J-S44044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
             v.                             :
                                            :
MANUEL M.M. ROSE,                           :
                                            :
                   Appellant                :           No. 934 EDA 2016

             Appeal from the Judgment of Sentence March 1, 2016
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0008699-2012

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 17, 2017

        Manuel M.M. Rose (“Rose”) appeals from the judgment of sentence

imposed following his conviction of criminal trespass—breaking into structure

and theft by unlawful taking—movable property.1 We affirm.

        Pursuant to the trial court docket, Rose was arrested on July 10, 2012,

and charged with numerous offenses, including burglary, criminal trespass—

breaking into structure, theft by unlawful taking—movable property, and

criminal mischief—tampering with property. Trial was initially scheduled for

April 22, 2013, but was continued due to Rose’s late Notice to the

Commonwealth of an alibi defense. The trial court rescheduled the trial to

September 5, 2013, and indicated that it had given Rose the “[e]arliest

possible date.” The trial court also ruled that the delay was excludable for




1
    See 18 Pa.C.S.A. §§ 3505(a), 3921(a).
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Pa.R.Crim.P. 600 purposes.2 On September 5, 2013, the parties appeared

before the court, and jury selection commenced.        However, the trial court

terminated jury selection and cancelled the trial.     On September 9, 2013,

the trial court granted Rose’s Motion for a continuance to further consider a

plea offer made by the Commonwealth. The trial court ruled that the delay

was excludable for Rule 600 purposes.        On September 16, 2013, Rose

rejected the Commonwealth’s plea offer.             Thereafter, the trial court

scheduled the matter for trial on July 7, 2014.

      On November 18, 2013, Rose filed a Motion to dismiss pursuant to

Rule 600. Rose filed additional Motions to dismiss pursuant to Rule 600 on

April 4, 2014, and May 14, 2014. On June 10, 2014, following a hearing,

the trial court denied Rose’s Motions to dismiss.

      On July 3, 2014, the trial court conducted a pretrial conference, after

which it continued the trial, and indicated that “[p]ossible non-trial

disposition to be decided on 9/19/14.” The docket further reflects that, on

September 19, 2014, the trial court granted Rose’s Motion for continuance to

conduct further investigation. The trial court scheduled the matter for trial

2
  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). Per the associated computational guidance, periods of delay
at any stage of the proceedings caused by the Commonwealth, when it has
failed to exercise due diligence, are to be counted in the 365-day tally. See
id. 600(C)(1). The rule further directs that “[a]ny other periods of delay
shall be excluded from the computation.” Id.; see also Commonwealth v.
Mills, 2017 Pa. LEXIS 1380, at *5 (June 20, 2017) (stating that periods of
judicial delay are excludible from calculations under Rule 600).


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on January 26, 2015, and ruled that the delay was excludable for Rule 600

purposes.    On January 23, 2015, the trial court conducted a pretrial

conference, at which Rose moved for a continuance based on his counsel’s

conflict of interest.   The trial court granted Rose’s Motion, appointed Rose

new counsel, and scheduled a status conference regarding counsel for

February 6, 2015.       On February 6, 2015, the trial court granted Rose’s

Motion for a continuance for “possible non-trial disposition” of the case. On

February 11, 2015, the trial court granted Rose’s further request for a

continuance based on the unavailability of newly appointed counsel.       The

trial court appointed Rose new counsel, and scheduled a status conference

regarding counsel for March 2, 2015.       On March 2, 2015, Rose was not

brought to court from prison, due to a writ failure.    Accordingly, the trial

court rescheduled the status conference regarding counsel for March 18,

2015.    On March 18, 2015, the trial court granted Rose’s Motion for a

continuance “to relist the case for further status.”         The trial court

rescheduled the matter for trial on November 9, 2015, which was the

“earliest possible date,” and ruled that the delay was excludable for Rule 600

purposes. On November 9, 2015, Rose again moved for dismissal pursuant

to Rule 600, which Motion the trial court denied. Rose thereafter waived his

right to a jury trial.     The trial court scheduled Rose’s bench trial for

November 10, 2015.




