J-S16019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALAN CLARK

                            Appellant                  No. 2706 EDA 2014


          Appeal from the Judgment of Sentence September 12, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003151-2012


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                   FILED JUNE 10, 2016

        Alan Clark appeals from the judgment of sentence imposed on

September 12, 2014 in the Court of Common Pleas of Philadelphia County

following his conviction by jury on charges of possession of a controlled

substance with intent to deliver (PWID),1 conspiracy to commit PWID,2 and a

variety of firearms charges. Clark received an aggregate sentence of five to

ten years’ incarceration.      In this timely appeal, Clark raises one claim; he

argues the trial court erred in failing to grant his motion to dismiss based

upon Pa.R.Crim.P. 600 (speedy trial).          After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 903(c).
J-S16019-16



based on the well-reasoned opinion of the trial judge, the Honorable Susan

I. Schulman.

      Our scope and standard of review for speedy trial issues are as

follows:

      [W]hen considering Rule 600, we remain cognizant that Rule 600
      serves two purposes. While it is intended to protect a
      defendant's speedy trial right, it also protects society's interest
      in prosecuting crime. Accordingly, where “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.” [Commonwealth v.
      Armstrong, 74 A.3d 228] at 235 [(Pa. Super. 2013)].

      “In evaluating Rule 600 issues, our standard of review of a trial
      court's decision is whether the trial court abused its discretion.”
      Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super.
      2011) (en banc). Further, we review “the facts in the light most
      favorable to the prevailing party.” Id. at 1135. 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.” Id. The
      Commonwealth has the burden of establishing by a
      preponderance of the evidence that it exercised due diligence
      throughout the prosecution. Commonwealth v. Selenski, 606
      Pa. 51, 994 A.2d 1083 (2010).

Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super. 2015).

      Pennsylvania Rule of Criminal Procedure 600 provides that a

      [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.




                                      -2-
J-S16019-16



Pa.R.Crim.P. 600(A)(2)(a).3

       Here, the certified record demonstrates the complaint was filed on

December 21, 2011, which results in the mechanical run date of December

21, 2012. Trial commenced on June 25, 2014, more than 900 days after the

filing of the complaint.

       In its Pa.R.A.P. 1925(a) opinion, the trial court accurately discussed

the relevant concepts of excludable and excusable time when analyzing Rule

600 speedy trial issues.        Moreover, the trial court discussed the relevant

delays and causes thereto in determining that the Commonwealth exercised

due diligence is bringing Clark to trial.        Our review of the certified record

discloses no abuse of discretion therein.

       In addition to the trial court’s analysis, we note the official docket

entry dated November 1, 2012 stated:

       Both sides anticipate being ready on previously assigned trial
       date of 11/13/12 in Rm. 901. Defense filing motion to reveal
       confidential location today.

Docket Entry, 11/1/2012.

       As the trial court noted in its Pa.R.A.P. 1925(a) opinion,

       Indeed, virtually every single continuance in this case since prior
       to expiration of the mechanical run date was due to the judicial
       calendar, physical unavailability of witnesses, and on numerous
       occasions, the unavailability of Appellant’s counsel. Appellant,
       quite plainly, is attempting to make a mountain out of a mole
____________________________________________


3
  The 365 days from the date of the filing of the complaint is referred to as
the “mechanical run date.”



                                           -3-
J-S16019-16


     hill, when there is not even a mole hill to mold in the first
     instance. His claims that “the Commonwealth did not exercise
     due diligence throughout the case” was, and remains, wholly
     unsupported.

Trial Court Opinion, 5/13/2015, at 5.

     Our review of the certified record confirms the trial court’s conclusion

that Clark’s allegations of a lack of due diligence by the Commonwealth are

“wholly unsupported.” Id.

     In light of the above, Clark is not entitled to relief.

     Judgment of sentence affirmed. Parties are directed to attach a copy

of the trial court’s, May 13, 2015, Pa.R.A.P. 1925(a) opinion in the event of

further proceedings.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2016




                                      -4-
                                                                                  Circulated 05/12/2016 10:33 AM




            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                             CRIMINAL TRIAL DIVISION

COMMONWEALTH            OF PENNSYLVANIA                     CP-51-CR-0003151-2012

                        vs.

ALAN CLARK                                                  2706 EDA 2014
                                                                             FILED
                                                                          MAY 1 3 2015
                                            OPINION
                                                                         Poet Trial Umt
SCHULMAN, S.I.,-I.

       Alan Clark ("Appellant") has appealed this Court's judgment of conviction and sentence.

This Court submits the following Opinion in accordance with the requirements of Pa. R.A.P.

1925, and for the reasons set forth herein, recommends that.its judgment be affirmed.

PROCEDURAL HISTORY

       Prior to trial, Appellant filed a Motion to Dismiss Pursuant to Pa.R.Crim.P. 600. On

June 23, 2014, this Court held a hearing on Appellant's Motion, and upon careful evaluation of

the record, denied relief.

        On June 27, 2014, following a jury trial before this Court, Appellant was convicted of
                                                                    1
Possession with Intent to Deliver Controlled Substances ("PWID"),       Criminal Conspiracy

(PWID),2 Persons Not to Possess Fireanns,3 Possession of a Firearm with Altered

Manufacturer's Number," Firearms Not to Be Carried without a License,5 and Carrying Firearms




I 35 p .S. § 780-113( a)(30).
2
  18 Pa.C.S. § 903(c).
3
  18 Pa.C.S. § 6105.
418
     Pa.C.S. § 6110.2.
5
  18 Pa.C.S § 6106.
              ,--:-:-:-:·:-:·:·--:·.   ~ ·. - -.·




on Public Streets or Public Property.6 On September 12, 2014, upon review of the presentence

investigation report ordered by this Court, and consideration of all relevant facts and

circumstances of this case, Appellant was sentenced to an aggregate term of 5 to 10 years'

incarceration.

