J-A22042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

COLSAUN THOMAS BAILEY 

Appellant No. 410 MDA 2020

Appeal from the Judgment of Sentence imposed December 30, 2019

In the Court of Common Pleas of York County

Criminal Division at No: CP-67-CR-0006847-2018

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 16, 2020

Appellant, Colsaun Thomas Bailey, appeals from the judgment of 

sentence imposed in the York County Court of Common Pleas on December 

30, 2019, following his convictions of aggravated assault and possession of 

firearm prohibited, 18 Pa.C.S.A. §§ 2702(a)(4) and 6105(a)(1), respectively. 

Appellant contends the trial court abused its discretion when it failed to dismiss 

his case pursuant to Pa.R.C.P. 600 and further claims the evidence was 

insufficient to support his aggravated assault conviction. Following review, 

we affirm.

We provide the following factual background, based on our review of the 

of the trial testimony.

As of October 12, 2018, Appellant shared physical custody of his 

daughter with the child’s mother, Kendra Collier (“Collier”). Appellant and 
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Collier had been arguing that evening prior to the time Collier arrived at 

Appellant’s home to drop off the child at approximately 10 p.m. The child 

went into the home while Appellant and Collier continued to argue. Appellant 

went back inside, but Collier stayed, hoping to settle the disagreement. 

When Collier knocked on Appellant’s door, he opened it, but closed it 

when he saw Collier. When she knocked again, he came out of the house with 

a gun in his hand. Feeling threatened, Collier returned to her car. Appellant 

followed her. As Collier was getting into her car, she heard a gunshot. She 

returned to her home and called the police.

Hellam Township Police Sergeant Golder responded to Collier’s call. By 

coincidence, Sergeant Golder had stopped at his home around 10 p.m. to say 

good night to his children. His home was about a “ten second drive” or “30 

second walk” from Appellant’s apartment. Before leaving his home, Sergeant 

Golder heard a single gunshot. He canvassed the area for 30 to 40 minutes 

but could not find anything. 

After responding to another call, Sergeant Golder arrived at Collier’s 

home. He inspected her car and discovered a bullet hole in the back passenger 

side of her Honda CRV. He lifted the hatch and located a bullet in the leg of a 

stuffed animal that was in the trunk. He contacted his night partner, Officer 

Phillips, and asked him to secure the area around Appellant’s home while he 

returned to the residence with Collier. 
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After Officer Phillips arrived at Appellant’s home, he located a shell 

casing in the roadway in front of the apartment. Shortly thereafter, 

Appellant’s wife, Shyasia Bailey, returned home with the child after dropping 

Appellant off at work and stopping to visit her mother. She was advised by 

Officer Phillips and a detective who had arrived on the scene that she could 

not enter the home because they were in the process of securing a search 

warrant for the gun that was used in the shooting. She permitted them to 

enter the home and directed them to a closet in the apartment where she kept 

the 9 mm handgun, which was registered in her name. Ballistics determined 

that the bullet and shell casing were fired from that handgun. It was stipulated 

that Appellant was a person not to possess. 

Appellant was arrested on October 13, 2018, and was charged with two 

counts of aggravated assault and one count of persons not to possess. The 

docket reflects that an October 26, 2018 preliminary hearing was continued, 

with the “continuance reason” indicated as “Judge Unavailable.” The hearing 

was then scheduled for November 1, 2018, but was continued at the request 

of Appellant’s then-attorney. On November 20, 2018, the preliminary hearing 

took place and Appellant was formally arraigned on December 28, 2018. Trial 

counsel entered an appearance on February 1, 2019. As the trial court 

explained:

A pre-trial conference was held on February 7, 2019, during which 

the case was scheduled for trial during the March 2019 trial term. 

Trial terms occur every other month in York County. 
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On September 5, 2019, [Appellant’s] supervised bail was revoked 

as he violated the terms of supervised bail and incurred new 

charges and a warrant was issued for his arrest. On September 

19, 2019, a supervised bail revocation hearing was held at which 

[Appellant] was remanded to York County Prison. We note that 

Judge Trebilcock ordered that the case be placed on the 

September 2019 trial list, however the trial list is prepared well in 

advance and the September 2019 trial term ran from September 

9 through September 27. 

On November 4, 2019, the case was called at [the] call of the list 

before the Honorable Harry M. Ness, at which time it was 

determined the case would remain on the trial list. On the same 

date, counsel for [Appellant] filed a motion for dismissal due to an 

alleged violation of [Appellant’s] speedy trial rights under 

Pennsylvania Rule of Criminal Procedure 600.

The case was called for trial on November 7, 2019 before the 

Honorable Harry M. Ness. Just before trial the court heard 

testimony on [Appellant’s] Rule 600 motion and ultimately 

determined that Rule 600 was not violated and denied the motion.

