J-S12036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEVIN MICHAEL MILLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1011 MDA 2022

Appeal from the Judgment of Sentence Entered July 6, 2022

In the Court of Common Pleas of Centre County Criminal Division at 

No(s): CP-14-CR-0000726-2021

BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED OCTOBER 20, 2023

Appellant, Devin Michael Miller, appeals from the judgments of sentence 

imposed by the Centre County Court of Common Pleas after a jury found him 

guilty of driving under the influence (DUI) of a Schedule I controlled substance 

(as a fourth offense) and false identification to a law enforcement officer, and 

the lower court found him guilty of driving while operating privilege is 

suspended or revoked - DUI related (as a third or subsequent violation),

driving while operating privilege is suspended or revoked – DUI related with a 

controlled substance in blood (as a third or subsequent violation), failing to 

wear protective headgear while operating a motorcycle, careless driving, and 

failing to use a traffic signal.

1

 He challenges the denial of his pre-trial motion 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. §§ 3802(d)(1)(i), 4914(a), 1543(b)(1)(iii), 1543(b)(1.1)(iii), 

3525(b), 3714(a), and 3334(a), respectively.
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to dismiss his case, alleging that the Commonwealth violated his right to a 

speedy trial under the Pennsylvania and United States Constitutions. Upon 

review, we affirm.

The facts underlying Appellant’s convictions concern a motor vehicle 

stop that occurred at 2:29 a.m. on August 2, 2020, near the intersection of 

Pugh Street and Beaver Avenue in State College, Centre County, 

Pennsylvania. N.T. 4/29/22, 41-43, 45. Police Officer Kevin Orndorff saw 

Appellant driving a motorcycle with a female passenger, later identified as

Shelly Payne, traveling on Beaver Avenue near Fraser Street. Id. at 42, 46. 

Appellant had a helmet with a full-face shield sitting on top of his head. Id.

at 42, 100. Officer Orndorff turned around to pursue Appellant with the 

intention of conducting a traffic stop because Appellant was not properly 

wearing the helmet with the shield covering his face. Id. at 42-43. As 

Appellant came to the intersection of Pugh Street and Beaver Avenue, Officer 

Orndorff saw him swerve from the right lane to the left lane of the one-way, 

two-lane street without using a turn signal. Id. at 43, 45. After the officer 

waited for the traffic light at that intersection to turn green, he initiated the 

stop of Appellant’s motorcycle as Appellant was parking and alighting from the 

motorcycle. Id. at 44-45. 

The relevant events of the traffic stop and the ensuing investigation 

were recorded by a camera worn by Officer Orndorff and a dash camera in his 

patrol car. N.T. 4/29/22, 48-49, 53; Commonwealth Exhibit 1 (Dash Cam 

Video); Commonwealth Exhibit 2 (Body Worn Camera Video). Appellant 
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admitted that his helmet had been “up,” remarking, “my fault.” N.T. 4/29/22, 

55, 87. He was unable to produce a driver’s license after repeated requests. 

Id.at 55-56. Appellant identified himself as “Tershar” to the officer, and said 

that his identification card was in Ms. Payne’s bag. Id. at 56-57. Officer 

Orndorff later found out that “Tershar Miller” was Appellant’s cousin. Id. at 

57. At Appellant’s request, the officer conducted a pat-down of Appellant 

during which he smelled a strong odor of marijuana coming from Appellant’s 

body. Id. Appellant then produced an identification card for his cousin, 

Tershar. Id. at 58-59. He said that he recently lost his wallet which contained 

his driver’s license. Id. at 58. Officer Orndorff determined that the 

identification card was associated with a suspended driver’s license. Id. at 

60. 

Officer Orndorff confronted Appellant about the suspended license 

associated with the identification card and the observed weaving of the 

motorcycle and proceeded to subject Appellant to field sobriety testing from 

the ARIDE curriculum.

