Opinion
1401 MDA 2021 J-S18029-22
09-09-2022
COMMONWEALTH OF PENNSYLVANIA v. CLIFF CROSBY Appellant
Joseph D. Seletyn, Esq. Prothonotary
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered September 2, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000577-2021
Joseph D. Seletyn, Esq. Prothonotary
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM
McLAUGHLIN, J.
Cliff Crosby appeals the judgment of sentence following his jury trial convictions for possession with intent to deliver ("PWID") and criminal use of communication facility. Crosby alleges that the trial court erred in denying his motion to dismiss pursuant to Rule 600 of the Pennsylvania Rules of Criminal Procedure and his motion to dismiss for a violation of his constitutional right to a speedy trial. We affirm on the basis of the opinion of the Honorable Scott Arthur Evans.
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512, respectively.
On July 25, 2019, the Commonwealth filed a criminal complaint against Crosby. The court held a preliminary hearing on February 11, 2021. It held an arraignment hearing on February 23, 2021. The Commonwealth originally scheduled Crosby's trial for March 8, 2021, but it was continued to April 12, due to a lack of availability of a courtroom to hold the trial. On March 26, Crosby filed a motion to dismiss pursuant to Rule 600. On April 9, the trial was continued to May 17. The court held a hearing on the motion on April 23.
At the hearing, the parties agreed that the periods of March 18, 2020, through August 31, 2020, and December 7, 2020, through March 7, 2021, were excludable due to an order providing that these periods "shall" be excluded from the calculation of Rule 600(C) due to the COVID-19 pandemic. See N.T., Rule 600 Motion, 4/23/21, at 4; Declarations dated 3/18/20, 4/1/20, 5/29/20; 6/2/20; 12/11/20.
The Commonwealth presented testimony from Kurt Zitsch, the affiant of the criminal complaint. N.T., Rule 600 Motion, at 4-5. Zitsch testified that after filing the complaint, the only measure he took to find Crosby was "forward[ing] a copy of the complaint and warrant to Sergeant Meik" so that he was aware of the arrest warrant for Crosby. Id. at 5. He testified that on November 5, 2020, the warrant control unit informed him that Crosby had been incarcerated since July 2020. Id. at 6. Upon receiving this information, Zitsch "contacted the Magisterial District Judge's Pianka's office and made them aware to move forward to have him arraigned and move forward with a preliminary hearing." Id.
During argument, the Commonwealth contended that Zitsch's contact with the court upon learning of Crosby's incarcerated status "constitutes an action to bring the case to trial[.]" Id. at 14. The Commonwealth also stated that it listed the case for trial during the March trial term. However, the case was listed as a backup and ultimately had to be given a new date "because jury selection had already taken place for the March trial term there." Id. Defense counsel argued that the Commonwealth did not act with due diligence to locate Crosby after filing the criminal complaint. Id. at 10-11.
The court denied the motion on April 26. It concluded that the Commonwealth did not exercise due diligence between the filing of the complaint and November 5, when it learned that Crosby was incarcerated. See Memorandum Opinion and Order of Court, filed 4/26/21, at 4. However, it determined that the Commonwealth operated with due diligence between the periods of November 5 through December 7 and March 8 through March 26, amounting to 50 days of excludable time. Id. It also concluded that the periods of March 18, 2020, through August 31, 2020, and December 7, 2020, through March 7, 2021, were also excludable due to the court's order suspending Rule 600 because of the COVID-19 pandemic. Id. at 6.
On May 13, 2021, Crosby requested a continuance for trial until June 21. On May 27, Crosby filed a motion to dismiss arguing that his right to a speedy trial under state and federal constitutions had been violated. The court denied the motion on June 2. Crosby proceeded to trial on June 21. The jury found him guilty of two counts each of PWID and criminal use of communication facility. The trial court sentenced Crosby to an aggregate term of six to 20 years' incarceration. Crosby filed a post-sentence motion which the trial court denied. This timely appeal followed.
