Opinion
609 WDA 2023 J-A22002-24
10-25-2024
COMMONWEALTH OF PENNSYLVANIA v. DAMON HAMMOND Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered April 17, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009052-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM
MURRAY, J.
Damon Hammond (Appellant) appeals from the judgment of sentence entered following his jury convictions of one count each of involuntary deviate sexual intercourse with a person less than 16 years of age, unlawful contact with a minor, sexual assault, endangering the welfare of children, indecent assault of a person less than 13 years of age, indecent assault of a person less than 16 years of age, and indecent exposure. Appellant challenges the trial court's denial of his motion to dismiss pursuant to Pa.R.Crim.P. 600. We affirm.
The underlying facts are not relevant to the instant appeal, except to note the charges involved a single victim (the victim). The trial court summarized the procedural history:
The Commonwealth alleged the offenses occurred between 2002 and 2012, while the victim (born in 1997) was a minor. See Criminal Information, 7/1/19, at 1 (unpaginated); see also N.T., 1/9-17/23, at 77.
The criminal complaint in this matter was filed on July 1, 2019. Thus, the mechanical run date [under Rule 600] was July 1, 2020. See Pa.R.Crim.P. 600(A). A preliminary hearing was scheduled for July 23, 2019, but it was postponed at Appellant's request, as was the preliminary hearing set for August 1, 2019. The 23 days between the filing of the complaint and the initial preliminary hearing are attributable to the Commonwealth. The preliminary hearing was held on August 14, 2019, [resuming] the Rule 600 clock. This case was first listed for a pre-trial conference on November 21, 2019. At that conference, a jury trial was scheduled for March 26, 2020. The number of days between the preliminary hearing on August 14, 2019, and the first trial listing of March 26, 2020, is 226 days. Th[e trial] court held status conferences on December 12, 2019, and December 19, 2019.
Th[e] court held another status conference hearing on February 21, 2020. The original jury trial date was set for March 26, 2020, essentially the beginning of the Covid-19 pandemic and the resultant judicial shutdown. On March 18, 2020, the Pennsylvania Supreme Court suspended Rule 600. See In re General Statewide Judicial Emergency, 228 A.3d 1283, 1287 (Pa., filed Mar. 18, 2020). Subsequent orders extending the suspension of Rule 600 followed. "Rule 600 was suspended in Allegheny County from March 16, 2020, through October 1, 2021, subject to constitutional limitations." Commonwealth v. King, 296 A.3d 607 (Pa. Super. 2023). As a result of the continuing pandemic, [Appellant's] second trial date of June 25, 2020, and the third trial date of October 26, 2020, were also postponed.
[Appellant's] case, along with many others, was listed for jury trial and postponed due to Covid more than once. As a result of Covid, th[e] court's docket suffered a severe backlog of cases listed for jury [trials]. After the third postponement, this case was next scheduled to pick a jury in May 2021[,] when the [court] had
secured the use of the David L. Lawrence Convention Center for jury selection. Unfortunately, the Convention Center blocked the particular date set for [Appellant's] trial[,] which resulted in another unavoidable postponement….
[Appellant filed his first Rule 600 Motion on December 29, 2021.] Adding the 23 days from the filing of the complaint to the initial preliminary hearing, with the 226 days from the actual preliminary hearing to the first trial listing, and the 110 days from the end of the pandemic suspension of Rule 600 to the date th[e] court denied the first Rule 600 Motion, th[e] court arrived at a sum of 349 days attributable to the Commonwealth. As this period was less than 365 days, [the court] denied Appellant's first Rule 600 motion on [February 24], 2022.
Despite the October 1, 2021, end of the suspension of Rule 600, the first jury trial date th[e] court could provide after Covid shutdowns was July 11, 2022, due to the backlog of cases which resulted from the pandemic. The victim, who [served on active duty in the U.S. Navy,] had appeared at both preliminary hearings postponed by Appellant and the third preliminary hearing[,] which occurred after Appellant's motion to postpone was denied, and [] also had made travel arrangements to attend prior scheduled trial dates which were postponed due to the pandemic[. However, the victim] was unable to obtain permission from her commanding officer to attend the scheduled trial date of July 11, 2022, due to being deployed at sea on short notice aboard the U.S.S. Ronald Reagan. [On July 5, 2022, the Commonwealth moved to continue the trial due to the victim's unavailability. On July 7, 2022, following a status conference, the trial court granted the motion.] Because the victim was stationed in Japan until November 1, 2022, th[e] court continued the case to its next available [trial] date after November 1, 2022, which was January 9, 2023.