2

 N.T. 4/29/22, 61, 63-69. The officer noted various

clues to identifying impairment that were evident in each of the separate tests 

conducted that were consistent with marijuana impairment. Id. at 65, 67, 

____________________________________________

2 “ARIDE” refers to advanced roadside impaired driving enforcement training 

developed under the auspices and direction of the National Highway Traffic 

Safety Administration and the International Association of Chiefs of Police to 

prepare police officers and other qualified persons “to conduct various drugimpairment detection tests at roadside for use in drugged-driving 

investigations.” ARIDE Instructor Guide, 2023, National Highway Traffic 

Safety Administration, at 4, available at https://www.nhtsa.gov/sites/

nhtsa.gov/files/2023-04/15941-2023_ARIDE_Instructor%20Guide-tag.pdf.
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69-70. The officer also conducted a breathalyzer test that indicated “a pretty 

low amount” of alcohol. Id. at 71. Appellant admitted to smoking marijuana 

earlier in the morning. Id. Officer Orndorff told Appellant that he believed 

that he was impaired and that he wanted to further the investigation into 

whether he had been driving under the influence. Id. at 72. Appellant then 

indicated that he had been involved in a minor crash and requested an 

ambulance. Id. at 71-72. After an ambulance was requested, he withdrew 

his request to be transported in it when he found out that Ms. Payne could not 

ride in the ambulance with him. Id. at 72. Officer Orndorff subsequently 

arrested Appellant after he declined to be evaluated by a drug recognition 

expert unless Ms. Payne was by his side which the officers could not permit

due to on-going COVID-19 pandemic restrictions. Id. at 72-73. Officer 

Orndorff transported Appellant to the Mount Nittany Medical Center for 

chemical testing that was performed after Appellant signed a Pennsylvania 

Department of Transportation DL-26 form, indicating his agreement to provide 

a blood sample. Id. at 73-76.

At trial, Officer Orndorff and Officer Dean Woodring, who was also 

present for the field sobriety tests, opined that they believed that Appellant 

was under the influence of marijuana to the point that he was incapable of 

safely operating a motor vehicle. N.T. 4/26/22, 74, 103. Stipulations of 

counsel indicated that, inter alia, the chemical testing determined that 

Appellant’s blood contained: (1) “11-Hydroxy Delta-9 THC, which is the active 

metabolite of marijuana, at a concentration of 3.2 nanograms per milliliter;” 
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(2) “Delta-9 Carboxy THC, the inactive metabolite of marijuana, at a 

concentration of 26 nanograms per milliliter;” and (3) Delta-9 THC, the active 

ingredient of marijuana, at a concentration of 4.3 nanograms per milliliter.” 

Id. at 80. Appellant was positively identified as Devin Michael Miller after his 

fingerprints were uploaded to the Automated Identification System (AFIS) at 

the Centre County Correctional Facility. Id. at 81-82. Appellant admitted that 

his name was Devin Miller after the arresting officers returned him to that 

facility, following the fingerprint identification. Id. at 82. 

On March 28, 2022, Appellant filed a motion to dismiss pursuant to 

Pa.R.Crim.P. 600. He acknowledged that, as of filing of his motion, 434 days 

had elapsed since the filing of the criminal complaint. Rule 600 Motion, 

3/28/22, ¶ 9. He alleged that, at all relevant times, he had been available to 

defend himself in any proceedings on his charges and the Commonwealth had 

been aware of his address, telephone numbers, and contact information. Id.

at ¶ 11. He also alleged that the Commonwealth had not exercised due 

diligence in locating and prosecuting him. Id. at ¶ 12. He asserted: “The 

delay from the time of the filing of the Criminal Complaint was without 

justification, and said delay was in violation of Pennsylvania Rule of Criminal 

Procedure Rule 600, the Sixth Amendment of the United States Constitution, 

and the Fourteenth Amendment of the United States Constitution.” Id. at ¶ 

13. In a brief in opposition to Appellant’s Rule 600 motion, the Commonwealth 

noted that Appellant’s counsel had informed it that Appellant was abandoning 

his claim under Rule 600 and pursuing dismissal based on a violation of his 
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constitutional right to a speedy trial. Commonwealth’s Response to Rule 600 

Motion, 4/1/22, 1.

