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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM DRUMMOND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1998 EDA 2015

Appeal from the Judgment of Sentence June 9, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0004390-2013

BEFORE: OTT, SOLANO, and JENKINS, JJ.

MEMORANDUM BY OTT, J.: FILED FEBRUARY 24, 2017

William Drummond appeals from the judgment of sentence imposed 

on June 9, 2015, in the Court of Common Pleas of Philadelphia County 

following his conviction by a jury on charges of burglary, criminal trespass, 

possessing an instrument of crime, and terroristic threats.1 Drummond 

received an aggregate sentence of ten to 26 years’ incarceration. In this 

timely appeal, Drummond raises two issues; he claims the trial court (1) 

erred in failing to grant his motion to dismiss pursuant to Pa.R.Crim.P. 600 

(regarding speedy trials), and (2) abused its discretion in imposing a 

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1 18 Pa.C.S. §§ 3502(c)(1), 3503(a)(1)(ii), 907(a) and 2706(a)(1), 

respectively.
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manifestly excessive sentence. After a thorough review of the submissions 

by the parties, relevant law, and the certified record, we affirm.

The underlying facts of this matter, as recited by the trial court in its 

Pa.R.A.P. 1925(a) opinion are as follows:

In the early morning of December 12, 2012, Alexander Velez 

was asleep on the couch in his home at 2153 East Stella Street 

in Philadelphia. Also in the home with Mr. Velez were his 

brother, John Settle, and a friend of John’s named Joe. Around 

1:35 a.m., Mr. Velez was woken up by a loud banging sound and 

discovered that the front door, which was dead-bolted and barlocked, had been kicked in. Standing in the door-way was 

[Drummond]. Mr. Velez stood up and addressed [Drummond], 

asking “What are you doing? What is going on here?” At that 

point, Mr. Velez noticed Lou Mostak standing behind 

[Drummond] in the doorway. Mr. Velez had known Lou Mostak 

from the neighborhood as children and was reintroduced to him 

about two years prior to this incident by a mutual friend, Tracey. 

On the night in question, Mr. Velez had not invited [Drummond] 

or Lou Mostak to come to his home.

While Mr. Velez took his attention away from [Drummond] to 

address Lou Mostak, [Drummond] put a knife to Mr. Velez’s 

throat. Mr. Mostak stated, “I want Flacco. I want the watch.” 

Mr. Velez knew who Flacco was, but did not associate with him 

and did not have a watch belonging to Mr. Mostak. [Drummond] 

was holding the knife across Mr. Velez’s neck with his right hand. 

The knife was about 16-17 inches in length. Mr. Velez was 

yelling to Mr. Mostak, “Call your man off” to which Mr. Mostak 

responded[,] “I will call him off when you find the watch.”

While [Drummond] held the knife to Mr. Velez’s throat, Mr. Velez 

held the blade with his left hand to keep the knife from digging 

into his neck and received a deep laceration on his left pinky 

finger. At this point a neighbor, believed to be named Will, 

happened to walk by and see the door wide open. While the 

neighbor distracted [Drummond] and Mr. Mostak, Mr. Velez 

pushed [Drummond’s] right wrist away from him and was able 

to escape the house. Mr. Velez ran out of his house about a 

block and a half to the home of another neighbor named Pam 
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and stayed there about five minutes. As Mr. Velez was running 

out of his house, [Drummond] and Mr. Mostak followed him. Mr. 

Velez ran past a vehicle belonging to Mr. Mostak. While running, 

Mr. Velez heard Mr. Mostak yell out “stop or I will shoot you.” 

Mr. Velez turned around and saw Mr. Mostak holding a gun. Mr. 

Mostak fired one shot, which did not hit Mr. Velez.

While at his neighbor Pam’s house, Mr. Velez [] called the police. 

