J-S56014-17

* Retired Senior Judge specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

THOMAS REYES

Appellant No. 2794 EDA 2016

Appeal from the Judgment of Sentence August 2, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0001743-2016

BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 21, 2017

Thomas Reyes appeals from the judgment of sentence of two and onehalf to five years incarceration imposed following his convictions for 

contraband, possession with intent to deliver, and possession of implements 

of escape. We affirm. 

On September 21, 2014, Lieutenant Antonio Olivarez, assigned to the 

internal security department at Graterford Prison, ordered an investigatory 

search of Appellant’s jail cell. At approximately 12:55 p.m., Correctional 

Officers Jeffrey McCusker and Shane Cuddeback proceeded to Appellant’s 

cell. At this time, the facility was “conducting count,” a procedure where

inmates are required to stand in their cells with the light on. Searches are 

conducted during the count process to guard against inmates alerting each 
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other. At the time of the search, all inmates on Appellant’s block were 

secured in their cells. 

Officer Cuddeback made entry and observed Appellant, who was 

seated on the bottom bunk, drop an item on the left side of the bed. Officer 

Cuddeback, per procedure, placed handcuffs on Appellant in order to search 

the cell. Officer Cuddeback recovered a cell phone, which inmates are 

prohibited from possessing, in addition to two fingertips from latex gloves. 

Witnesses testified that fingertips are commonly severed from a glove in 

order to knot and package narcotics. The fingertips were opened and found 

to contain material that was subsequently sent for testing, which revealed 

that the item was synthetic marijuana, commonly referred to as K2. The 

items were recovered in close proximity to Appellant. 

Lieutenant Olivarez explained that Appellant was continuously 

assigned to that particular cell since July 31, 2009, and last had a cellmate 

in February of 2014. Appellant’s possession of contraband prompted 

Lieutenant Olivarez to begin monitoring Appellant’s mail over the next year. 

The Commonwealth then introduced four letters, which generally made 

reference to the confiscation of the K2 and cell phone. These letters were 

sent on September 23, 24, and 30 of 2014 and April 9, 2015. 

Charges were filed against Appellant on May 5, 2015. Trial 

commenced on July 13, 2016, and culminated in a guilty verdict. On August 

2, 2016, the trial court imposed the aforementioned sentence. Appellant 
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filed a timely notice of appeal, and complied with the trial court’s order to 

file a concise statement of matters complained of on appeal. The matter is 

ready for review of Appellant’s two issues.

I. Did the trial court erroneously deny Appellant's Rule 600 

motion, where the Commonwealth failed to establish that it 

affirmatively acted with due diligence on the one occasion where 

it later argued for excusable delay?

II. Did the trial court erroneously deny Appellant's motion in 

limine to exclude certain letters purportedly written by Appellant, 

where the Commonwealth's witness never saw Appellant write 

these letters or any other document and where that witness was 

not qualified to testify as an expert?

Appellant’s brief at 5. 

Appellant’s first issue concerns an alleged failure of the Commonwealth 

to timely prosecute his case pursuant to Pennsylvania Rule of Criminal 

Procedure 600. Our standard and scope of review in evaluating Rule 600 

issues is well-settled. We determine 

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.
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Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013) (citing 

Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa.Super. 2007) (en 

banc) (alterations in original due to rule renumbering)). “The proper 

application of discretion requires adherence to the law, and we exercise 

plenary review of legal questions.” Commonwealth v. Baird, 975 A.2d 

1113, 1118 (Pa. 2009) (citing Commonwealth v. Chamberlain, 731 A.2d 

593, 595 (Pa. 1999)). Where the Commonwealth’s due diligence is at issue, 

we apply the following principle: 

As has been oft stated, “[d]ue diligence is fact-specific, to be 

determined case-by-case; it does not require perfect vigilance 

and punctilious care, but merely a showing the Commonwealth 

has put forth a reasonable effort.” 

Commonwealth v. Bradford, 46 A.3d 693, 701–02 (Pa. 2012) (quoting 

Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)). 