At a hearing on the speedy trial motion, Appellant’s counsel presented

the speedy trial claim on federal constitutional grounds, addressing the fourfactor test in Barker v. Wingo, 407 U.S. 514 (1972) (endorsing a balancing 

test to determine whether a defendant’s constitutional right to a speedy trial 

under the Sixth Amendment to the United States Constitution has been 

violated). N.T. 4/4/22, 3-4, 12. Counsel pointed out that almost two years 

had passed since Appellant’s arrest and then characterized the entire period 

from the arrest until March 4, 2022, as delay: (1) the five months between 

the arrest and the filing of the criminal complaint (August 2, 2020 to January 

19, 2021); (2) the two and one-half months between the filing of the criminal 

complaint and the formal arraignment (January 19, 2021 to April 8, 2021); 

(3) the two months between the arraignment and the preliminary hearing 

(April 8, 2021 to June 24, 2021); and (4) the eight months between the 

preliminary hearing and a scheduled trial date (June 24, 2021 to March 4, 

2022). Id. at 3-5, 7-9. With respect to the last period of time, counsel 

acknowledged that a prior trial date for January 28, 2021, was rescheduled 

because of a Commonwealth witness’s “COVID-19 exposure.” Id. at 8. The 

court added that it remembered that the reason for the delay in that instance 

resulted from defense counsel’s concern about exposure. Id. at 9 (the trial 

court: “I believe, and anyone can correct me if I’m wrong, that [Appellant’s] 

then-serving counsel was leaving the office where she worked, leaving her 
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employment in Centre County, and expressed her own concerns about 

possibly being exposed to the affiant because of some activity she was going 

to have with her father helping her move that weekend...”). Appellant’s 

counsel agreed that the delay from March 4, 2022, until the filing of the speedy 

trial motion was caused by the defense. Id.

Appellant claimed that two forms of prejudice supported his speedy trial 

claim. First, he alleged that the “Commonwealth ha[d] caused great anxiety 

for [him] by having th[e] criminal proceeding drag on.” N.T. 4/4/22, 10-11. 

Second, he asserted that he suffered from the loss of evidence due to the 

delay. Id. at 11. While his counsel acknowledged that the Commonwealth’s 

evidence had included police body camera footage and a dashcam video that 

began after Officer Orndorff initiated his emergency lights, counsel suggested 

that a delay in the filing of the charges prevented him from acquiring 

additional surveillance video evidence. Id. (“Had timely charges been filed, a 

thorough investigation could have been conducted, resulting in additional 

footage of the erratic driving from the surrounding businesses, which could 

have assisted in [Appellant’s] defense. However, that footage would not have 

survived the lengthy delay, and now we are reliant on witness memory of an 

event almost two years later.”). After hearing arguments from both parties, 

the court denied the speedy trial motion. Id. at 19. 

On April 29, 2022, Appellant failed to appear for trial and a jury found 

him guilty in absentia of the DUI offense and false identification to a law 
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enforcement officer.3 Jury Verdict Slip, 4/29/22, 1; N.T. 4/29/22, 8-12, 161-

62. Afterwards, the court found Appellant guilty of the remaining offenses 

referenced above. Non-jury Verdict, 4/29/22, 1; N.T. 4/29/22, 162-63. 

Sentencing was deferred for the preparation of a presentence investigation 

report. Order, 4/29/22, 1. On July 6, 2022, the court imposed an aggregate 

term of two to seven years’ imprisonment consistent with the parties’ 

recommendation based on their agreement to pre-trial stipulations.4 N.T. 

7/6/22, 2-6. After no post-sentence motions were filed, Appellant timely filed 

a notice of appeal and a court-ordered concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b).

5

 Notice of Appeal, 7/15/22, 1; 

____________________________________________

3 We note that, prior to trial, the Commonwealth represented to the trial court 

that an earlier trial listing on March 7, 2022, needed to be continued because 

Appellant was impaired when he appeared in court. N.T. 4/29/22, 10.

4 The aggregate sentence included concurrent prison terms of two to seven 

years for driving under the influence of a Schedule I controlled substance as 

a fourth offense, six to twelve months for false identification to a law 

enforcement officer, and two to four years for driving while operating privilege 

is suspended or revoked – DUI related with a controlled substance in blood as 

a third or subsequent violation. Sentencing Order (Count 1), 7/6/22, 1; 

Sentencing Order (Count 6), 7/6/22, 1; Sentencing Order (Count 8), 7/6/22, 

1. Driving while operating privilege is suspended or revoked - DUI related as 

a third or subsequent violation merged for sentencing purposes. Sentencing 

Order (Count 8), 7/6/22, 2. Fines were imposed for the remaining summary 

offenses. Sentencing Order (Count 10), 7/6/22, 1; Sentencing Order (Count 

11), 7/6/22, 1; Sentencing Order (Count 12), 7/6/22, 1. 