After leaving Pam’s home, Mr. Velez returned home and Officer 

Kober was at his home. Mr. Velez was then taken to the police 

station where he spoke with Detective Aitken. Upon receipt of a 

search warrant of a home at 2311 Arthur Street, where Louis 

Mostak was living, police went to the property and found Mr. 

Mostak and [Drummond]. Both men were taken into custody. 

Based on the description given by Mr. Velez of the vehicle driven 

by Mr. Mostak and [Drummond], Detective Aitken obtained a 

warrant for the vehicle parked outside of 2311 Arthur Street. 

Upon searching the vehicle, Detective Aitken discovered a Bowie 

knife, hospital paperwork in the name of Louis Mostak, a check 

bearing the name Dream Machine Works Company, and a AAA 

card in the name of Louis Mostak, Detective Aitken noticed three 

small dots that he believed to be blood on the Bowie knife. 

Detective Aitken swabbed the Bowie knife and had another 

detective obtain a DNA sample from Mr. Velez. Miss Ja’neisha 

Hutley, a Forensic Scientist for the City of Philadelphia, testified 

that to a reasonable degree of scientific certainty, the three 

brown spots on the Bowie knife were blood. Another Forensic 

Scientist, Lynn Haimowitz, testified that the dots on the knife 

were positive for DNA and that the DNA was, to a reasonable 

degree of scientific certainty, a match to Mr. Velez.

Trial Court Opinion, 4/7/2016 at 2-4.

In his first claim, Drummond argues the trial court erred in failing to 

dismiss the charges against him when the Commonwealth failed to exercise 

due diligence in bringing him to trial within 365 days of the complaint being 

filed. Pa.R.Crim.P. 600(A)(2)(a) provides:
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(2) Trial shall commence within the following time periods:

(a) Trial in a court case in which a written complaint is filed 

against the defendant shall commence within 365 days 

from the date on which the complaint is filed.

Pa.R.Crim.P. 600(A)(2)(a).

The rule further states:

For purposes of paragraph (A), periods of delay at any stage of 

the proceedings caused by the Commonwealth when the 

Commonwealth has failed to exercise due diligence shall be 

included in the computation of time within which trial shall 

commence. Any other periods of delay shall be excluded from 

the computation.

Pa.R.Crim.P. 600(C)(1).

Here, the complaint was filed on December 14, 2012. Drummond filed 

his Rule 600 motion on June 23, 2014. It is important to recognize that Rule 

600 was amended on October 1, 2012, with those amendments becoming 

effective on July 1, 2013. Accordingly, Rule 600 changed during the 

relevant time period. In his motion to dismiss and Appellant’s Brief, 

Drummond refers to the new Rule 6002. Therefore, we analyze his 

argument using the current rule. The comment to Rule 600 provides two 

noteworthy, relevant, statements. First, 

[i]n 2012, former Rule 600 was rescinded and new Rule 600 

adopted to reorganize and clarify the provisions of the rule in 

view of the long line of cases that have construed the rule. The 

new rule incorporates from former Rule 600 the provisions 

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2

 Additionally, we note the motion to dismiss was filed almost one year after 

new Rule 600 became effective, and both the Commonwealth and the trial 

court analyzed the issue under the current version of the rule.
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concerning commencement of trial and the requirement of (A), 

and the 120-day or 180-day time limits on pre-trial 

incarceration, new paragraph (B). New paragraph (C), 

concerning computation of time and continuances, and new 

paragraph (D), concerning remedies, have been modified to 

clarify the procedures and reflect changes in law.

Pa.R.Crim.P. 600, Comment. 

The import of this comment is to reinforce the concept that the 

changes to Rule 600 do not represent so much an actual change in the rule, 

rather than a clarification of how the rule is to be interpreted and applied. 

The Comment further discusses the computation of time:

For purposes of determining the time within which trial mist be 

commenced pursuant to paragraph (A), paragraph (C)(1) makes 

it clear that any delay in the commencement of trial that is not 

attributable to the Commonwealth when the Commonwealth has 

exercised due diligence must be excluded from the computation 

of time Thus, the inquiry for a judge in determining whether 

there is a violation of the time periods in paragraph (A) is 

whether the delay is caused solely by the Commonwealth when 

the Commonwealth has failed to exercise due diligence.