Crosby presents two issues for our review:
I. Did not the court err in denying [Crosby's] motion to dismiss pursuant to Pa.R.Crim.P. 600?
II. Did not the court err in denying [Crosby's] motion to dismiss based on a violation of his speedy trial rights under the United States and Pennsylvania Constitutions?Crosby's Br. at 5 (suggested answers omitted).
Crosby's first claim challenges the court's denial of his Rule 600 motion. He maintains that the trial court erred in concluding that 50 days were excludable. He argues that the periods from November 5, 2020 through December 7, 2020, and from March 8, 2021 through March 26, 2021, were not excludable. For the period of November through December, he alleges that the Commonwealth provides no explanation for why it should be excluded, and the time instead should be characterized as the normal progression of the case. Regarding the period from March 8 through March 26, he maintains that though the case was listed for trial on March 8, the Commonwealth could not go to trial on that date because another case was listed for trial in the courtroom. He states that the Commonwealth did not explain why that case was given priority over his.
Our standard of review of a trial court's decision of a defendant's Rule 600 motion is that of an abuse of discretion. See Commonwealth v. Leaner, 202 A.3d 749, 765-66 (Pa.Super. 2019). Our scope of review is limited to the evidence presented at the Rule 600 motion hearing and the court's findings of fact. See Commonwealth v. Watson, 140 A.3d 696, 698 (Pa.Super. 2016). We "view the facts in the light most favorable to the prevailing party." Id. (citation omitted). To determine the proper calculation of time, a court should determine the mechanical run date, determine any excludable time, and then add the amount of excludable time to the mechanical run date to determine the adjusted run date. See Commonwealth v. Wendel, 165 A.3d 952, 956 (Pa.Super. 2017).
Rule 600 provides that when a criminal complaint has been filed against a defendant, the trial for that defendant must commence within 365 days. See Pa.R.Crim.P. 600(A)(2)(a). To determine if the trial began within the prescribed number of days, "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." Id. at 600(C)(1). Rule 600 also provides that other forms of delay may be excluded, including time attributable to the court and delay that occurs despite the Commonwealth's exercise of due diligence. Id. at 600(C)(1)-(2).
Determining whether the Commonwealth exercised due diligence is a fact-specific, case-by-case, inquiry, that "does not require perfect vigilance and punctilious care, but merely a showing the Commonwealth has put forth a reasonable effort." Id. at 600, cmt. (citations omitted). Furthermore, "the Commonwealth is required to demonstrate that it acted with due diligence during a time period before that period can be deemed excludable." Commonwealth v. Harth, 252 A.3d 600, 617 (Pa. 2021) (emphasis omitted). "[W]here a trial-ready prosecutor must wait several months due to a court calendar, the time should be treated as 'delay' for which the Commonwealth is not accountable." Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (citations omitted).
Here, the trial court determined that the contested days of November 5, 2020, through December 7, 2020, were excludable because the Commonwealth had acted with due diligence. The court determined that when the Commonwealth learned of Crosby's incarcerated status, it immediately moved to have his case listed for an arraignment and a preliminary hearing. See Rule 1925(a) Opinion ("1925(a) Op."), filed 11/30/21, at 5. Thus, the trial court concluded that "the Commonwealth had done precisely what it should have done. It immediately advised the [c]ourt and requested the hearings to be scheduled." Id. at 6.
Regarding the time between March 8 and March 26, the trial court determined that the time was excludable as well. It determined that the Commonwealth set trial for March 8, "the next scheduled jury trial term." Id. at 2. It noted that the Commonwealth listed the case for trial despite the backlog of cases with the court, "in the hope that it could proceed should the scheduled trials not." Id. at 6. When it was not possible to have the trial in March because of an already listed case, "the case was moved to the next trial term in April." Id. The court determined that the efforts of the Commonwealth amounted to due diligence and that it did all that it could following November 5 to bring Crosby to trial. See id. The court also noted that Crosby failed to argue that the Commonwealth did not exercise due diligence during these periods and instead limited his argument to the period between the complaint and November 5. See id.
