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[U] Commonwealth v. Piner

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
STEPHEN M. PINER, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
STEPHEN M. PINER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on October 2, 2012 in the Court of Common Pleas of Blair County, Criminal Division, No(s): CP-07-CR-0000140-2012, CP-07-CR-0000141-2012, CP-07-CR-0000143-2012, CP-07-CR-0000144-2012, CP-07-CR-0000146-2012, CP-07-CR-0000148-2012, CP-07-CR-0000149-2012, CP-07-CR-0000150-2012, CR-07-CR-0000151-2012, CP-07-CR-0000153-2012, CP-07-CR-159-2012, CP-07-CR-0000160-2012, CP-07-CR-0000161-2012, CP-07-CR-0000163-2012, CP-07-CR-0001026-2012

BEFORE: PANELLA, OLSON and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Stephen M. Piner ("Piner") appeals from the Orders denying his Omnibus Pretrial Motions and his Motion for Nominal Bail pursuant to Pa.R.Crim.P. 600 in this consolidated appeal. We affirm.

The trial court summarized the relevant history underlying the instant appeal as follows:

On November 1, 2011, fourteen criminal complaints were filed by the Altoona Police Department charging [Piner] with violations of the Controlled Substance, Drug Device and Cosmetic Act, 35 Pa.C.S.A. § 780-113 et seq.[, ] and the Crimes Code, as a result of fourteen alleged incidents during a period [from] April 9, 2010 through August 15, 2011 ("Drug Delivery [Cases]"). On November 4, 2011, [Piner] was arrested pursuant to arrest warrants and preliminarily arraigned. His bail was set in the amount of $75, 000 for each of the criminal complaints. It was subsequently modified to $50, 000 on each criminal complaint. [Piner] was unable to post bail and continues to be incarcerated in the Blair County Prison.
On February 28, 2012, a criminal complaint was filed charging [Piner] with violations of the Controlled Substance, Drug Device and Cosmetic Act … and the Crimes Code[] as a result of alleged incidents of September 15, 2011 through November 4, 2011 ("Ancillary Drug Activity"). On March 3, 2012, [Piner] was arrested pursuant to the arrest warrant issued upon the filing of the criminal complaint and preliminarily arraigned. Bail was set in the amount of $750, 000. [Piner] was unable to post bail and[, ] as a result[, ] was and continues to be committed to the Blair County Prison.
On May 2, 2012, the Commonwealth filed a Notice of Joinder of the "Drug Delivery[ Cases]" and the "Ancillary Drug Activity [Case]".

Trial Court Opinion, 10/3/12, at 1-2.

On June 14, 2012, Piner filed a Motion for Nominal Bail pursuant to Pa.R.Crim.P. 600. After requesting an extension of time, Piner filed his Omnibus Pretrial Motions on July 26, 2012. Piner's Omnibus Pretrial Motions included a Motion to Dismiss the charges based on a violation of the compulsory joinder rule codified at 18 Pa.C.S.A. § 110.

After a hearing, the trial court denied Piner's Rule 600 Motion for Nominal Bail by an Opinion and Order entered on October 2, 2012. After a separate hearing, in an Opinion and Order entered of January 11, 2013, the trial court denied Piner's Motion to Dismiss based upon the compulsory joinder rule. Piner filed separate, timely appeals of the trial court's orders, after which this Court consolidated the appeals.

On appeal, Piner presents the following claims for our review:

1. Whether the [trial court] erred by denying the Motion for [] Nominal Bail pursuant to Pa.R.Crim.P. 600(e) for both the fourteen cases initially filed and the case subsequently filed, all of which had been joined, upon expiry of the 180-day period for entitlement to immediate release on nominal bail with the addition of appropriate excludable time?
2. Whether the trial court erred in denying relief on the Motion to Dismiss pursuant to 18 Pa.C.S.[A.] § 110 inasmuch as the evidence demonstrated that the requirements for the statutory bar had been met?

Brief for Appellant at 6.

Piner first claims that the trial court improperly denied his Motion for Nominal Bail. Id. at 17. Piner asserts that the 180-day time period had expired, "even after the addition of excludable time as provided at Pa.R.Crim.P. 600(C)." Brief for Appellant at 17. According to Piner, the Commonwealth's evidence, presented at the Rule 600 hearing, addressed the necessity for conditions to be imposed on Piner's release. Id. at 18-19. Piner argues that the two exhibits presented by the Commonwealth, as to the excludable time for Rule 600 calculations, were admitted "without any sponsoring witness under oath." Id. at 19.