         Appellant thereafter filed a timely Notice of Appeal, and this Court ordered him to file a

Concise Statement of Matters Complained of on Appeal in accord with Pa.R.A.P. l 925(b).

Counsel for Appellant timely complied.

DISCUSSION

         On appeal, Appellant solely challenges the denial of his Rule 600 Motion, as follows:

                            The Court erred in denying [Appellant's] motion to dismiss
                            pursuant to Pa.R.Crim.P. 600 where [Appellant] was tried after the
                            365 [day] run date (approximately 914 days after the complaint
                            was filed) and the Commonwealth did not exercise due diligence
                            throughout the case.

(Appellant's Rule 1925(b) Statement.r[ 6).

         Whether the Court Abused Its Discretion in Denying Appellant's Rule 600 Motion.

         Pennsylvania Rule of Criminal Procedure No. 600 "serves two equally important

functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of

society." Commonwealth v. Ticlcel, 2 A.3d 1229, 1233 (Pa. Super. 2010) (citations omitted).

"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." Id. "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."                  Id.


6
    18 Pa.C.S. § 6108.
                                                            2
          "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." Tickel, 2 A.3d 1229, 1233

(citations omitted). "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." Id.

          "As provided by Rule 600,[7] the trial must commence by the mechanicalrun date, which

is calculated by adding 365 days to the date on which the criminal complaint was filed." Tickel,

2 A.3d 1229, 1234 (citations omitted). "The mechanical run date can be adjusted by adding any

'excludable' time when the delay was caused by the defendant under Rule 600(C)." Id. "If the

trial begins before the adjusted run date, there is no violation and no need for further analysis."


7
    Rule 600 provides in relevant part:

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

         (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;

          (2) any period of time for which the defendant expressly waives Rule 600;

          (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;

          (b) any continuance granted at the request of the defendant or the defendant's attorney.

Pa. R. Crim. P. 600.

                                                    3
                                       ~.-.·,,_,_-<·-·




Id. "However, if the defendant's trial is delayed until after the adjusted run date, [courts] inquire

if the delay occurred due to 'excusable delay,' circumstances beyond the Commonwealth's

control and despite its due diligence pursuant to Rule 600(G)." Id. In evaluating a trial court's

ruling on speedy trial issues, the standard of review of is whether the trial court abused its

discretion. See Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en bane)-.

        Applying the foregoing, Appellant is due no relief. The Commonwealth filed its

Complaint against Appellant on December 21, 2011, thus yielding a mechanical run date of

December 21, 2012. On November 11, 2012 --prior to expiration of the mechanical run date, let

alone the adjusted run date -- Appellant filed a Motion to Compel Disclosure of Location of

[Surveillance]. The Honorable Donna Woelpper held Appellant's Motion under advisement and,

at the next listing on December 28, 2012, denied relief. On the same date, Judge Woelpper

scheduled Appellant's previously filed Motion to Suppress "for decision only" on January 16,

2013. At this listing, the Commonwealth was ready to proceed, but the case was not called. At

approximately 12:30 p.m., Judge Woelpper had to adjourn for a meeting, and the case was

relisted for decision on January 25, 2013.

        The Commonwealth once again was ready on January 25, 2013, but the matter had to be

continued because Appellant's counsel was unavailable, namely, "on trial elsewhere". At the

next listing on January 31, 2013, Judge Woelpper permitted the Commonwealth to supplement

the record with additional testimony -- even though she had listed the matter "for decision only"

-- so that she could make an accurate ruling. The case was rescheduled for February 7, 2013, at

which time Appellant's Motion to Suppress was denied. Judge Woelpper scheduled the case for

trial on April 8, 2013.



                                                         4
       The matter was continued by this Court until November 4, 2013, due to the unavailability

of a necessary police officer who was injured on duty. On November 26, 2013, Appellant filed

the instant Rule 600 Motion. At the next listing, December 6, 2013, the matter had to be

continued because this Court was on trial. At the ensuing December 13, 2013 listing, this Court

disposed of miscellaneous motions filed by Appellant. The matter was rescheduled for

February 3, 2014, at which, time the parties conducted plea negotiations.   Appellant ultimately

rejected the Commonwealth's    plea offer, and the case was listed for trial on May 19, 2014.

       On May 19, 2014, counsel for Appellant was unavailable, and the case had to be

continued. On May 20, 2014, both parties were ready to proceed but the matter was not reached.

On May 21, 2014, the Commonwealth once again was ready to proceed, but both counsel for

Appellant and this Court were unavailable, on trial elsewhere.

       The case was rescheduled for June 23, 2014, at which time this Court conducted a

hearing on the motion at bar. Upon evaluation of the record, as well as arguments by counsel,

this Court denied relief. Trial was scheduled for, and commenced on, June 25, 2014. (See N.T.

06/23/14, pp. 5-18).

       Quite frankly, the record in this case hardly demonstrates a lack of due diligence by the

Commonwealth.     Indeed, virtually every single continuance in this case since prior to expiration

of the mechanical run date was due to the judicial calendar, physical unavailability of witnesses,

and on numerous occasions, the unavailability of Appellant's counsel. Appellant, quite plainly,

is attempting to make a mountain out of a mole hill, when there is not even a mole hill to mold in

the first instance. His claim that "the Commonwealth did not exercise due diligence throughout

the case" was, and remains, wholly unsupported.



                                                  5
            CONCLUSION

            For the reasons set forth in the foregoing Opinion, this Court's judgment of sentence

should be affirmed.




DATE:_~--L.qj...!-C.(q/_._·_,__( S-
                                 __
                                                         SUSAN I. SCHULMAN, J.




                                                    6