After reviewing the briefs, the trial court record, the relevant case law, and the trial court's well-reasoned opinion, we affirm on the basis of the trial court opinion. See id. at 4-8. The court's determination of the Commonwealth's due diligence is supported by the record and the Commonwealth demonstrated its due diligence before the court's determination of any excludable time. See Harth, 252 A.3d at 617.
Crosby's remaining issue challenges the court's denial of his motion to dismiss for violation of his constitutional right to a speedy trial. He maintains the delay in bringing his case to trial "was caused by the Commonwealth's failure to expend any effort whatsoever in ascertaining Mr. Crosby's whereabouts." Crosby's Br. at 25. He maintains that but for the information that was eventually given to Zitsch on November 5, "the Commonwealth's inability to locate Mr. Crosby's whereabouts could have been indefinite." Id.
We review a court's determination of a speedy trial violation for an abuse of discretion. See Commonwealth v. Miskovitch, 64 A.3d 672, 677 (Pa.Super. 2013). "[O]ur scope of review is limited to the trial court's findings and the evidence on the record, viewed in the light most favorable to the prevailing party." Id. (citation and quotation omitted).
State and federal constitutions provide defendants a right to a speedy trial. See Commonwealth v. DeBlase, 665 A.2d 427, 432 (Pa. 1995). In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court provided four factors to consider when faced with the question of whether a defendant's speedy trial rights had been violated. These factors are: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Commonwealth v. Jones, 299 A.2d 288, 291 (Pa. 1973) (quoting Barker, 407 U.S at 530).
Here, in its analysis of the Barker factors, the trial court determined that Crosby's right to a speedy trial had not been violated. The court found that the length of delay in bringing Crosby's case to trial was 22 months. See 1925(a) Op. at 9. It stated that the delay was due to Zitsch's failure to locate him after filing the criminal complaint. See id. at 10. Looking to the next factor, the court concluded that Crosby had not asserted his constitutional right to a speedy trial until after the trial court denied his Rule 600 motion. See id. at 10-11. Regarding prejudice, the court found that Crosby had not suffered any. It also stated that Crosby's claims of prejudice were speculative. See id. at 12-13. The court, therefore, concluded that "considering the relatively short delay compared to the one found insufficient in Barker and the absence of any actual prejudice," Crosby's claim was meritless. Id. at 13.
After reviewing the briefs, the trial court record, the relevant case law, and the trial court's well-reasoned opinion, we affirm on the basis of the trial court opinion. See id. at 9-13. The court conducted a thorough analysis of the Barker factors and its conclusions are supported by the record.
Judgment of sentence affirmed.
Judgment Entered.
IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA
NO.577-CR-2021
Circulated 08/31/2022
Ryan Shovlin, Esq., District Attorney's Office
Jacqulyn Gagliardi, Esq., Public Defender's Office
MEMORANDUM OPINION
Scott Arthur Evans, Judge
Facts and Procedural History
On July 25, 2019, a Criminal Complaint was filed against Defendant alleging three (3) counts of Possession with Intent to Deliver a Controlled Substance, and three (3) counts of Criminal Use of a Communication Facility. An arrest warrant was issued on that date. Pennsylvania Office of Attorney General Narcotics Agent Kurt Zitsch, the affiant to the Complaint, believed Defendant was residing in the City of Harrisburg at 1915 North 7th Street.
35 P.S. §780-113{a)(30)
However, at the time the Complaint and Arrest Warrant were issued. Defendant was incarcerated in the Cumberland County Prison, where he had been held since June 16, 2019, on pending criminal charges in that county, a state parole detainer, and a domestic relations detainer. On May 26, 2020, Defendant pled guilty to his Cumberland County charges and was sentenced to a term of incarceration in a state correctional institution. On July 16, 2020, Defendant was transported to SCl-Camp Hill. In October 2020. Defendant was transferred to SCI-Phoenix. During this entire period from the filing of the Criminal Complaint, Agent Zitsch and the Commonwealth were unaware of Defendant's continual incarceration and took no steps in the exercise of due diligence to locate him and serve the Arrest Warrant.