5 On August 2, 2022, the trial court reissued sentencing orders for the 

summary offense counts changing the wording of the original orders to reflect 

how the convictions for those offenses were obtained, without affecting the 

fines imposed for those offenses. Amended Sentencing Order (Count 10), 

8/2/22, 1; Amended Sentencing Order (Count 11), 8/2/22, 1; Amended 

(Footnote Continued Next Page)
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Rule 1925 Order, 7/19/22, 1; Amended Rule 1925 Order, 7/22/22, 1; Rule 

1925(b) Statement, 8/2/22, 1.

Appellant presents the following question for our review:

Did the trial court err by denying [Appellant’s m]otion to [d]ismiss 

based on a violation of his speedy trial rights under Article I, 

Section 9 of the Pennsylvania Constitution and [the] Sixth 

Amendment [to] the [United States] Constitution?

Appellant’s Brief at 9.

Appellant claims that the trial court erred by denying his motion to 

dismiss and rejecting his claim alleging a violation of his constitutional right 

to a speedy trial. Appellant’s Brief at 15-22. He argues that the 

Commonwealth unreasonably delayed its prosecution where a jury trial was 

not conducted until 635 days after the date on which his offenses occurred. 

Id. at 16-19. In particular, he points out that the criminal complaint was not 

filed until 171 days after the offenses were alleged to have occurred, his 

preliminary arraignment did not take place until 77 days after the filing of the 

criminal complaint, his preliminary hearing did not take place until 72 days 

____________________________________________

Sentencing Order (Count 12), 8/2/22, 1. Because we view the changes made 

by the court to the summary offense judgments of sentence as correcting

patent typographical errors, the trial court’s inherent authority to correct the 

orders was not limited by the fact that this appeal was pending from all of the 

judgments of sentences. See Commonwealth v. Holmes, 933 A.2d 57, 65 

(Pa. 2007) (holding 42 Pa.C.S. § 5505’s limits on jurisdiction do not impinge 

upon a trial court’s inherent authority to correct patent errors despite an 

absence of traditional jurisdiction); id. at 66 (holding that where an error in 

sentencing was clear from the order itself and the docket sheet, the trial 

court’s exercise of inherent power to correct a mistake was proper). 
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after it was originally scheduled to be held, his pre-trial conference was not 

held until 64 days after it was first scheduled to be held, and an original trial 

listing for January 28, 2022, was continued because the Commonwealth was 

unable to produce a witness. Id.

Appellant alleges three grounds for prejudice such that delay: (1)

caused him to “suffer significant anxiety and concern;” (2) prevented him from 

developing his defense; and (3) prevented him from losing the opportunity to 

receive a sentence that would be partially served concurrent with another 

sentence that he was serving in another jurisdiction. Appellant’s Brief at 20-

21. As for the effect that any delay would have had on his ability to develop 

a defense for trial, he notes that the deterioration of his relationship with Ms. 

Payne while his case remained pending made her an unavailable defense 

witness:

During this fifteen-month delay [i.e., the period between the filing 

of the criminal complaint and the trial], a critical witness, Shelley 

Payne, had become unavailable to testify.

...

During the 171 days that had elapsed before the [c]riminal 

[c]omplaint was filed, [Appellant] no longer had a romantic 

relationship with the only other eyewitness. The deterioration of 

this relationship would have led to inevitable credibility issues had 

defense counsel been able to contact Ms. Payne. 

Being present at the traffic stop from which this case arose, Ms. 

Payne’s testimony was critical to refute allegations that 

[Appellant] had ingested marijuana while in physical control of the 

vehicle. Rather, Ms. Payne would have testified that [Appellant] 

had ingested marijuana after exiting and disabling the motorcycle. 

Had charges been filed closer to the date of the offense, defense 
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counsel may have been able to successfully procure Ms. Payne to 

provide testimony at [Appellant’s] preliminary hearing and

subsequent trial.

Id. at 21-22.

As a preliminary matter, we note that Appellant’s theory for prejudice 

based on the availability of Ms. Payne as a defense witness is waived because

Appellant presented no prejudice arguments concerning Ms. Payne in his 

speedy trial claim argued in the hearing before the trial court. See 

Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009) 

(citations omitted) (“[a] new and different theory of relief may not be 

successfully advanced for the first time on appeal”); Commonwealth v. 

