Appeal from the Judgment of Sentence September 29, 2011 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000013-2011
The opinion of the court was delivered by: Stevens, P.J.
BEFORE: STEVENS, P.J., OTT, J., and COLVILLE, J.*fn1
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lancaster County following Appellant's conviction by a jury on one count of rape, two counts of attempted rape, one count of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, ten counts of indecent assault, and two counts of corruption of minors.*fn2 Appellant contends (1) the trial court erred in failing to dismiss all charges pursuant to Pa.R.Crim.P. 600, as well as his constitutional right to a speedy trial; (2) the trial court erred in failing to dismiss all charges based on the prosecution's violation of Brady v. Maryland, 373 U.S. 83 (1963);
(3) the trial court erred in failing to provide Appellant with funds so that he could obtain a psychological expert to assist him in his Megan's Law*fn3 hearing; and (4) the trial court erred in failing to award Appellant a new trial since the prosecutor threatened a defense witness with incarceration and insinuated Appellant was not telling the truth. We affirm.
The relevant facts and procedural history are as follows: On April 20, 2001, Appellant was charged with various sex crimes with regard to K.L.E. (d.o.b. 1/23/91) and K.E. (d.o.b. 12/9/88), who is mentally disabled, and on December 28, 2001, the matter proceeded to a preliminary hearing. N.T. 7/14/11 at 216-218. During the preliminary hearing, then ten-year-old K.L.E. was very frightened and visibly nervous. N.T. 7/14/11 at 217-218. The Commonwealth called K.L.E. to the stand, and after K.L.E. answered basic biographical questions in order to establish her competency to testify, the prosecutor began asking K.L.E. questions regarding the abuse allegations. N.T. 7/14/11 at 219. K.L.E. "froze. She clammed up. She started crying and she wouldn't speak. She wouldn't proceed beyond that."
N.T. 7/14/11 at 219. After it became apparent to the prosecutor that K.L.E. would be unable to participate in the courtroom proceedings, she "stopped the preliminary hearing and withdrew the charges [against Appellant]." N.T. 7/14/11 at 220.
Subsequently, K.L.E., who was then attending college, contacted the police, who interviewed K.L.E. N.T. 7/14/11 at 231. K.L.E. described in detail to the police the sex abuse perpetrated upon her and her sister by Appellant. N.T. 7/14/11 at 231. The police then questioned Appellant on May 5, 2010, and, after Appellant waived his Miranda*fn4 rights, he admitted that he had a problem with controlling himself with children. N.T. 7/14/11 at 237-241. However, Appellant told the police he would not talk about "what happened in Lancaster County" with K.L.E. and K.E., and he stated, "Nothing I'm going to say to you is going to help me." N.T. 7/14/11 at 242.
Following the interview with Appellant, on June 18, 2010, the police filed a new criminal complaint against Appellant, charging him with various sex crimes with regard to K.L.E. and K.E. On March 7, 2011, Appellant filed several counseled pre-trial motions, including one seeking to dismiss all charges pursuant to Pa.R.Crim.P. 600 and his constitutional right to a speedy trial. Therein, Appellant suggested that the delay from December 28, 2001, when the initial charges were withdrawn, to June 18, 2010, when a new criminal complaint was filed, should not be tolled in computing time under Rule 600. Appellant further suggested that the Commonwealth's reason for the delay, i.e., that K.L.E. could not adequately remember the events, was insufficient to overcome the nearly ten year delay in prosecuting Appellant. Following the Commonwealth's response to Appellant's pre-trial motions to dismiss, by order entered on April 21, 2011, the trial court denied Appellant's pre-trial motion to dismiss.
On July 11, 2011, Appellant filed a counseled motion in limine seeking to compel, inter alia, disclosure of State Police Trooper Linda Gerow's personnel file and "contact information of witnesses that provided exculpatory statements regarding the defendant." The trial court denied the motion, and on July 14, 2011, the matter proceeded to a jury trial, following which Appellant was convicted of the aforementioned charges. The trial court deferred sentencing and ordered Appellant to undergo an assessment by the Sexual Offenders Assessment Board. On September 27, 2011, Appellant filed a counseled motion seeking funds for Appellant to obtain a psychological expert to assist him at the Megan's Law hearing. The trial court denied Appellant's request, and following a hearing on September 29, 2011, the trial court found Appellant to be a sexually violent predator for Megan's Law purposes and sentenced him to an aggregate of twenty-one years to forty-two years in prison. Appellant filed a timely post-sentence motion, which the trial court denied, and this timely counseled appeal followed. The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the trial court filed a responsive Pa.R.A.P. 1925(a) opinion.
Appellant's first contention is the trial court erred in failing to dismiss all charges pursuant to Pa.R.Crim.P. 600. Specifically, Appellant alleges the commencement date for Rule 600 purposes is from when the initial criminal complaint was filed in 2001. That is, he contends the delay from December 28, 2001, when the initial charges were withdrawn, to June 18, 2010, when a new criminal complaint was filed, should not be tolled in computing time under Rule 600.
We conduct our review of the trial court's order denying [Appellant's] motion to dismiss as follows:
The proper scope of review [...] is limited to the evidence of record of the [Pa.R.Crim.P.] 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 [Pa.R.Crim.P.] 600.
[Pennsylvania Rule of Criminal Procedure] 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 [Pa.R.Crim.P.] 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 ...