On November 5,2020, the Attorney General's Warrant Unit notified Agent Zitsch that Defendant was incarcerated at SCl-Phoenix. Agent Zitsch immediately notified Magisterial District Judge Barbara Pianka of Defendant's whereabouts and requested that a Preliminary Arraignment and Preliminary Hearing be scheduled. Both proceedings were scheduled for January 14,2021, but were continued for unknown reasons despite the Commonwealth's inquiries. On February 11th, the Preliminary Hearing was conducted, and all charges were held for disposition in the Dauphin County Court of Common Pleas.
He was continually incarcerated without release since June 16,2019.
On February 17th, the Commonwealth undertook efforts to schedule Defendant's Formal Arraignment via videoconferencing as expeditiously as possible. On February 18th, the District Attorney filed the Criminal Information, provided discovery to Defendant's counsel, and informed counsel that Formal Arraignment was scheduled for the following day. Due to scheduling impediments with SCI-Phoenix, the Formal Arraignment did not occur until February 23rd. Defendant's case was scheduled for trial on March'8th, the next scheduled jury trial term.
Unfortunately, the Criminal Call of the List for the March trial term had already been conducted on February 16th. Therefore, trials had been identified and, in some cases, voir dire had begun, by the time Defendant's case was arraigned into the March trial term. Nonetheless, the District Attorney requested that Defendant's case be listed as a back-up trial should any of the scheduled trials be continued or otherwise not proceed.
On March 26,2021, Defendant filed a Motion to Dismiss Pursuant to Pa. R. Crim. P. 600. On April 23, 2021, a hearing was held on Defendant's Motion. On April 26,2021, This Court issued a Memorandum Opinion and Order of Court denying Defendant's request for dismissal. On May 13,2021, Defendant requested a continuance until June 21,2021.
On May 27,2021, Defendant filed a second Motion to Dismiss. This Motion also alleged a violation of his right to a speedy trial. However, the basis for Defendant's claim was not Pa. R. Crim. P. 600 but the speedy trial provisions of the 6th Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. On June 2, 2021, we denied Defendant's second Motion to Dismiss without a hearing.
Trial commenced on June 21,2021. On June 22, 2021, the jury returned guilty verdicts on two (2) counts each of Possession with Intent to Deliver a Controlled Substance and Criminal Use of a Communication Facility. On September 2,2021, This Court sentenced Defendant to an aggregate term of not less than six (6) nor more than twenty (20) years in a state correctional institution.
The jury was unable to reach verdicts at the remaining two (2) counts and these charges were ultimately withdrawn by the Commonwealth at the Sentencing Hearing.
On September 13, 2021, Defendant filed a Post-Sentence Motion for Reconsideration and Modification of Sentence. We denied said Motion on September 29, 2021. On October 27, 2021, Defendant filed his Notice of Appeal to the Pennsylvania Superior Court. Per Order of This Court, Defendant filed a timely Statement of Errors Complained of on Appeal on November 18, 2021. In said Statement, Defendant preserves the following issues for appeal:
1. The Court erred in denying Defendant's motion to dismiss pursuant to Pa. R. Crim. P. 600; and
2. The Court erred in denying Defendant's motion to dismiss based on the constitutional speedy trial rights set forth in the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution.Rule 600
During much of the pendency of Defendant's case, the Pennsylvania court system was impacted by the ongoing COVID-19 health emergency. On March 16,2020, the Pennsylvania Supreme Court issued an Order declaring a statewide judicial emergency and authorizing Courts of Common Pleas to take appropriate measures to safeguard the health and safety of court personnel and the public. Among the authorized measures was the suspension of Pa. R. Crim. P. 600(C). On the same date, Dauphin County President Judge John F. Cherry declared a judicial emergency and suspended Rule 600 effective March 18th.