Cain, 906 A.2d 1242, 1244 (Pa. Super. 2006) (speedy trial issue waived on 

appeal when not properly presented to trial court); see also Pa.R.A.P. 302(a) 

(“Issues not raised in the lower court are waived and cannot be raised for the 

first time on appeal”). Appellant likewise waived his claim that delay 

prejudiced him by causing him to lose the opportunity to serve his sentence 

concurrently with a term he was already serving in a separate jurisdiction. 

That assertion was not included in the prejudice arguments made in the pretrial hearing. See N.T. 4/4/22, 10-12.

In evaluating the preserved portions of Appellant’s constitutional speedy 

trial rights issue, “our standard of review is whether the trial court abused its 

discretion, and our scope of review is limited to the trial court’s court findings 

and the evidence on the record, viewed in the light most favorable to the 
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prevailing party.” Commonwealth v. Martz, 232 A.3d 801, 812 (Pa. 2020) 

(citation omitted). 

The Sixth Amendment to the United States Constitution, by operation of 

the Fourteenth Amendment’s Due Process Clause, and Article I, Section 9 of 

the Pennsylvania Constitution guarantee a criminal defendant the right to a 

speedy trial, and Article I, Section 9 of Pennsylvania Constitution coextensively protects that right with the Sixth Amendment of the United States 

Constitution. See Commonwealth v. DeBlase, 665 A.2d 427, 432 & n.2 

(Pa. 1995). The Pennsylvania Supreme Court has continued to apply the 

Barker balancing test where an appellant presents an independent claim 

premised on the constitutional guarantees to a speedy trial.6 Id. at 431. 

____________________________________________

6 As Appellant abandoned any claim premised under the prompt trial rule 

under Pa.R.Crim.P. 600, we need not conduct a Rule 600 inquiry and may 

proceed to evaluate Appellant’s discrete constitutional claim. We also note 

that Rule 600 appears to have been suspended from March 16, 2020 to 

December 10, 2021, during the judicial emergency declared in the 49th Judicial 

District, which includes Centre County, in the wake of the Covid-19 pandemic 

that began in March of 2020. See Declaration of Judicial Emergency, In Re: 

49th Judicial District – Declaration of Judicial Emergency, 3/16/20, P.J. 

Ruest (declaring a judicial emergency from March 16, 2020 to April 14, 2020, 

during which “[t]he operation of Rule of Criminal Procedure 600 shall be 

suspended”), available at https://www.pacourts.us/Storage/media/pdfs/

20210519/010521-file-8521.pdf; Amended Administrative Order, In Re: 49th

Judicial District – Actions Pursuant to Declaration of Judicial 

Emergency, 4/6/20, P.J. Ruest (extending the judicial emergency through 

May 1, 2020, while continuing the Rule 600 suspension), available at 

https://www.pacourts.us/Storage/media/pdfs/20210519/010650-file-8932.

pdf; Second Amended Administrative Order, In Re: 49th Judicial District –

Actions Pursuant to Declaration of Judicial Emergency, 4/23/20, P.J. 

Ruest (extending the judicial emergency through May 31, 2020, while 

continuing the Rule 600 suspension), available at https://www.pacourts.us/

(Footnote Continued Next Page)
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____________________________________________

Storage/media/pdfs/20210519/010725-file-9094.pdf; Third Amended 

Administrative Order, In Re: 49th Judicial District – Actions Pursuant to 

Declaration of Judicial Emergency, 5/29/20, P.J. Ruest (extending the 

judicial emergency through July 3, 2020, while continuing the Rule 600 

suspension “subject to constitutional limitations”), available at

https://www.pacourts.us/Storage/media/pdfs/20210519/010801-file-9394.

pdf; Fourth Amended Administrative Order, In Re: 49th Judicial District 

Judicial Emergency Order, 6/25/20, P.J. Ruest (extending the judicial 

emergency through September 7, 2020, while continuing the Rule 600 

suspension “subject to constitutional limitations”), available at 

https://www.pacourts.us/Storage/media/pdfs/20210519/010829-file-9556.

pdf; Fifth Amended Administrative Order, In Re: 49th Judicial District 

Judicial Emergency Order, 9/3/20, P.J. Ruest (extending the judicial 

emergency through December 31, 2020, while continuing the Rule 600 

suspension “subject to constitutional limitations”), available at

https://www.pacourts.us/Storage/media/pdfs/20210519/010900-file-9986.