Rule 600, as rescinded and adopted July 1, 2013, requires the 

Commonwealth to try a defendant within one year of filing the complaint. It 

provides: 

(A) Commencement of Trial; Time for Trial

(1) For the purpose of this rule, trial shall be deemed to 

commence on the date the trial judge calls the case to trial, or 

the defendant tenders a plea of guilty or nolo contendere.

(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.
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Pa.R.Crim.P. 600. Since the complaint was filed May 5, 2015, the 

Commonwealth was required to try Appellant on or before May 4, 2016.

1

Trial commenced on July 13, 2016, which exceeded the applicable 365-day 

period by seventy days. However, the mere fact that more than 365 days 

had elapsed does not automatically entitle Appellant to discharge. The Rule 

sets forth a particular method for calculating “the time within which trial 

must commence:”

(C) Computation of Time

(1) 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 the time within which trial must 

commence. Any other periods of delay shall be excluded from 

the computation.

Pa.R.Crim.P. 600. “[T]he 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.” Comment, Pa.R.Crim.P. 600.

Appellant’s Rule 600 argument challenges the court’s finding that the 

thirty-four-day period spanning July 24, 2015, to August 27, 2015, a delay 

caused by a rescheduling of Appellant’s preliminary hearing, was not 

____________________________________________

1 2016 was a leap year. 
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included in the 365-day calculation. At the Rule 600 hearing, held on June 

3, 2016, the Commonwealth called Tanya Scarafone, the clerk for 

Magisterial District Judge Augustine. She explained that Appellant’s

preliminary hearing was scheduled for July 24, 2015; however, the district 

judge was out of the office that day. As a result, the hearing was 

rescheduled for August 27, 2015. Appellant did not dispute that the 

Commonwealth was prepared to proceed on the July date. 

We agree that this period of delay should be excluded in the Rule 

600(C)(1) computation. Appellant asserts that this time period must be 

included as the Commonwealth failed to exercise due diligence by failing to 

find another magistrate who could preside over the case. In support, 

Appellant notes that Ms. Scarafone testified that obtaining coverage from 

other magistrates was possible. Therefore, Appellant argues that since 

another courtroom could have accommodated the preliminary hearing, due 

diligence required the Commonwealth to seek an alternative courtroom. 

We disagree. Appellant’s argument is simply another way of saying 

that the Commonwealth’s due diligence obligation encompasses every 

theoretical action that could prevent a delay. We have long stated that due 

diligence “does not require perfect vigilance and punctilious care, but merely 

a showing the Commonwealth has put forth a reasonable effort.” Bradford, 

supra at 702 (citation omitted). As the Commonwealth observes, 
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“affirmative action is not synonymous with extraordinary measures.” 

Commonwealth’s brief at 11. 

In this respect, we note that in Commonwealth v. Anderson, 959 

A.2d 1248, 1250 (Pa.Super. 2008), we observed “The extent to which the 

Commonwealth must look for other available courtrooms is not clear.” 

However, in Anderson, the Rule 600 run date was set to expire on 

December 9, 2005, and the Commonwealth scheduled the case for trial on 

December 1, 2005. At that juncture, a number of postponements occurred, 

some of which were caused by the courtroom’s unavailability. We ultimately 

concluded that Rule 600 was not violated.

Anderson dealt with a quite different scenario than the situation 

herein, since therein, the Commonwealth was running up against the Rule 

600 limit. In contrast, Appellant’s case was nowhere near the Rule 600 time 

limit as of July 24. Whatever the extent of the Commonwealth’s due 

diligence obligations to seek another courtroom when a Rule 600 deadline is 

looming, we fail to see why due diligence requires the prosecution to seek 

another magistrate so early in the process. Hence, we agree that the thirtyfour-day period of time is not included in the 365-day calculation, due to the 

magistrate’s unavailability. Therefore, the Commonwealth did not cause the 

delay and the trial court’s determination was not erroneous. See 

Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (“[G]iven this 

Court's holding that periods of judicial delay are excludible from calculations 
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under the rule, courts of original jurisdiction must apply judgment in 

distinguishing between delay attributable to the court and that which should 

be allocated to a party.”) (citation omitted). 

