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Commonwealth v. Wendel

Superior Court of Pennsylvania

June 7, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
JOSHUA A. WENDEL Appellant

         Appeal from the Judgment of Sentence June 27, 2016 In the Court of Common Pleas of Elk County Criminal Division at No(s): CP-24-CR-0000097-2015

          BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E. [*]

          OPINION

          STEVENS, P.J.E.

         This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Elk County following Appellant's conviction on the charges of simple assault and criminal mischief.[1] Appellant contends the trial court abused its discretion in denying his motion to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600. After a careful review, we affirm.

         The relevant facts and procedural history are as follows: On January 30, 2015, Appellant assaulted the nine-year-old victim, and on February 5, 2015, Police Officer Jason A. Miller filed a criminal complaint against Appellant in the Office of Magisterial District Judge Mark S. Jacob. A preliminary hearing was scheduled for March 10, 2015; however, by letter dated February 19, 2015, Officer Miller informed the magisterial district judge that he was "scheduled to be at work related training in Harrisburg on March 10, 2015." See Letter, dated 2/19/15. Thus, Officer Miller asked that Appellant's preliminary hearing be continued.

         The magisterial district judge rescheduled the preliminary hearing to March 17, 2015, noting such was necessary due to "Continuance requested by Jason A. Miller, Reason: Prosecution Unavailable-Police[.]" See Magisterial District Judge's Rescheduling Notice, dated 2/20/15. On March 17, 2015, a preliminary hearing was held, and all charges were bound over to the Court of Common Pleas.

         On March 31, 2015, the Commonwealth filed a criminal Information against Appellant, and on April 6, 2015, Appellant waived his formal arraignment. On April 9, 2015, Appellant requested a Bill of Particulars, and after the Commonwealth sent a letter indicating its refusal, Appellant filed a motion to compel answers to Bill of Particulars on April 23, 2015. The trial court held a hearing on the motion, and on June 22, 2015, the trial court filed an order granting Appellant's motion and directing the Commonwealth's response by June 30, 2015.

         On November 18, 2015, the Commonwealth filed a praecipe to list Appellant's case for a jury trial, and accordingly, Appellant's case was listed by the court for jury call on December 7, 2015, with voir dire to begin on December 14, 2015.

         In the meantime, on November 23, 2015, the Commonwealth answered Appellant's Bill of Particulars, and on November 24, 2015, Appellant filed a motion for relief relative to the Commonwealth's late filing of its answers. On December 7, 2015, the trial court held a hearing on Appellant's motion, and following a hearing, by order dated December 7, 2015, the trial court granted Appellant relief, indicating that jury call was continued until February 1, 2016, with voir dire to begin on February 8, 2016. The trial court specifically noted "this time [is] chargeable to the Commonwealth for purposes of Pa.R.Crim.P. 600." Trial Court Order, dated 12/7/15.

         On February 8, 2016, Appellant filed a motion to dismiss pursuant to Pa.R.Crim.P. 600, and on that same date, jury selection occurred. Subsequently, on March 28, 2016, the trial court held a hearing on Appellant's motion to dismiss.

         At the hearing, on direct-examination, Officer Miller confirmed that he personally requested a continuance of Appellant's March 10, 2016, preliminary hearing. N.T., 3/28/16, at 5-6. He testified that he made the request because he "was scheduled to go to [ ] leadership training in Harrisburg, Pennsylvania, on March 10, 11[, ] and 12." Id. at 6. He noted the training was scheduled well in advance of March 10, 2016, and it was for purposes of his employment. Id. Officer Miller completed the training and received a certificate for "20 hours of training on leadership and law enforcement." Id. at 7.

         On cross-examination, Officer Miller indicated that he did not have communication with the district attorney's office or otherwise discuss with that office his need for a continuance of the preliminary hearing. Id. at 17. Rather, "as a matter of routine course[, ]" he wrote directly to the magisterial district judge in order to get a continuance. Id.

         By order and opinion filed on April 1, 2016, the trial court denied Appellant's motion to dismiss pursuant to Pa.R.Crim.P. 600, and Appellant proceeded to a jury trial on April 7, 2016, following which he was convicted by the jury of simple assault. The trial court found Appellant guilty of the summary offense of criminal mischief.

         On June 27, 2016, Appellant was sentenced to an aggregate of thirty months' probation, with the first 45 days being served as house arrest without electronic monitoring. Appellant filed a timely post-sentence motion, which the trial court denied on November 4, 2016. This timely appeal followed, and all Pa.R.A.P. 1925 requirements have been met.

         On appeal, Appellant's sole claim is the trial court abused its discretion when it denied Appellant's motion to dismiss for the Commonwealth's failure to bring the matter to trial in a speedy fashion as required by Rule 600 of the Pennsylvania Rules of Criminal Procedure. Specifically, he alleges that the Commonwealth was not duly diligent as it relates to the delay attributed to Officer Miller's request for a continuance of Appellant's preliminary hearing.

         We review Appellant's Rule 600 argument according to the following principles:

In evaluating Rule [600] issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.
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 ...

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