On March 18th, the Supreme Court issued another Order closing all Pennsylvania courts and suspending Rule 600(C) statewide, stating "[t]he purport of this directive is that the time period of the statewide judicial emergency.. .SHALL BE EXCLUDED from the time calculation under Rule 600(C)." (Emphasis in original).
Numerous supplemental emergency Orders were issued over the ensuing months. The parties herein have stipulated that such emergency declarations with the above-quoted language regarding Rule 600 were in effect from March 18-2020, to August 31-2020, and from December 7,2020, to March 7,2021. These periods constitute a total of 256 days.
Defendant's 1925(b) Statement calculates these periods as totaling 257 days. This Court will utilize its own math, which favors Defendant by one (I) day, and the Superior Court will ultimately be the final arbiter of the correct calculation.
"Trial 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 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. All other periods of delay shall be excluded from the computation." Pa. R. Crim. P. 600(C)(1).
The time necessary to decide a Rule 600 Motion is excludable from the computation prescribed by Pa. R. Crim. P. 600(C)(1). See, Commonwealth v. Booze, 953 A.2d 1263,1277 (Pa. Super. 2008); Commonwealth v. Hyland, 875 A.2d 1175,1191 (Pa. Super. 2005); and Commonwealth v. Williams, 726 A.2d 389,392 (Pa. Super. 1999). Therefore, the relevant period for evaluating Defendant's claim for relief under Pa. R, Crim. P. 600 is July 25,2019, the date of the filing of the Criminal Complaint, through March 26, 2021, the date Defendant filed his Rule 600 Motion. This amounts to 610 days.
The Commonwealth argues that the following time is excludable:
a) March 18,2020, to August 31,2020, and December 7,2020, to March 7, 2021, the entire period covered by various emergency Orders suspending Rule 600(C)-256 days.
b) November 5, 2020, to December 7, 2020, the period from when Agent Zitsch learned of Defendant's whereabouts until the renewed suspension of Rule 600(C)-32 days.
c) March 8, 2021, to March 26, 2021, the period from the expiration of the final emergency Order suspending Rule 600(C) until the filing of Defendant's Rule 600 Motion-18 days.
We will first address the periods detailed in (b) and (c) above. Upon being advised of Defendant's whereabouts on November 5,2020, Agent Zitsch immediately notified Magisterial District Judge Pianka and requested that a Preliminary Arraignment and Preliminary Hearing be scheduled. The court arranged to conduct both proceedings on January 14,2021. Although that hearing was eventually continued for unknown reasons, at the time Rule 600 was re-suspended on December 7th, the Commonwealth had done precisely what it should have done. It immediately advised the Court and requested that hearings be scheduled.
As already detailed in this Memorandum Opinion, within one (1) week of the Preliminary Hearing, the Commonwealth filed the Criminal Information, provided discovery to defense counsel, and scheduled Formal Arraignment. Defendant's case was scheduled for the next available trial term even though trials had already been selected for that term, in the hope that it could proceed should the scheduled trials not. When such an opportunity to try the case in March failed to materialize, the case was moved to the next trial term in April. We find that the Commonwealth exercised due diligence at all points after November 5th and did all it could to bring Defendant to trial as expeditiously as possible. Regular practice in Dauphin County would never result in the exchange of discovery, filing of the Criminal Information, and readiness for trial within weeks of the Preliminary Hearing.
In his 1925(b) Statement, Defendant states that "[t]he Commonwealth has never claimed that it was in a position to commence trial on or before April 16,2021", that date representing Defendant's claimed adjusted run-date. We do not believe the Commonwealth needs to make such a claim. All its actions demonstrate an intent to bring Defendant to trial as early as March. It was Defendant's Motion to Dismiss which prevented the case from going to trial in April. In fact, it was Defendant who was granted a continuance in May and was apparently not ready to commence trial.