Having established that this time period is not included, we note that 

the Rule 600 hearing occurred on June 3, 2016. As of that date, 395 days 

had elapsed, i.e., thirty days over the limit. Since we have determined that 

thirty-four days are not included in the calculation, four days remained in 

which to commence trial. The Commonwealth asserted that the time 

required for disposing of the pre-trial motions was not included. 

In Commonwealth v. Hill, 736 A.2d 578 (Pa. 1999), our Supreme Court 

established that the filing of a pre-trial motion does not automatically render 

a defendant unavailable for trial for purposes of the Rule. 

However, Hill established that delay in the commencement of a trial caused 

by the filing of pre-trial motions is not chargeable to the Commonwealth if 

the Commonwealth exercised due diligence in responding to the motion. 

The Commonwealth did so here. 

Finally, we note that the Commonwealth represented that it 

commenced trial on the earliest possible date following the Rule 600 

hearing. Commonwealth’s brief at 11. The Rule 600 hearing transcript 

indicates that the parties discussed setting the trial as soon as possible. 

Appellant makes no challenge to any time period other than the thirty-four 
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days, and we therefore find that Appellant is not entitled to relief on his Rule 

600 claim. 

We now address Appellant’s second claim, which assails the trial 

court’s denial of his pre-trial motion seeking exclusion of the inmate letters. 

We apply the following standard of review. 

We review a trial court's decision to grant a motion in limine for 

an abuse of discretion. Commonwealth v. Belani, 101 A.3d 

1156, 1160 (Pa.Super. 2014). “‘A trial court has broad discretion 

to determine whether evidence is admissible,’ and [its] ruling 

regarding the admission of evidence ‘will not be disturbed on 

appeal unless that ruling reflects manifest unreasonableness, or 

partiality, prejudice, bias, or ill-will, or such lack of support to be 

clearly erroneous.’” Id. (quoting Commonwealth v. Huggins, 

68 A.3d 962, 966 (Pa.Super. 2013)).

Commonwealth v. Ribot, 169 A.3d 64, 67 (Pa.Super. 2017). Pennsylvania 

Rule of Evidence 901 provides, in pertinent part, as follows:

Rule 901. Requirement of authentication or identification

(a) General provision. The requirement of authentication or 

identification as a condition precedent to admissibility is satisfied 

by evidence sufficient to support a finding that the matter in 

question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of 

limitation, the following are examples of authentication or 

identification conforming with the requirements of this rule:

. . . 

(4) Distinctive characteristics and the like. Appearance, contents, 

substance, internal patterns, or other distinctive characteristics, 

taken in conjunction with circumstances.

Pa.R.E. 901. 
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The trial court held a pre-trial hearing on this matter, wherein 

Lieutenant Olivarez testified that, as a result of this incident, he began 

monitoring Appellant’s mail. In authenticating that the letters were penned 

by Appellant, he explained that an inmate places mail in a designated 

mailbag, which is then secured. In addition, the Lieutenant stated that 

Appellant always used the same nickname as a signature in his letters. The 

envelope for these letters bore Appellant’s inmate number and the address 

of the recipient. Three of the letters introduced at trial were addressed to 

Roberta Calderon, Appellant’s girlfriend. Finally, to confirm that the letters 

were in fact written by Appellant, the Lieutenant examined other materials 

signed by Appellant, such as signature sheets at meetings in the jail, and 

testified that the writing matched. However, Lieutenant Olivarez confirmed

that he did not witness Appellant actually signing any document. 

We extensively examined the issue of authentication of letters in 

Commonwealth v. Brooks, 508 A.2d 316 (Pa.Super. 1986), which 

explained the basic principles. 

Generally, two requirements must be satisfied for a document to 

be admissible: it must be authenticated and it must be relevant. 

