Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth of Pennsylvania v. Michael Diaz

August 22, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MICHAEL DIAZ, APPELLANT



Appeal from the Judgment of Sentence entered January 9, 2012, in the Court of Common Pleas of Berks County, Criminal Division, at No(s): CP-06-CR-0001652-2010.

The opinion of the court was delivered by: Allen, J.:

J-S48010-12

BEFORE: ALLEN, LAZARUS, and OTT, JJ.

OPINION BY ALLEN, J.:

Michael Diaz, ("Appellant"), appeals from the judgment of sentence imposed following his conviction for persons not to possess firearms.*fn1 We affirm.

The trial court summarized the pertinent factual background as follows:

On April 17, 2010, Troopers Brendan Connor and Andrew Margolin of the Pennsylvania State Police were working the driving under the influence detail on North 9th Street in Reading, Pennsylvania. The Troopers observed a green station wagon driven by [Appellant] with an inoperable front headlight. The Troopers initiated a stop, and upon asking [Appellant] for his paperwork, Trooper Connor noticed that the inspection and emissions stickers looked fraudulent. Trooper Connor asked [Appellant] to step out of the vehicle to get a closer look at the sticker. Trooper Connor observed that all of the individuals in the vehicle were wearing blue bandanas, and [Appellant] was wearing a black leather jacket with the word "Assassinators" emblazoned on it. Trooper Connor asked [Appellant] if he had any weapons on him. After denying possession of a weapon, Trooper Conner patted down [Appellant]. During the pat-down, Trooper Conner felt a hard metal object in the shape of a revolver that he knew was a gun. Trooper Connor seized the loaded gun, a .32 Caliber revolver, and detained [Appellant]. [Appellant] does not have a valid license to carry a firearm.

Trial Court Opinion, 4/2/12, at 3 (citations to notes of testimony omitted).

The trial court also detailed the somewhat convoluted procedural history of this case:

After [Appellant's] April 17, 2010 arrest, Appellant was charged with six offenses. On July 9, 2010, [Appellant] made a motion to sever Count 1, the offense at issue here [persons not to possess firearms], from the remaining five counts. On November 17, 2010, a jury found [Appellant] guilty of Count 2, Firearms not to be Carried Without a License, in violation of 18 Pa.C.S.A. § 6106(a)(1). The same day, [the trial court] found [Appellant] guilty of four related summary traffic offenses. On December 27, 2010, [the trial court] sentenced [Appellant] to not less than 42 months nor more than 7 years of incarceration in a State Correctional Facility with 254 days credit for time served. On January 24, 2011, [Appellant] timely appealed his conviction and Judgment of Sentence. On February 1, 2011, while his appeal was still pending, [Appellant] filed a Petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9451 et. seq. (PCRA). On February 3, 2011, [the trial court] dismissed the PCRA Petition without prejudice. [Appellant] timely filed a Statement of Matters Complained of on Appeal, and the Superior Court affirmed [Appellant's] Judgment of Sentence on December 14, 2011.

On March 28, 2011, a jury found [Appellant] guilty of the remaining count, Count 1, Person Not to Possess, Use, Manufacture, Control, Sell, or Transfer firearms [at issue here in this appeal]. [Appellant] was originally scheduled to be sentenced on April 7, 2011, but [Appellant] was inadvertently transferred to [the] State Correctional Institute at Graterford for classification. [Appellant] originally was sent to SCI Camp Hill, and the Court set a sentencing date for September 21, 2011. Due to an unexpected unavailability of the [trial court], the [trial court] rescheduled the sentencing for December 19, 2011.

On October 7, 2011, [Appellant] informed the [trial court] that he was transferred to SCI Greene, and [the trial court] set a sentencing via videoconferencing with SCI Greene for December 19, 2011. On December 19, 2011, a time conflict due to a lengthy resentencing interfered with SCI Greene's ability to videoconference with the [trial court], so sentencing was rescheduled for January 9, 2012. On January 9, 2012, [the trial court] sentenced [Appellant] to not less than four (4) nor more than eight (8) years of incarceration to begin on the date of sentencing with, by stipulation, no credit for time served.

On February 8, 2012, [Appellant] timely appealed the Judgment of Sentence. Pursuant to [trial court] order and Pa.R.A.P. 1925(b), on February 28, 2012, [Appellant] timely filed a Concise Statement of Errors Complained of on Appeal. [The trial court filed an opinion pursuant to Pa.R.A.P 1925(a)].

Trial Court Opinion, 4/2/12, at 1-3.

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

1. WHETHER APPELLANT'S DUE PROCESS AND SPEEDY TRIAL RIGHTS WERE VIOLATED WHEN THE [TRIAL] COURT DENIED APPELLANT'S ORAL MOTION OF FAILING TO SENTENCE HIM ACCORDING TO THE TIME LIMITS IN Pa.R.Crim.P. 704, AS APPELLANT WAS CONVICTED ON MARCH 28, 2011 AND HE WAS NOT SENTENCED UNTIL JANUARY 9, 2012, AND APPELLANT WAS PREJUDICED BECAUSE HE HAD BEEN SERVING AN EARLIER SENTENCE ON THE SEVERED CHARGES FROM THE SAME DOCKET AND RECEIVED A CONCURRENT SENTENCE FOR ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.