pdf; Sixth Amended Administrative Order, In Re: 49th Judicial District 

Judicial Emergency Order, 12/29/20, P.J. Ruest (extending the judicial 

emergency through April 30, 2021, while continuing the Rule 600 suspension 

“subject to constitutional limitations”), available at https://www.pacourts.us/

Storage/media/pdfs/20210519/010957-file-10987.pdf; Seventh Amended 

Administrative Order, In Re: 49th Judicial District Judicial Emergency 

Order, 4/23/21, P.J. Ruest (extending the judicial emergency through June 

30, 2021, while continuing the Rule 600 suspension “subject to constitutional 

limitations”), available at https://www.pacourts.us/Storage/media/

pdfs/20210519/011028-file-11454.pdf; Request for Emergency Judicial 

Order, In Re: 49th Judicial District Judicial Emergency Order, 6/25/21, 

P.J. Ruest (requesting authorization from the Pennsylvania Supreme Court to 

extend the 49th Judicial District’s judicial emergency through August 31, 

2021), available at https://www.pacourts.us/Storage/media/pdfs/20210827/

153417-june25centrecountyrequestforemergencyjudicialorder.pdf; Order, In 

Re: 49th Judicial District Declaration of Judicial Emergency (Centre 

County) (Pa., filed 4/29/21) (granting an extension of the judicial emergency 

through August 31, 2021) (per curiam), available at https://www.pacourts.us/

Storage/media/pdfs/20210701/143630-39mm2020-centre-6-29-21order.

pdf; Request for Emergency Judicial Order, In Re: 49th Judicial District 

Judicial Emergency Order, 9/13/21, P.J. Ruest (requesting authorization 

from the Pennsylvania Supreme Court to extend the 49th Judicial District’s 

judicial emergency through December 10, 2021) available at 

https://www.pacourts.us/Storage/media/pdfs/20210914/195322-sept.13-

centrecounty-requestforemergencyjudicialorder.pdf; In Re: 49th Judicial 

(Footnote Continued Next Page)
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Barker’s four-part constitutional analysis requires consideration of: (1) the 

length of the delay; (2) the reason for the delay; (3) the defendant’s assertion 

of his right to a speedy trial; and (4) prejudice to the defendant. See 

Commonwealth v. Bradford, 46 A.3d 693, 700-01 (Pa. 2012) (discussing 

Barker). “The particular interests the Sixth Amendment was designed to 

protect are the following: to prevent oppressive pretrial incarceration; to 

minimize anxiety and concern of the accused; and to limit the possibility that 

the defense will be impaired.” Commonwealth v. McCord, 644 A.2d 1206, 

1212 (Pa. Super. 1994).

As to the first two parts of the Barker test, Appellant argues that: (1) 

the Commonwealth provided no justification for not filing criminal charges 

against him until 171 days after the occurrence of his offenses; (2) his 

continued incarceration in a separate matter in Blair County did not justify 

delays including 77 days between the filing of the criminal charges and his 

preliminary arraignment and a 72-day delay between when his preliminary 

hearing was original scheduled for and then held; (3) there was a 64-day delay 

between when his pre-trial conference was first scheduled for and then held; 

and (4) the scheduling of his trial was delayed for a 36-day period because 

____________________________________________

District Declaration of Judicial Emergency (Centre County) (Pa., filed 

9/14/21) (granting an extension of the judicial emergency through December 

10, 2021) (per curiam), available at https://www.pacourts.us/Storage/

media/pdfs/20210914/195322-sept.13-centrecounty-requestforemergency

judicialorder.pdf.
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the Commonwealth was unable to procure a witness. Appellant’s Brief at 16-

19. 

In its opinion, the trial court advises that the delays in this case were 

“due to circumstances outside of the Commonwealth’s control, as well as the 

actions taken and agreements made by Appellant.” Trial Court Opinion, 

8/17/23, 6. The court’s recitation of the pre-trial procedural history highlight 

that the delays were caused by logistical issues caused by the on-going 

COVID-19 pandemic, a continuance granted sua sponte by the court, a 

continuance granted with the consent of both parties after a Commonwealth 

witness contracted the COVID-19 virus, and an incident where trial was unable 

to proceed because Appellant appeared for court in an impaired state. Id. at 

2-3, 5-6.