Nevertheless, Piner argues that the trial court improperly excluded from its calculation of the mechanical run date, for the Drug Delivery Cases, the time period between the filing of the written Complaint and Piner's arrest. Id. According to Piner, this period can only be considered as excludable time based upon the satisfaction of Rule 600(C)(1)'s condition "that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence …." Brief for Appellant at 19-20 (quoting Pa.R.Crim.P. 600(C)(1)). Piner contends that the Commonwealth failed to present any evidence satisfying this requirement. Brief for Appellant at 20.

Piner further contends that his Motion for Nominal Bail and his Motion for an extension of time within which to file his omnibus pretrial motions, filed on June 14, 2012, and June 25, 2012, respectively, did not automatically render him unavailable for Rule 600 purposes. Id. at 20-21. Piner argues that the trial court erred by applying an automatic "unavailability" exclusion, for its Rule 600 calculations, based upon his pretrial Motions filed on June 14, 2012, and June 25, 2012. Id. at 20.

"Our standard of review in evaluating a Rule 600 claim is whether the trial court abused its discretion." Commonwealth v. Brock, 61 A.3d 1015, 1017 (Pa. 2013).

As our Supreme Court has explained,

Rule 600(A)(2) provides that when a defendant is incarcerated, trial shall commence no later than 180 days from the date the criminal complaint is filed. Rule 600(E) … is a corollary to Rule 600(A)(2), providing that no defendant shall be held in pretrial incarceration for a period exceeding 180 days. If a defendant is so held, he shall be entitled to immediate release on nominal bail upon petition. Rule 600(E), however, provides for excludable time in accord with Rule 600(C).[FN] This Rule allows that in computing the running of the 180 days, delays resulting from defendant's actions or requests shall be excluded. The sum of these rules is that an incarcerated defendant must be tried within 180 days of a written complaint, and if such trial does not timely occur, the defendant is entitled to immediate release on nominal bail after spending 180 days in confinement, exclusive of delays occasioned by defendant.
[FN] Pa.R.Crim.P. 600(C) provides:
(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(C).
Dixon, 907 A.2d 468, 473-74 (Pa. 2006) (footnote in original).
Rule 600(E) contemplates an increase in the number of days of pretrial incarceration in excess of 180 based only upon the exclusions of time referenced in Rule 600(C), attributable to the defendant, and not upon extensions of time pursuant to Rule 600(G) for actions taken diligently by the Commonwealth.

Dixon, 907 A.2d at 477.

Because Piner's case includes the joinder of two separate criminal complaints, there are two adjusted run dates to consider. The record reflects that the Commonwealth filed its first fourteen criminal complaints against Piner, i.e., the Drug Delivery Cases, on November 1, 2011.[1] Therefore, the mechanical run date[2] for Piner's trial in the Drug Delivery Cases was Sunday, April 29, 2012. Piner agrees with the trial court's exclusion of 62 days of excludable time based upon continuances requested by the defense to secure counsel for Piner. Brief for Appellant at 20. The exclusion of these 62 days resulted in an adjusted run date of June 30, 2012. Piner filed his Motion for Nominal Bail on June 14, 2012. As of that date, Piner was not entitled to nominal bail, as the adjusted run date for the Drug Delivery Cases had not yet occurred.

On June 25, 2012, Piner filed a Motion for an extension of time to file omnibus pretrial motions. The trial court granted the Motion on June 28, 2012. In granting the extension, the trial court expressly stated the following:

The [trial] court considers this request to be a continuance granted at [Piner's] attorney's request. If [Piner's] attorney does not consider this to be a continuance, he shall notify the court in writing and the matter will be scheduled for a hearing on his rule returnable.

Trial Court Order, 6/28/12. The record discloses no filing by Piner objecting to the trial court's characterization of Piner's Motion as a request for a continuance. Accordingly, the time period between June 25, 2012, and July 26, 2012 (the date upon which Piner filed his omnibus pretrial Motions), is excludable for Rule 600 purposes. Excluding this time period, the adjusted run date for the Drug Delivery Cases became July 30, 2012.

Piner filed his Omnibus Pretrial Motions on July 26, 2012, four days prior to the adjusted run date of July 30, 2012. Generally, the filing of a pretrial motion does not automatically render a defendant unavailable for purposes of Rule 600. See Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999) (applying former Rule 1100 (now Rule 600)). Rather, "a defendant is only unavailable for trial if a delay in the commencement of trial is caused by the filing of the pretrial motion." Id.