Appellant filed a second Rule 600 motion on July 27, 2022, alleging that the new trial date exceeded Rule 600 by at least 56 days. Th[e] court held a hearing on this motion on August 16, 2022. The Commonwealth filed a response to the second Rule 600 motion on September 27, 2022, and th[e] court held another hearing on the Rule 600 issue on October 20, 2022.Trial Court Opinion, 9/21/23, at 5-7 (footnotes omitted; some capitalization modified).
At the Rule 600 hearings, Assistant District Attorney Lisa Carey (ADA Carey) described the Commonwealth's communications with the victim and its efforts to secure her availability for trial on July 11, 2022. See generally, N.T., 8/16/22; N.T., 10/20/22. ADA Carey described her own communications with the victim, as well as those of a District Attorney's Office employee in charge of making travel arrangements, and an advocate from Pittsburgh Action Against Rape (PAAR). See N.T., 8/16/22, at 4-8, 14-20, 35-37; N.T., 10/20/22, at 5-16, 23-31, 35-38, 41-44, 66-67.
At the October 20, 2022, hearing, ADA Carey stated: "I did not [intend to present witness testimony]. It's my intention as an officer of the court to place on the record the efforts that were made[,] and some of that history I've obtained from the victim, some of it from my own email records[,] and some of it from contact with [an administrative secretary] in my front office who manages travel arrangements." N.T., 10/20/22, at 4. Appellant did not object. Id.
The trial court denied Appellant's second Rule 600 motion, finding as follows:
During [the victim's] deployment [at sea], she was not always able to respond promptly to communications from the Commonwealth. Furthermore, she was not notified of her deployments early enough to schedule trial dates around them. Nonetheless, the Commonwealth made efforts to ensure that the victim could appear at trial. Th[e trial c]court accepted a proffer that included an email chain from [ADA] Carey[, showing] that [ADA Carey] and a representative from PAAR [] maintained at a minimum monthly contact with the victim, keeping her abreast of the status of her case, including the next scheduled court date. [N.T., 10/20/22, at 60]. [ADA] Carey further proffered that the District Attorney's Office requests four to six weeks to arrange travel but has made arrangements in much less time[,] as the circumstances required. [Id. at 66-67]. However, the military required a four-to-six week lead time to ensure that the victim
received both leave and transportation for the trial. Th[e trial c]ourt found that the Commonwealth did everything within its control to secure the victim's ability to attend the July 11, 2022, trial date.Trial Court Opinion, 9/21/23, at 8 (emphasis added); see also N.T., 10/20/22, at 67 (trial court stating, "[T]he Commonwealth can't control the [victim's] military deployment. And that's the bottom line.").
Appellant's case proceeded to trial on January 9-17, 2023. The jury convicted Appellant of the above offenses. On April 17, 2023, the trial court imposed an aggregate sentence of 128 to 256 months' incarceration, followed by three years' probation.
Appellant filed a timely post-sentence motion, which the trial court denied. Appellant timely appealed. Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents a single issue for our review: "Whether the trial court erred in denying [Appellant's] second motion to dismiss the charges based on a violation of his rights under Pa.R.Crim.P. 600?" Appellant's Brief at 7.
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. Car l, 276 A.3d 743, 748 (Pa. Super. 2022). "The proper application of discretion requires adherence to the law, and we exercise plenary review of legal questions." Commonwealth v. Baird, 975 A.2d 1113, 1118 (Pa. 2009) (citation omitted).
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) 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.Carl, 276 A.3d at 748 (citation and brackets omitted).
Rule 600 mandates, in relevant part, the following:
[(A)](2) Trial shall commence within the following time periods.
(a) 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.
(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.
(D) Remedies
(1) When a defendant has not been brought to trial within the time periods set forth in paragraph (A), at any time before trial, the defendant's attorney … may file a written motion requesting that the charges be dismissed with prejudice on the ground that this rule has been violated. … The judge shall conduct a hearing on the motion.Pa.R.Crim.P. 600(A), (C), (D) (emphasis added).