We are not even certain Defendant challenges the Commonwealth's due diligence during these specific periods. Neither in his Motion to Dismiss, counsel's cross-examination or argument during the hearing, nor the 1925(b) Statement does he argue the Commonwealth failed to meet its obligations on the dates in question. Instead, Defendant's argument appears to be that the Commonwealth's lack of due diligence in locating him until November 5,2020, is an insurmountable obstacle to their ability to prevail under Rule 600.
However, we believe that such a finding would ignore the plain language of Rule 600. Rule 600(C)(1) talks about some "periods of delay" being included in the computation and "other periods of delay" being excluded. The language mandates that due diligence be examined by these individual "periods" rather than by assessing a grade to the Commonwealth's due diligence or lack thereof over the entire time from the filing of the Complaint to trial. Indeed, much of the appellate litigation surrounding Rule 600 involves the parsing of distinct periods during the timeline of a case. Otherwise, any single instance of lack of due diligence would render all time excludable under the Rule. Such is not the law of this Commonwealth.
Accordingly subtracting the fifty (50) days in question from the 610 total days, we are still left with 560 days. Therefore, the controlling issue becomes the 256 days during which the j parties agree some incarnation of an emergency Order was in effect. At the Rule 600 Hearing, Defendant offered the same argument addressed above; that the Commonwealth's lack of due diligence in locating him constituted a fatal blow to their defense of his Motion.
We are not unsympathetic to Defendant's position, in that it is likely that the Commonwealth's lack of attention to this case until November 5th would have been the situation even if a statewide judicial emergency did not exist. However, Defendant's argument ignores the plain language of the emergency Orders that "Rule 600(C) [was]... suspended in all judicial districts during the period of the statewide judicial emergency" and that the "time period of the statewide judicial emergency SHALL BE EXCLUDED from the time calculation under Rule 600(C)." (Emphasis in original). The impact of the language is inarguable. It did not exclude time during the emergency if the Commonwealth was otherwise exercising due diligence. It excluded all time and suspended the Rule itself. Rule 600 is promulgated by the Supreme Court and that Court has the authority to suspend it.
We acknowledge that the pandemic had ancillary impacts on the judicial system such as personnel and staffing issues, and that it is possible that Defendant may have been located sooner in more normal times. Nonetheless, that question is ultimately not crucial to our decision.
Defendant also argues that the statewide emergency Orders allowed counties to maintain "essential functions", and that one of the suggested "essential functions" was "[b]ench warrant hearings pursuant to Rule of Criminal Procedure 150." Defendant's counsel presented this argument as follows:
[It] can then be inferred that if warrant hearings are still in fact an essential function that the service there of those warrants would also be considered necessary and essential and due diligence would not have been suspended during that timeframe for the service of these particular warrants.[Notes of Testimony, dated April 23,2021, pp. 11-12].
Defendant's argument is flawed. The warrant for Defendant was not a bench warrant subject to Rule 150, but an arrest warrant. Nonetheless, assuming, arguendo, that there was a bench warrant and that a Rule 150 Hearing could still be held during the judicial emergency, the purpose of that hearing would be to set bail. The mechanism to compel a dismissal of charges for a violation of Defendant's right to a speedy trial would be Rule 600, and it was suspended. For all intent and purpose, Rule 600 did not exist during the periods in question. Defendant can neither conjure a Rule 600 right from the fact that bench warrant hearings were deemed essential during the health emergency nor from his own concept of fairness. He cannot create his own remedy for the Commonwealth's lack of due diligence at times during his case.
Therefore, we hold that the 256 days of time during which an emergency Order suspended Rule 600(C) are excludable, and that, as of our denial of the Rule 600 Motion on . April 26,2021,304 days of includable time had elapsed since the filing of the Criminal Complaint.
