4503.




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