Piner's Omnibus Pretrial Motions, filed before the adjusted run date, sought, inter alia, the dismissal of the charges based on a violation of 18 Pa.C.S.A. § 110 (the compulsory joinder rule), and suppression of evidence seized by electronic surveillance. Omnibus Pretrial Motions, ¶¶ 8-15, 24-31. Because trial could not commence until the trial court resolved Piner's Omnibus Pretrial Motions, Piner was unavailable for trial until their disposition. Therefore, for Rule 600 purposes, the time period between the filing of the Omnibus Pretrial Motions (July 26, 2012) and the Order resolving those Motions is excludable time. See Commonwealth v. Chilcote, 578 A.2d 429, 432 (Pa.Super. 1990) (recognizing that "the time intervening between a defendant's filing of pre-trial motions and the trial court's disposing of such motions is also time which is properly excluded from the computation of the 180-day period under [former] Rule 1100 [now Rule 600] due to the unavailability of the defendant."); accord Hill, 736 A.2d at 589 (stating that "[c]onsistent with the plain language of Rule 1100(c) (now Rule 600(C)], courts have found that delays caused by pretrial motions constitute excludable time where the pretrial motion renders the defendant unavailable.").

On October 3, 2012, the trial court denied Piner's Motion for Nominal Bail in the Drug Delivery Cases. Because his Omnibus Pretrial Motions remained pending at that time, we discern no error by the trial court in denying Piner's Motion for Nominal Bail as as to the Drug Delivery Cases.

Piner also has sought nominal bail in his Ancillary Drug Activity Case. The trial court denied Piner's Motion for Nominal Bail as to the Ancillary Drug Activity Case, setting forth the following rationale:

The Ancillary Drug Activity [C]ase was filed on February 28, 2012. Thus, the mechanical run date is August 26, 2012.
On June 14, 2012 and June 25, 2012, [Piner] filed timely Pre-trial Motions. These Pre-trial Motions would stay the application of Rule 600, in both the Drug Delivery Cases and the Ancillary Drug Activity[ Case], which are joined.
In support of his Motion, [Piner] argues the application of Commonwealth v. Warren, 459 A.2d 1285 (Pa.Super. 1983). That case dealt with two criminal complaints arising from the same automobile accident. In this case, [Piner] and others were charged with committing numerous different offenses over a period of time. The testimony by the Commonwealth's witnesses is that as time went on, they discovered more and separate criminal acts on the part of [Piner and the others]. All the facts about the Warren case were known at the time of the initial criminal investigation. In contrast, the criminal investigation in regards to the cases [Piner] and his co-defendants are charged with involved lengthy grand jury testimony. The [c]ourt declines to follow the Warren case in this situation, finding it to be distinguished….

Trial Court Opinion, 10/3/12, at 5-6 (internal quotation marks omitted).

We agree with the trial court that the Warren case is distinguishable and provides no basis for Piner's claim. Further, the trial court denied Piner's Motion for Nominal Bail on October 3, 2012. As of that date, Piner remained unavailable, as the trial court had not Ruled on Piner's Omnibus Pretrial Motion. See Hill, 736 A.2d at 589; Chilcote, 578 A.2d at 432. Because the adjusted run date had not yet occurred, we discern no error by the trial court in denying Piner's Motion for Nominal Bail as to the Ancillary Drug Activity Case.

In his second claim, Piner argues that the trial court erred in denying his Motion to Dismiss pursuant to 18 Pa.C.S.A. § 110. Brief for Appellant at 24. In his Motion to Dismiss, Piner claimed that on August 19, 2009, Officer Christopher Brandt of the Altoona Police Department executed a search warrant of Piner's residence. Omnibus Pretrial Motion, at ¶ 9. Piner averred that the search warrant was based upon "trash pulls" from Piner's residence, which took place on August 11, 2009, and August 18, 2009. Id. at ¶ 8. Although Piner was charged with several drug offenses, on March 18, 2011, he pled guilty to 3 counts of possession of drug paraphernalia ("the former prosecution"). Id. at ¶ 18. The remaining charges were nolle prossed. Id.

In his Motion, Piner claimed that the current prosecution of the Drug Delivery Cases and the Ancillary Drug Activity Case "is based on the same criminal conduct or arose from the same criminal episode as the 'former prosecution[, ]' having been investigated by the same police officers using the same confidential informants." Id. at ¶ 12. Piner further avers that the prosecutors were aware of the former prosecution, as the current prosecution arose out of incidents that took place after Piner was charged in the former prosecution, but before his conviction in that prosecution. Id. Therefore, Piner asserts, Section 110 bars the "current prosecution" because of the "former prosecution." Id. at ¶ 15.

"Whether to join or sever offenses for trial is within the trial court's discretion and will not be reversed on appeal absent a manifest abuse thereof, or prejudice and clear injustice to the defendant." Commonwealth v. Armostrong, 74 A.3d 228, 233 (Pa.Super. 2013).

In its January 11, 2013 Opinion, the trial court addressed this claim and concluded it lacks merit. Trial Court Opinion, 1/11/13, at 2-9 (unnumbered). We agree with the sound reasoning of the trial court, as stated in its Opinion, and affirm on this basis. See id.

Orders affirmed.

Judgment Entered.

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