For the third part of the Barker test, Appellant argues that he asserted 

his speedy trial rights by filing a petition for writ of habeas corpus on July 27, 

2021 (189 days after the filing of the criminal complaint), and his dismissal 

motion on March 28, 2022 (433 days after the filing of the criminal complaint). 

Appellant’s Brief at 19. The trial court instead notes that “Appellant never 

asserted his rights until after the delays agreed [to] or caused by Appellant.” 

Trial Court Opinion, 8/17/23, 6. By doing so, the court is implicitly referring 

either to the dismissal motion or the arguments made at the hearing on that 

motion. The court appears to make no reference to the pre-trial habeas 

petition because there were no apparent speedy trial issues presented in that 

motion. Instead, Appellant alleged therein that there was insufficient evidence 
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for a prima facie case to support charges for forgery, identity theft, and theft 

by receiving stolen property. Habeas Petition, 7/27/21, ¶¶ 5-16.

With respect to the last part of the test, Appellant argues he sustained

three forms of prejudice resulting from delay. First, he asserts that delay and 

the restraint on his liberty and lengthy pretrial incarceration resulting from 

delay caused him to suffer significant anxiety and concern. Appellant’s Brief 

at 20. Second, he argues that the same restraint and incarceration hindered 

him from preparing a defense because, by the time of trial, he was no longer 

in a romantic relationship with Ms. Payne and, assuming there was no delay, 

Appellant suggests that Ms. Payne would have provided testimony for the 

defense at a preliminary hearing and trial. Id. at 20-22. Lastly, he claims 

that “the harm incurred by ... prosecutorial delay manifested in the 

irretrievable loss of opportunity to receive a sentence partially concurrent with 

that which was being served in another jurisdiction.” Id. at 21.

When addressing the possibility of prejudice, the trial court advises that 

“Appellant failed to articulate any cognizable prejudice he suffered as a result 

of the delay.” Trial Court Opinion, 8/17/23, 6-7. The court never addresses 

the argument that delay hindered Appellant from securing testimony from Ms. 

Payne because, as we observed in our waiver holding above, Appellant never 

raised that argument to the trial court. The court also never addresses the 

lost opportunity for concurrent sentences argument. With respect to the 

suggestion that prejudice prevented Appellant from developing a defense, the 

trial court appears to address Appellant’s separate claim raised below that 
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delay in the filing of his charges prevented him from timely securing 

surveillance videos that he assumed would have existed and showed his 

motorcycle driving prior to the beginning of the police camera footage that 

was presented at trial. Id. at 7; see N.T. 4/4/22, 11 (Appellant’s argument 

at the dismissal hearing: “Had timely charges been filed, a thorough 

investigation could have been conducted, resulting in additional businesses, 

which could have assisted in [Appellant’s] defense.”).

“A finding in the defendant’s favor of any one of the four factors, 

standing alone, does not constitute a speedy trial violation. Rather, each of 

the four factors are related and each must be weighed carefully in the court’s 

evaluation of a criminal defendant’s claim that his speedy trial rights were 

violated.” DeBlase, 665 A.2d at 432 (citations omitted). Here, our careful 

review of Appellant’s arguments, the trial court’s opinion, and the certified 

record failed to show that any of the four factors of the Barker test should 

have weighed in Appellant’s favor. Moreover, we discern that Appellant has 

failed to meet his burden of demonstrating that the trial court abused its 

discretion in denying his constitutional speedy trial rights claim. 

Seeing that Appellant was tried in this case within twenty months of his 

arrest and, for sixteen of those months, the trial court was navigating through 

an ongoing judicial emergency caused by the COVID-19 pandemic, we can 

hardly fault the trial court for declining to consider the delay in this case as 

uncommonly long. Even assuming arguendo that the length of delay was 

unreasonable, the trial court did not determine that any of the continuances 
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in this case were the result of intentional delay or negligence on the part of

the Commonwealth. That conclusion was also not an apparent abuse of 

discretion. Appellant presented no testimony at the hearing on his dismissal 

motion and the arguments of counsel and the certified record supported the 

trial court’s conclusion that the delays in this case were either outside the 

control of the Commonwealth or were delays that Appellant assented to or 

caused by himself: some of the delay appeared to have been attributed to 

difficulties with transporting Appellant amid the ongoing pandemic, the trial 

court sua sponte granted a continuance of the preliminary hearing, a joint 

continuance occurred when a Commonwealth witness was unable to appear 

for trial due to a COVID-19 infection, and a trial date needed to be continued 

on an occasion when Appellant appeared in court in an impaired state.7 N.T. 