When a Rule 600 motion involves Commonwealth-caused delay,
the onus is on the Commonwealth to demonstrate that it engaged in due diligence…. The Commonwealth must show due diligence by a preponderance of the evidence. See Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). "Due diligence is a fact-specific concept that must be 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." Commonwealth v. Moore, 214 A.3d 244, 249 (Pa. Super. 2019) (citation omitted).Commonwealth v. Wiggins, 248 A.3d 1285, 1289 (Pa. Super. 2021). "It is well-settled that the Commonwealth cannot be held to be acting without due diligence when a witness becomes unavailable due to circumstances beyond its control." Commonwealth v. Wendel, 165 A.3d 952, 957 (Pa. Super. 2017) (citation, quotation marks, and brackets omitted; emphasis added).
Here, Appellant argues that ADA Carey's "oral proffer at the October 20, 2022, hearing did not constitute competent evidence to establish the Commonwealth's burden of [establishing its] due diligence." Appellant's Brief at 40. Appellant maintains ADA Carey's proffer "could not be construed as evidence" because an attorney is "not permitted to act as both counsel and a witness in the same case," and because ADA Carey "was never sworn in." Id.; see also id. at 38-40 (citing Commonwealth v. Puksar, 951 A.2d 267, 280 (Pa. 2008) (regarding closing arguments in a jury trial, "it is well-settled that arguments of counsel are not evidence….")); Fid. Nat. Title Ins. Co. of New York v. Suburban W. Abstractors, 852 A.2d 318, 322 (Pa. Super. 2004) ("Generally, an attorney is not permitted to act as an advocate in a trial where he is likely to testify."); Tecce v. Hally, 106 A.3d 728, 731 (Pa. Super. 2014) (where the trial court did not administer an oath to two witnesses at a divorce hearing, the witnesses' "'testimony' was a nullity.")). Therefore, Appellant asserts, ADA Carey's "proffer amounted to a legal nullity." Appellant's Brief at 40. Appellant argues the Commonwealth failed to establish its due diligence because it presented no other evidence beyond ADA Carey's proffer. Id.
However, as Appellant did not raise this legal theory before the trial court, we deem it waived. "Issues not raised in the trial court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). We have observed that "a new and different theory of relief may not be successfully advanced for the first time on appeal." Commonwealth v. Deible, 300 A.3d 1025, 1035 (Pa. Super. 2023) (citation and quotation marks omitted); see also Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012) ("New legal theories cannot be raised on appeal."). Additionally, "to preserve evidentiary challenges for appellate review, a litigant must object at trial." In re Smith, 307 A.3d 140, 145 (Pa. Super. 2023) (where an appellant argued a "prosecutor's statements made during [a forfeiture] hearing [were] not evidence," we determined the appellant did not preserve the issue for appellate review because she "failed to object at trial.").
Here, Appellant did not object to ADA Carey's proffer before the trial court. Appellant did not assert the proffer was incompetent or inadmissible because ADA Carey was an attorney in the case, or because she was not under oath. During the October 20, 2022, hearing, the trial court made clear its intent to rely on ADA Carey's "proffer as an officer of the court," N.T., 10/20/22, at 58, and Appellant never argued such reliance was improper. See, e.g., id. at 18 (Appellant's counsel stating, "I don't want to interrupt [ADA] Carey's presentation of the facts."). Rather, Appellant maintained the proffer was simply insufficient to meet the Commonwealth's burden, and that other witnesses were necessary to supply information the proffer lacked. See id. at 40 (Appellant's argument that ADA Carey's "paper trail" of emails did not reflect all of the PAAR advocate's communications with the victim); id. at 39, 55, 64-65 (Appellant's argument that the Commonwealth failed to specify when and how the victim received notice of the July 11, 2022, trial date); id. at 56 (Appellant's argument that the Commonwealth needed a witness to "testify as to when [the victim] learned of her deployment.").
Because Appellant did not object to ADA Carey's proffer before the trial court, and did not raise the theory that the proffer was incompetent as evidence, he failed to preserve the argument for appellate review. Accordingly, we deem it waived. As Appellant's brief fails to develop other arguments, his issue merits no relief.
Judgment of sentence affirmed.
Judgment Entered.