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      On November 10, 2015, following a bench trial, Rose was found guilty

of criminal trespass and theft by unlawful taking, and not guilty on all other

charges.      On March 1, 2016, Rose was sentenced to an aggregate prison

term of 18 to 36 months. Rose timely filed a Notice of Appeal, and a court-

ordered Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal.

      On appeal, Rose raises the following issue for our review:

      Did not the [trial] court err in denying [Rose’s M]otion to
      dismiss[,] pursuant to Pa.R.Crim.P. 600[,] because, including the
      time attributable to the conventional progression of a criminal
      case and the time attributable to the Commonwealth due to its
      non-diligent delay, and excluding the time not counted due to
      delay beyond the Commonwealth’s control, more than 365 days
      had elapsed before [Rose] was brought to trial?

Brief for Appellant at 3.

      We review Rose’s Rule 600 argument according to the following

principles:

      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].


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      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.
      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. Armstrong, 74 A.3d 228, 234-35 (Pa. Super. 2013)

(citation omitted).

      Rose contends that, because the Criminal Complaint was filed on July

10, 2012, the mechanical run date was July 10, 2013. Brief for Appellant at

7. Rose concedes that there is a period (136 days) of excludable time, from

April 22, 2013 to September 5, 2013, which resulted in an adjusted run date

of November 23, 2013. Id. Rose claims that the trial did not occur until

1,217 days after the Complaint was filed. Rose argues that the trial court

erred by determining that he had caused all of the delays.          Id.     Rose

contends that the docket reflects no requests by Rose for continuances, or

other excludable time between the date of the Complaint and April 22, 2013

(the first trial date). Id. at 9. Rose asserts that all parties were ready for



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trial on September 5, 2013, but the trial court, sua sponte, continued the

trial to July 7, 2014, for the Commonwealth to make an offer to resolve both

of Rose’s open cases. Id. Rose claims that he had rejected all offers made

by the Commonwealth, and did not request the continuance. Id.

     Rose contends that, on July 3, 2014, the case was relisted for

September 19, 2014, for a potential plea, with no finding of excludable time

between July 7, 2014, and September 19, 2014. Id. at 10. Rose asserts

that the trial court improperly denied his request to assign a trial date. Id.

Rose claims that, on September 19, 2014, he was not transported from state

custody to court for trial, and there is no record of the Commonwealth

preparing a writ for his transfer. Id. Rose argues that the trial court erred

when it “ruled that the continuance was a defense request and that the time

until the next listed trial date of January 26, 2015, was excludable….” Id.

Rose contends that the trial court permitted the public defender to withdraw

from representation, due to a conflict of interest, and that the trial court

thereafter appointed “a succession of three new attorneys, resulting in a

delay until March 18, 2015, whereupon final trial counsel requested and was

granted a trial date [on November 9, 2015].” Id. Rose asserts that the trial

court erred by determining that this further delay was also attributable to

the defense. Id.

     In its Opinion, the trial court addressed Rose’s issue, set forth the

relevant law, and determined that the issue lacks merit.     See Trial Court



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Opinion, 9/14/16, at 2-5.   We agree with the reasoning of the trial court,

which is supported by the record and free of legal error, and affirm on this

basis. See id.3

     Judgment of sentence affirmed.

     President Judge Emeritus Bender joins the memorandum.

     Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2017




3
  In its Opinion, the trial court addressed only its June 10, 2014 Order
denying Rose’s Motions for dismissal, and did not address its subsequent
denial of Rose’s November 9, 2015, Motion for dismissal, or the trial court’s
denial thereof. Nevertheless, based on our review of the trial court docket,
we conclude that all subsequent delays were not caused by the
Commonwealth, and were properly excludable for purposes of Rule 600.


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