In other words, a proponent must show that the document is 

what it purports to be and that it relates to an issue or issues in 

the truth determining process. Specific evidentiary rules have 

developed for authenticating writings such as letters. These rules 

are necessary because of the problems involved in ascertaining 

the authorship of documents. As one commentator notes, 

“[m]ost documents bear a signature, or otherwise purport on 

their face to be of a certain person's authorship.” 7 

Wigmore, Evidence § 2130 at 709 (Chadbourn rev. 1978). It 
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would be too easy to assume that a letter bearing the signature 

of “X” was authored by “X”. In order that such an unsupported 

assumption not be the foundation of authentication, the 

requirement for admission of a document such as a letter is a 

prima facie case that the document is what it purports to be. . . . 

A document may be authenticated by direct proof, such as the 

testimony of a witness who saw the author sign the document, 

acknowledgment of execution by the signer, admission 

of authenticity by an adverse party, or proof that the document 

or its signature is in the purported author's handwriting . . . . 

A document may also be authenticated by circumstantial 

evidence, a practice which has been uniformly recognized as 

permissible.

Id. at 318 (footnotes and some citations omitted). 

We find that circumstantial evidence provided a sufficient basis to 

authenticate the letters. Significantly, the letters were introduced together 

with their envelopes, which included Appellant’s designated inmate number. 

Furthermore, the letters included details of the crime in question within days 

of the incident. In Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008), 

our Supreme Court reviewed an ineffectiveness claim challenging appellate 

counsel’s failure to pursue a preserved objection regarding the introduction 

of inmate mail. As herein, Collins involved letters written by the defendant 

while he was in jail, imploring a witness not to testify against the defendant. 

The Court explained there was no arguable merit to the ineffectiveness 

claim. 

[T]he Commonwealth counterargues that the letters were 

authenticated “by their distinctive characteristics, taken in 

conjunction with the circumstances of the case, as having been 
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written by [appellant].” Commonwealth's Brief at 64–65. In 

particular, the Commonwealth notes that the letters: were 

mailed from the prison in which appellant was incarcerated; 

contained appellant's unique seven-digit prison identification 

number; urged a course of conduct that would benefit appellant 

and only appellant; and identified appellant's trial counsel by 

name. 

. . . . 

We agree with the Commonwealth that the trial court's decision 

to admit the two letters was well within its discretion. The 

circumstances cited by the PCRA court and the Commonwealth 

are more than sufficient, when considered in their totality, to 

authenticate the letters. We further note that the first letter 

mentioned trial counsel's name in the context of the defense's 

trial strategy of shifting suspicion for the murder away from 

appellant and toward Cofer; that the second letter referred to 

the first one; and that the letters were dated within several 

weeks of Cofer's July 14, 1992 police statement, which the first 

letter referenced. Because appellant's underlying claim of trial 

court error lacks arguable merit, his derivative ineffectiveness 

claim did not warrant an evidentiary hearing.

Id. at 266 (citations to transcript omitted). Therefore, in Collins the letters 

were admitted without any reference to opinions regarding the handwriting. 

We find that the court did not err in admitting the evidence. As in 

Collins, these letters contained Appellant’s unique prisoner number, 

referenced specific details of the crimes, specifically referred to the seizure 

of K2, and three of the letters were sent less than a week after the incident 

in question. These circumstances demonstrate that the trial court did not 

err in permitting the introduction of the evidence, and we affirm on that 
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basis as it is supported by the record.2 See Commonwealth v. Moser, 999 

A.2d 602, 606, n. 5 (Pa.Super. 2010).

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2017

____________________________________________

2 We note that the Commonwealth responded to Appellant’s authentication 

claim on the basis that Lieutenant Olivarez could offer lay opinion testimony 

that Appellant wrote the letters. Assuming arguendo that Appellant 

preserved a challenge to the introduction of statements made by Lieutenant 

Olivarez as to authorship based on the handwriting, as opposed to the 

introduction of the evidence itself, we deem any such error harmless as the 

evidence was properly authenticated and introduced.