Rule 1925(a) Opinion, 4/27/20, at 4-5 (some capitalization omitted).

At the conclusion of trial, the jury found Appellant guilty of one count 

each of aggravated assault and persons not to possess. On December 30, 

2019, the court imposed a sentence of two to four years in a state correctional 

facility for aggravated assault and a concurrent sentence of five to ten years 

for the firearms conviction. Following denial of post-sentence motions, 

present counsel filed this timely appeal. Both counsel and the trial court 

complied with Pa.R.A.P. 1925. 

Appellant presents two issues for our consideration.

1. Whether the trial court erred in denying [Appellant’s] Motion 

for Dismissal for Violation of Rule 600 where a hearing was not 

held and the Commonwealth presented no evidence to show it 
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exercised due diligence in bringing the case to trial within 365 

days where there were 6 days’ delay in question.

2. Whether the evidence was insufficient to sustain [Appellant’s] 

conviction for aggravated assault with a deadly weapon where 

the Commonwealth failed to prove [Appellant] intended to 

cause bodily injury to Kendra Collier. 

Appellant’s Brief at 5 (some capitalization omitted). 

With respect to Appellant’s first issue, our Supreme Court has explained 

the applicable standard and scope of review as follows:

We review a trial court’s denial of a Rule 600 motion for an abuse 

of discretion. Commonwealth v. Solano, 588 Pa. 716, 906 A.2d 

1180, 1186 (2006). “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 

. . . discretion is abused.” Commonwealth v. Wright, 599 Pa. 

270, 961 A.2d 119, 142 (2008) (citations omitted). “Our scope of 

review is limited to the record evidence from the speedy trial 

hearing and the findings of the lower court, reviewed in the light 

most favorable to the prevailing party.” Commonwealth v. 

Selenski, 606 Pa. 51, 994 A.2d 1083, 1088 (2010) (citing

Solano, 906 A.2d at 1186).

Commonwealth v. Burno, 154 A.3d 764, 793 (Pa. 2017). As this Court 

reiterated in Commonwealth v. Moore, 214 A.3d 244 (Pa. Super. 2019): 

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 of Rule 600 was not designed to insulate 

the criminally accused from good faith prosecution delayed 

through no fault of the Commonwealth.
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So long as there has been no misconduct on the part of the 

Commonwealth in an effort to evade the fundamental speedy trial 

rights of an accused, Rule 600 must be construed in a manner 

consistent with society’s right to punish and deter crime. In 

considering these matters . . ., courts must carefully factor into 

the ultimate equation not only the prerogatives of the individual 

accused, but the collective right of the community to vigorous law 

enforcement as well.

Id. at 248 (quoting Commonwealth v. Peterson, 19 A.3d 1131, 1134–35 

(Pa. Super. 2011) (en banc), aff’d, 44 A.3d 665 (Pa. 2012) (additional citation 

omitted)).

We first address Appellant’s contention that the trial court did not hold 

a hearing on his Rule 600 motion for dismissal. Appellant’s case was called 

for trial at the call of the list on Monday, November 4, 2019. That afternoon, 

Appellant filed his motion. Trial began on the morning of November 7, 2019. 

While no separate proceeding was scheduled, the transcript from November 7 

confirms that the trial court heard argument on the motion prior to bringing a 

jury down. The rule requires that “[t]he judge shall conduct a hearing on the 

motion.” Pa.R.Crim.P. 600(D)(1). The transcript reflects that the judge did 

conduct a hearing. We reject Appellant’s suggestion that the court did not 

hold a hearing on his motion. 

As for the merits of his motion, Appellant asserted that the adjusted run 

date for his case should be November 1, 2019. Motion for Dismissal, 11/4/19, 

at ¶ 24(b). During argument, Appellant’s counsel argued that the six-day 

delay resulting from the magistrate judge’s continuance (October 26 to 

November 1, 2018) was not excludable, nor was it excusable because the 
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Commonwealth did not demonstrate due diligence in bringing Appellant to 

trial. Notes of Testimony (“N.T.”), 11/7/19, at 6. The court determined that 

“judicial delay is not the result of a lack of due diligence by the Commonwealth 

and constitutes excludable time” and, therefore, the six-day delay in the 

instant case “was outside the power of the Commonwealth and therefore 

excludable due to judicial delay.” Rule 1925(a) Opinion, 4/27/20, at 9 (citing, 

inter alia, Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017); 

Commonwealth v. Carter, 204 A.3d 945, 948 (Pa. Super. 2019); 

Commonwealth v. Bethea, 185 A.3d 364, 372 (Pa. Super. 2018); 

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)).

