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Commonwealth v. Moore

Superior Court of Pennsylvania

July 1, 2019


          Appeal from the Judgment of Sentence Entered October 30, 2018 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003531-2017

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


          LAZARUS, J.

         James Lewis Moore appeals from the judgment of sentence, entered in the Court of Common Pleas of York County, after a jury convicted him of possession of child pornography[1] and dissemination of child pornography.[2] On appeal, Moore challenges the trial court's denial of his motion to dismiss pursuant to Pa.R.Crim.P. 600. Upon careful review, we affirm.

         The trial court set forth the factual and procedural history of this matter as follows:

On April 10, 2017, Officer Tiffany Pitts of the York City Police Department[] commenced an investigation of [Moore] at the request of the [Pennsylvania State Police ("PSP")]-Megan's Law Division. According to the PSP, an identified tipster alerted them that [Moore] owns a Facebook social media account, which could potentially be in violation of 18 [Pa.C.S.A.] § 4915.1 since [Moore] had not reported having a cell phone or social media account to the PSP.4
4In 2009, [Moore] entered guilty pleas in federal court to child pornography offenses[.] He was released from federal custody July 22, 2016, and required to register as a sex offender.
On April 25, 2017, after reviewing the questionable Facebook account which indicated the user's familial relationship with a known relative of [Moore], Officer Pitts secured a Facebook warrant from the Honorable [] Gregory Snyder which, upon execution, unveiled child pornography within private inbox messages. Immediately thereafter, Officer Pitts secured an electronics device warrant from [] Magisterial District Judge Joel N. Toluba. When Officer Pitts executed the search warrant the same afternoon at [Moore's] residence located at the LifePath, [3]. . . [Moore] was seated in the shelter's common area next to a cell phone he admitted belonged to him which was charging in an adjacent outlet. Officer Pitts Mirandized [Moore]; however, he made statements indicating that he was unsure whether his phone contained anything illegal. The officers seized [Moore's] phone and three additional non-functional cell phones located in [Moore's] personal storage area near where he slept.
The following day, [Moore] phoned his federal probation officer to confess that he had been untruthful to him in the past and that he was indeed in ownership of a cell phone that was confiscated by police the day before. He also admitted owning a Facebook account and surfing the internet using Wi-Fi. A forensic analysis of [Moore's] cell phone was completed on April 27, 2017, and revealed additional child pornography. [Moore] was swiftly placed under arrest.

Trial Court Opinion, 2/11/19, at 2-3.

         Moore was formally charged by criminal complaint filed on April 27, 2017. On July 5, 2018, he filed a motion to dismiss pursuant to Rule 600. After a hearing held on July 9, 2018, the trial court denied Moore's motion and he immediately proceeded to trial, after which a jury convicted him of the above offenses. Sentencing was deferred until August 28, 2018, and was subsequently continued until October 30, 2018, as a result of continuances requested by the Commonwealth and the defense. While Moore's sentencing was pending, on August 14, 2018, the Commonwealth filed notice of its intent to seek a mandatory minimum sentence of 25 years' incarceration pursuant to 42 Pa.C.S.A. § 9718.2.[4]

         On October 30, 2018, the trial court sentenced Moore to two concurrent, mandatory sentences of 25 to 50 years' imprisonment. Moore filed post-sentence motions, which were denied by the court on November 2, 2018. Moore filed a timely appeal, followed by a court-ordered concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). He raises the following question for our review:

The Commonwealth failed to bring [Moore's] case to trial within the time limits of [Rule] 600. The trial court erred when it counted time for a continuance issued by the district judge as excusable delay. The district judge provided no reason for the continuance, thus there is no evidence that the continuance was based on judicial delay. That time was, therefore, not excludable time and caused [Moore's] case to go over the Rule 600 time. The Commonwealth was not diligent in bringing [Moore's] case to trial.
The trial court's order denying [Moore's] motion to dismiss based on Rule 600 should be reversed.

Brief of Appellant, at 4 (unnecessary capitalization omitted).

         Our standard and scope of review in analyzing a Rule 600 issue are both well-settled.

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 ...

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