Id.

This comment provides a very straight-forward method of computing 

time – only those periods of time solely attributable to Commonwealth, nondue-diligent delay, are to be counted toward the 365 days.

Pursuant to Drummond’s motion, 556 days elapsed. In the motion, 

Drummond argued,

Out of the 556 total days that had elapsed since the inception of 

this case to the trial date of June 23, 2014, a total of 5 days 

should be attributed to the defense.
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Motion to Dismiss, 6/23/2014, Conclusion at 8. The five days referred to in 

Drummond’s motion are from June 7, 2013 to June 12, 2013, when a 

preliminary hearing needed to be rescheduled due to Drummond not being 

able to attend. However, we are compelled to agree with the 

Commonwealth that there are an additional 208 days that cannot be counted 

against the Commonwealth. 

On June 12, 2013, the trial court set a trial date of January 6, 2014. 

This trial date was specified as the “earliest possible date” consistent with 

the trial court’s calendar. See Trial Court Opinion, 4/7/2016 at 11; Docket 

entry, 6/12/2013.3 There is no indication in the certified record that the 

Commonwealth had any control over the setting of this trial date. Pursuant 

to Commonwealth v. Jones, 886 A.2d 689, 702 (Pa. Super. 2005) (time 

between arraignment and first trial listing is not chargeable to the 

Commonwealth where trial court determined the trial date was the earliest 

possible date), this time must also be subtracted from the 556 days cited by 

Drummond.4 The five days and 208 days make a total of 213 days that 

cannot be charged against the Commonwealth for Rule 600 purposes. 

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3 Specifically, the docket entry states, in relevant part: “Continued for status 

of discovery on 7/3/13 and for a 3-day trial on 1/6/14 in Courtroom 608. 

Earliest possible date consistent with police, counsel’s and the Court’s 

schedules has been given.” (Emphasis added.)

4 We are aware that this issue has been accepted for review by our Supreme 

Court. See Commonwealth v. Leon Mills, 27 EAP 2016.
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Accordingly, 556 minus 213 equals 343 days. Therefore, Drummond is not 

entitled to relief.5

Drummond’s next claim is that the trial court abused its discretion in 

imposing a sentence beyond the aggravated range of the sentencing 

guidelines, relying only upon the perception of Drummond’s future behavior. 

Drummond’s claim is a challenge to the discretionary aspects of his 

sentence.

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. Commonwealth v. 

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant 

challenging the discretionary aspects of his sentence must 

invoke this Court's jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 

902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see Pa.R.Crim.P. 720; (3) whether 

appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). 

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5 Drummond entered into a nolo contendere plea on October 6, 2014. 

Pursuant to Rule 600, entry of a nolo contendere plea is deemed to be 

commencement of trial. See Pa.R.Crim.P. 600(A)(1). Drummond did not 

renew his Rule 600 motion prior to the plea. Drummond then withdrew his 

plea in December 2014. See Pa.R.Crim.P. 600(B)(4). This afforded the 

Commonwealth an extra 120 days to bring Drummond to trial. Drummond 

was tried by a jury in late January – early February, 2015, well within the 

120 day limit.
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Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing hearing 

or in a motion to modify the sentence imposed. 

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. Commonwealth v. 

Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial 

question exists “only when the appellant advances a colorable 

argument that the sentencing judge's actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the 

sentencing process.” Sierra, supra, at 912-13.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

Here, Drummond has clearly met the first three criteria to 

challenge his sentence. His appeal is timely, he preserved his claim of 

an improper sentence by filing a relevant post-sentence motion, and 

his appellant’s brief contains the appropriate Pa.R.A.P. 2119(f) 

statement. What remains is a determination of whether Drummond 

has presented our Court with a substantial question appropriate for 

review.