In accordance with Pa.R.Crim.P. 600(A)(2)(a), it was required that 

Appellant’s trial commence within 365 days from the date on which the 

criminal complaint was filed against him. Rule 600(C)(1) provides that “[f]or 

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 shall be excluded from 

the computation.” Pa.R.Crim.P. 600(C)(1) (emphasis added). Here, it is 

clear that the six days of delay resulted solely from the magistrate judge’s 

continuance of the preliminary hearing and were not “caused by the 

Commonwealth.” Under the plain language of Rule 600(C)(1), that six-day 

period “shall be excluded from the computation.” Due diligence is not at 
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issue.1 Excluding those six days, Appellant was brought to trial within the 

allowable period. We find no abuse of discretion on the part of the trial court 

in denying Appellant’s motion for dismissal. Appellant’s first issue fails for lack 

of merit.

In his second issue, Appellant contends the evidence was insufficient to 

support his conviction of aggravated assault under 18 Pa.C.S.A. § 2702(a)(4). 

As this Court has explained:

Our standard of review regarding challenges to the sufficiency of 

the Commonwealth’s case is well settled. “In reviewing the 

sufficiency of the evidence, we consider whether the evidence 

presented at trial, and all reasonable inferences drawn therefrom, 

viewed in a light most favorable to the Commonwealth as the 

verdict winner, support the jury’s verdict beyond a reasonable 

doubt.” Commonwealth v. Patterson, [625 Pa. 104], 91 A.3d 

55, 66 (2014) (citation omitted). “The Commonwealth can meet 

its burden by wholly circumstantial evidence and any doubt about 

the defendant’s guilt is to be resolved by the fact finder unless the 

evidence is so weak and inconclusive that, as a matter of law, no 

probability of fact can be drawn from the combined 

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 

(Pa. Super. 2013) (en banc) (internal quotation marks and citation 

omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate 

court, we must review “the entire record . . . and all evidence 

actually received[.]” Id. “[T]he trier of fact while passing upon 

the credibility of witnesses and the weight of the evidence 

produced is free to believe all, part or none of the evidence.” 

____________________________________________

1 Appellant attempts to distinguish “excludable delay” from “excusable delay,” 

arguing the Commonwealth was required to prove due diligence. Appellant’s 

Brief at 17-18. However, as noted above, and as the trial court observed, our 

Supreme Court and this Court have recognized judicial delays as excludable. 

Rule 1925(a) Opinion, 4/27/20, at 9 (citations omitted). It is in the context 

of Rule 600(B) that “only periods of delay caused by the defendant shall be 

excluded from the computation of the length of time of any pretrial 

incarceration.” Pa.R.Crim.P. 600(C)(2). Rule 600(A) is at issue in this case, 

not Rule 600(B), which relates to periods of pre-trial incarceration. 
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Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014)

(citation omitted). “Because evidentiary sufficiency is a question 

of law, our standard of review is de novo and our scope of review 

is plenary.” Commonwealth v. Diamond, [623 Pa. 475], 83 

A.3d 119, 126 (2013) (citation omitted).

Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super. 2014). 

With respect to aggravated assault, Appellant was convicted under 

Section 2702 (a)(4), which provides that “[a] person is guilty of aggravated 

assault if he . . . attempts to cause or intentionally or knowingly causes bodily 

injury to another with a deadly weapon.” 18 Pa.C.S.A. § 2702(a)(4). 

Collier testified that Appellant came out of his apartment with the 

handgun at his side. N.T., Trial, 11/7/19, at 82. She walked to her car and 

he followed her. Id. Because she “didn’t know what he was capable of doing 

with that gun,” she decided to get in her car and leave. Id. As she was 

getting into her car, she heard a gunshot. Id. at 83. Her back was to 

Appellant at the time. When she arrived home, she discovered that the shot 

fired by Appellant hit and entered her car. Id. 

Based on our review of the record, we find the evidence, viewed in a 

light most favorable to the Commonwealth as verdict winner, supports the 

jury’s verdict beyond a reasonable doubt. Initially, we note the handgun 

discharged by Appellant constitutes a “deadly weapon.” See 18 Pa.C.S.A. 

§ 2301 (defining a deadly weapon as, inter alia, “[a]ny firearm, whether 

loaded or unloaded”). Moreover, the evidence, even if circumstantial, was 

sufficient to support a finding that Appellant attempted to cause bodily injury 
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to Collier when he fired the gun in her direction as she was getting into her 

car to leave. As the trial court observed, the jury was “free to interpret 

Appellant’s conduct, including coming out of his home with a gun and then 

shooting the gun at Collier’s vehicle while she was inside of it, as 

circumstantial evidence of intent.” Rule 1925(a) Opinion, 4/27/20, at 12. 

Appellant’s sufficiency of the evidence argument fails. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2020