Constitutional Right to a Speedy Trial
Defendant also appeals our denial of his claim of a violation of his constitutional right to a speedy trial. "The Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution guarantee a criminal defendant the right to a speedy trial." Commonwealth v. DeBlase, 665 A.2d 427,432 (Pa. 1995). The state constitutional right to a speedy trial is co-extensive with the federal constitutional right. Commonwealth v. Hailey, 368 A.2d 1261,1264 (Pa. 1977).
The standard to be applied in determining if the constitutional right to a speedy trial has been violated is the one prescribed by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Under the Barker analysis, the threshold question is whether "the delay itself is sufficient to trigger further inquiry." Commonwealth v. Glover, 458 A.2d 935,937 (Pa. 1983). Only if the delay is sufficient to trigger further inquiry do we undertake the remainder of the analysis.
In Commonwealth v. Pounds, 417 A.2d 597, 600 (Pa. J980), the Pennsylvania Supreme Court held that a delay of approximately twenty-three and one-half (23 Vi) months was sufficient to trigger further inquiry. Although the delay in Pounds was post-verdict sentencing delay, the Court employed the Barker test. Id. In the present case, the delay from the filing of the Criminal Complaint until the filing of Defendant's Motion to Dismiss on constitutional grounds was twenty-two (22) months. Therefore, Pounds dictates that we engage in further Barker analysis.
However, we note that a non-precedential decision of the Superior Court, which may be cited for its persuasive value pursuant to Pa. R.A.P. 126(b), held that "delays that do not result in a Rule 600 violation are not 'sufficient to trigger further inquiry' under Barker" Commonwealth v. Lippincott, 236 A.3d 1088 (Pa. Super. 2020) (internal citations omitted). See also, Commonwealth v. Preston, 904 A.2d 1,15 (Pa. Super. 2006) (the Sixth Amendment is not violated when trial takes place a short time beyond the Rule 600 deadline). By this reasoning, Defendant herein would not be entitled to further inquiry under Barker. Nonetheless, we are unconvinced of the appropriateness of applying this line of cases and, as we believe the Barker balancing test provides guidance on the resolution of this matter, we choose to engage in that analysis.
We are uncertain of the proper application of the Preston /Lippincott, rationale to the instant matter. First, we struggle to discern a scenario in which the constitutional speedy trial right would even be litigated if a Rule 600 violation had already been established. Second, we are hesitant to suggest that a Rule 600 violation constitutes a prerequisite to a finding of a Sixth Amendment violation where, as in this case, Rule 600 was suspended for a large portion of the time in question. Therefore, as our ultimate opinion is that Defendant's constitutional challenge fails under the Barker balancing test, we will engage in that analysis.
The next step of the evaluation of Defendant's claim is to "balance the length of the delay with the reason for the delay, the defendant's timely assertion of his right to a speedy trial, and any resulting prejudice to the interests protected by the right to a speedy trial." Glover, supra.
We believe that the delay in bringing Defendant to trial was the product of a failure to exercise due diligence by Agent Zitsch. While we acknowledged in Footnote 7 herein that the ongoing national health emergency may have contributed to that failure, we nonetheless conclude that, based on the record before us, the legal cause of the delay was the failure to exercise due diligence in locating Defendant. We have already identified the length of the delay v as twenty-two (22) months.
Defendant alleges that he made a timely assertion of his right to a speedy trial in that he was served with the arrest warrant on February 11,2021, and filed his Rule 600 Motion on March 26,2021. We agree with Defendant's statement of the relevant dates. However, we point out that Defendant did not assert his constitutional right to a speedy trial on March 26th. On that date, Defendant only alleged a violation of Pa. R. Crim. P. 600. Only after This Court denied that Motion, pointing out in its Opinion that that the Pennsylvania Supreme Court's Orders suspending Rule 600 maintained the constitutional right to a speedy trial, did Defendant then assert such constitutional violation.
Balancing these factors with Defendant's claims of prejudice, we find that Defendant's constitutional speedy trial claim fails. In so finding, we are mindful of the relevant case law and the admonition of the United States Supreme Court. "A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence.. .should be weighed less heavily." Barker, supra at 531.