4/4/22, 13-16; 4/29/22, 10.

The timing of Appellant’s assertion of his speedy trial rights was also an 

unpersuasive factor for him which his counsel acknowledged below. See N.T. 

4/4/22, 10 (“It is acknowledged that this is perhaps the defense’s weakest 

____________________________________________

7 While the parties failed to point to any definitive reason for the delay between 

Appellant’s arrest and the filing of the criminal complaint (from August 2, 2020 

to January 19, 2021), it is not lost on this Court that that period of time 

coincided with times when jails and prisons across Pennsylvania were being 

overwhelmed by the spread of the COVID-19 virus. See Paula Reed Ward, 

COVID Cases Continue to Ravage Pennsylvania Jails, Prisons, 

Pittsburgh Tribune-Review, Dec. 11, 2020, available at https://triblive.com/

news/pennsylvania/covid-cases-continue-to-ravage-pennsylvania-jailsprisons/; Gary Sinderson, Centre County Correctional Facility Limiting 

Taking New Inmates, WJACTV, Jan. 11, 2021, available at 

https://wjactv.com/news/local/centre-county-correctional-facility-limitingtaking-new-inmates.
J-S12036-23

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argument, as this is his first time invoking his Sixth Amendment right.”). 

Here, the constitutional speedy trial rights claim was not presented until the 

hearing for Appellant’s motion in which he originally requested dismissal under 

Rule 600 and after Appellant had caused a delay of trial. 

Lastly, Appellant fails to show that the trial court abused its discretion 

by finding that he failed “to articulate any cognizable prejudice he suffered as 

a result of the delay.” Trial Court Opinion, 8/17/23, 6-7. The only preserved 

portion of the appellate prejudice argument is that he experienced anxiety 

because of delay in this case. Appellant’s Brief at 20 (assertion that Appellant 

was subjected to “extended restraint on his liberties with oppressive pretrial 

incarceration” and noting that “lengthy pretrial incarceration [can] cause a 

defendant to suffer significant anxiety and concern”), compare with N.T. 

4/4/22, 11 (“Here, the Commonwealth has caused great anxiety for my client 

by having this criminal process drag on. My client has had to live his life for 

almost two years while the Commonwealth dragged their feet in bringing the 

charges, bringing my client to his pretrial hearings, bringing my client to his 

pretrial hearings, and finally bringing my client to trial.”). 

The appellate argument for prejudice such that delay in this case caused 

Appellant anxiety because it subjected him to lengthy pretrial incarceration 

has no support in the record. In a pretrial motion in limine filed by Appellee, 

the Commonwealth pointed out that Appellant incurred additional criminal 

charges in a separate case, after an incident in Blair County on October 30, 

2020, which involved Ms. Payne as his victim of witness intimidation and 
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harassment. Commonwealth’s Motion in Limine, 1/20/22, ¶¶ 58-59 & 

attached Exhibit B, Sentencing Order, Commonwealth v. Miller, CP-07-CR0000071-2021, 6/23/21. The sentencing order in that Blair County case 

indicates that Appellant received credit for time-served starting on October 

30, 2022. Id. at attached Exhibit B, Sentencing Order, Commonwealth v. 

Miller, CP-07-CR-0000071-2021, 6/23/21, 5. In comparison, the sentencing 

notes of testimony in the instant case suggested that Appellant was only 

entitled to a time-credit for two days of pre-trial incarceration. N.T. 7/6/22, 

3. Accordingly, there was no basis for Appellant to now argue that delays in 

the instant case caused him anxiety by way of lengthy pre-trial incarceration 

– Appellant was already incarcerated from his offenses in another jurisdiction. 

Upon our review of the certified record, we do not find anything 

objectionable about the trial court’s application of the four-factor Barker test. 

Appellant fails to demonstrate that the trial court’s denial of his constitutional 

speedy rights claim was an abuse of discretion. Accordingly, we decline to 

find any basis to grant relief. 

Judgments of sentence affirmed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/20/2023