Drummond has claimed the trial court:

completely failed to conduct an individualized consideration as to 

Mr. Drummond’s rehabilitative needs as the Sentencing Code 

requires, especially given his age and dormant criminal record, 

dormant until a substance abuse problem clearly 

emerged/reemerged. Instead the lower court focused entirely 

on retribution and punishment.

Appellant’s Brief at 11 (Rule 2119(f) statement). A claim the court failed to 

achieve individualized justice and imposed an unduly harsh sentence raises a 
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substantial question. See Commonwealth v. Bowen, 55 A.3d 1254, 1263 

(Pa. Super. 2013). Therefore, we will address this issue.

We have read the relevant notes of testimony, including from both the 

trial and sentencing hearing. The record belies Drummond’s claim. At 

sentencing, the trial court was presented with a detailed summation of 

Drummond’s criminal and personal history. The personal history included a 

recitation of Drummond’s many work skills and potential work opportunities. 

Although Drummond’s mother had taken a protection from abuse order 

against him, he claimed the rift with his mother had been mended. He also 

claimed to have matured in discovering he had a daughter. The trial court 

read and reviewed the presentence investigation report and heard argument 

from both the Commonwealth and defense counsel. Before imposing 

sentence, the trial judge stated:

The Court: I have considered the presentence, mental health, 

prior record score, and the history of your offenses, the facts 

and circumstances in this case, the sentencing guidelines as well 

as the arguments of counsel and what you, Mr. Drummond[,] 

have said.

Twenty-four arrests, 15 convictions, 18 commitments. That’s a 

lot along with 8 revocations. And most interesting, you went to 

state prison it looks like twice....

[Drummond]: Just once.

The Court: Well, I have in 1991, Judge Clark had given you 2 

and-a-half to 5. Then I have Judge Anthony DeFino giving you 3 

to 6 years in 1990.

[Drummond]: It was altogether.
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The Court: I see. So he made his concurrent to hers?

[Drummond]: I came home in 2006.

The Court: Okay. Well, you managed to earn two state prison 

sentences, one from Judge Clark, which is not hard to do, and 

one from Judge DeFino, which is not that easy to earn. And 

despite 3 to 6 years – and that was for an aggravated assault 

[with] a weapon, it looks like a gun –

[Commonwealth]: With a firearm.

The Court: - and we have PIC, you come back and you come 

back in front of me for a large knife or whatever you want to call 

it, with a burglary, all sorts of DUIs in the meantime.

You have all sorts of skills and abilities but it seems like you’ve 

used them through your life to either threaten people, assault 

people, I don’t know, shoot at people. I don’t know what 

happened with this aggravated assault with the gun with Judge 

DeFino giving you 3 to 6 years and then multiple, multiple DUIs.

Mr. Drummond, I don’t know what it will take to stop you from 

committing other crimes, doing things. You say you were with 

the wrong people. I would think 3 to 6 years would have been 

the end of any type of the slightest criminal activity, even things 

like littering on the street, that 3 to 6 years in state prison for 

someone like yourself, I would have thought would would’ve 

taken care of things but the DUIs and then this case culminated 

and everything.

Based on what I’ve seen and what my concerns are about the 

extensive recidivism that’s occurred here and the extensive 

opportunities on probation and parole and the prior state 

sentence coupled with the facts and circumstances of this case 

and what I have read in the mental health presentence report, et 

cetera, I’m going to sentence you to the following...

N.T. Sentencing, 6/9/2015 at 19-21.

Judge Ehrlich clearly considered a wide range of factors before issuing 

the sentence. He stated ample reasons for imposing the sentence he did. 
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We perceive no abuse of discretion therein. Accordingly, Drummond is not 

entitled to relief on this issue. 

Judgment of sentence affirmed.

Judge Jenkins did not participate in the consideration or decision of 

this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/24/2017