Prejudice must arise from an infringement on an interest the speedy trial right is designed to protect. The interests identified are:
a) Prevention of oppressive pretrial incarceration.
b) Minimization of an accused's anxiety and concern.
c) Limitation on the possibility that the defense will be impaired.Id. at 532.
Before we address Defendant's articulated bases for his claim of prejudice, we wish to first look to how Barker addressed the prejudice component before that Court. In Barker, there was no claim that any witness became unavailable due to the delay. Id. at 534. Instead, the defendant claimed that during the five (5) year delay, four (4) years of which were attributable to actions of the prosecution, he lived "under a cloud of suspicion and anxiety." Id. The Court found that any prejudice was minimal where the prosecution did not deliberately attempt to hinder the defendant and denied the claim of error. Herein, Defendant also does not claim that any witness became unavailable, the delay was due to negligence rather than intention, and was less than half the amount of time as the delay in Barker.
Turning to Defendant's Motion, he has presented three (3) specific allegations of prejudice.
First, Defendant suggests that the delay in serving the arrest warrant left him "unable to secure a monetary bail condition" and prejudiced "his ability to accumulate time credit." In presenting his argument in this way, Defendant acknowledges that he cannot claim undue pretrial incarceration since he was incarcerated during the entire period anyway for the case in Cumberland County.
We are unpersuaded by Defendant's claim of prejudice in this regard. On May 26,2020, Defendant was sentenced in Cumberland County at docket CP-21-CR-2094-2019 to a term of one (1) to three (3) years in state prison. He was awarded time credit of 345 days and was still serving this sentence when he filed his Motions to Dismiss at the present docket. Therefore, he would not be entitled to any time credit towards the case before This Court. See, Taglienti v. Department of Corrections, 806 A.2d 988,992 (Pa. Cmwlth. 2002) (credit on a sentence can only be given when it has not already been credited against another sentence).
Even if we engage in utter speculation and postulate that but for the delay in this case Defendant may have been sentenced in Dauphin County before Cumberland County and would have then been entitled to time credit herein, the result would still be effectively the same. In that scenario, Defendant would not be entitled to time credit in Cumberland County and the aggregate sentence between the two (2) counties would have the same net effect.
Second, Defendant argues that the delay resulted in prejudice because he "lacked the opportunity to obtain or be appointed counsel and begin a timely preparation of any defense investigation." However, this argument is only a statement of how the delay could have caused him prejudice, not how it actually prejudiced him. He offers no specific examples of how his defense was hampered in any way by the delay.
Third, Defendant contends that his removal to Dauphin County Prison from SCI-Phoenix in advance of his Rule 600 Hearing and trial caused him to be removed from his regular programming, "creating uncertainty as to how such interruption will be addressed upon his return and the long-term consequences and prejudice such interruption will have on his eventual parole." Defendant seems to be extending the recognized interest of the speedy trial right in preventing oppressive pretrial incarceration to the prevention of the extension of post-sentence incarceration in an entirely different case.
We understand Defendant's argument to be that any delay in his prison programming will result in a concomitant delay in his parole from the Cumberland County sentence. Once again, Defendant is offering mere speculation as to the possible consequences of his transfer to Dauphin County Prison. We do not believe the prejudice claimed flows from an interest the speedy trial right is designed to protect. See, Barker, supra. Defendant cannot assume that he would even be paroled from his sentence. "Although a prisoner has a right to apply for parole upon the expiration of his minimum term, under Pennsylvania law a prisoner has no absolute right to be released from prison upon the expiration of that minimum term." Bowman v. Pennsylvania Bd. of Probation and Parole, 709 A.2d 945, 948 (Pa. Cmwlth. 1998).
Therefore, considering the relatively short delay compared to the one found insufficient in Barker and the absence of any actual prejudice, we believe Defendant's constitutional claim lacks merit.