J-S20009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v. JERRY PRATT Appellant No. 639 WDA 2015

Appeal from the Order March 18, 2015 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0003073-2013
BEFORE: PANELLA, J., OLSON, J., and PLATT, J. * MEMORANDUM BY PANELLA, J. FILED MAY 05, 2016 Appellant, Jerry Pratt, appeals from his judgment of sentence entered by the Court of Common Pleas of Washington County, following his convictions for theft by deception and access devic e fraud. In this appeal, we consider whether the Commonwealth violated Pratt’s Rule 600 rights. We affirm. The trial court summarized the relevant factual an d procedural history as follows. [A] criminal complaint was filed against the Defend ant on May 15, 2013. A preliminary hearing was scheduled befor e the Magisterial District Justice, James Ellis, for June 4, 2013. That hearing was continued by the Commonwealth. The next hearing date was to be on September 10, 2013[,] but, accord ing to the electronic docket, it was continued at the Defendan t’s request.

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* Retired Senior Judge assigned to the Superior Cour t.J-S20009-16

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The next hearing was scheduled for November 19, 201 3, which was also continued at the Defendant’s request accor ding to the electronic docket. The record also contains a lette r signed by the Defendant requesting a continuance of the November 19, 2013 hearing. Therefore, it was rescheduled to December 17, 2013. On December 17, 2013, the Defendant had his prelimi nary hearing before Magisterial District Justice, James Ellis. The Defendant appeared by video from the Allegheny Coun ty Jail (ACJ) and decided to waive his case to court. When the Defendant decided to waive his case to cou rt, he had been incarcerated at the ACJ since July 17, 2013. A llegheny County authorities had charged him with identity th eft and theft of services for crimes committed in that County. A non-jury trial was scheduled for January 15, 2014 on the Allegheny County charges, but the Defendant pled guilty. A sentencin g hearing took place before Judge Edward Borkowski on January 23, 2014, at which time he was sentenced. The sentence was fo r nine to eighteen months, plus an additional two years of pr obation. The Defendant was given 191 days of credit toward his m inimum sentence of nine months. After the Defendant’s sentencing by Judge Borkowski , he was transported to a federal prison named FCI Cumberlan d, which is in Ohio. This was due to federal probation violatio ns. There was, however, no record from the Commonwealth or the Fed eral government about the date the Defendant was release d to FCI Cumberland. The Defendant testified that he was rel eased from the ACJ to Cumberland on February 26, 2014. That be ing said, the Court will use February 26, 2014 as the date th e Defendant was transferred to FCI Cumberland. Chief Detective James McElhaney (detective) testifi ed that he learned from Assistant District Attorney, Jerome Mo schetta, on July 30, 2014 that the Defendant was at a federal c orrections institution in Cumberland. The detective testified that Denise Buterbaugh of FCI Cumberland responded to his inqui ry on August 1, 2014, and informed him that the Defendant was housed at said facility but was scheduled to be rel eased from their custody to ACJ on September 26, 2014. To ensu re the Defendant’s appearance in Washington County, a deta iner was lodged against the Defendant and a copy was faxed t o FCI Cumberland. Nevertheless, the FCI Cumberland offici als informed the detective that the Defendant would not be releasedJ-S20009-16

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to anyone but Allegheny County; obviously, the Defe ndant’s minimum sentence of nine months was not yet complet ed on the identify theft and theft of services charges. The detective contacted the ACJ on September 29, 20 14 about the Defendant being in their custody. Their respons e was that he was not in their custody. He called the ACJ on Sept ember 30 as well, but was again told he was not in their care. Further, the detective testified that the Allegheny County Distr ict Attorney’s office informed him that they had until October 10, 2014 to secure the Defendant FCI Cumberland [sic] and that it would be a “long time before Washington County” got the Defe ndant” due to him needing to deal with Allegheny County charge s. The detective’s next communication with the ACJ was on November 25, 2014, at which time they verified the Defendant was in their care. Consequently, the Court arranged a video hear ing with the ACJ for December 16, 2014 to determine how the Defe ndant wanted to proceed on the charges. The Defendant appeared on that date before this Cou rt. It was learned that the Defendant had attempted to contact the Washington County Public Defenders’ Office but was unsuccessful. Therefore, the Defendant did not want to proceed and the Court issued an order directing that office [sic] contact the Defendant and scheduled a pre-trial conference for January 30, 2015. At that hearing, the Defendant requested a continuance due to on-going plea negotiations. The Court rescheduled the matter for a pre-trial conference o n March 6, 2015. However, the Defendant then filed a Rule 600 motion on February 6, 2015. Order, 3/18/15, at 1-3. The trial court denied Pratt’s Rule 600 motion aft er holding a pre-trial hearing. Thereafter, a non-jury trial was held, and Pratt was convicted of theft by deception and access device fraud. The tri al court subsequently imposed a sentence of 1 year less 1 day to 2 years less 2 days’J-S20009-16

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imprisonment for theft by deception, plus 3 years o f concurrent probation for access device fraud. 1 This timely appeal followed. On appeal, Pratt contends that the trial court err ed in denying his Rule 600 motion, thus violating his right to a speedy tr ial. Specifically, Pratt argues that the mechanical run date for Rule 600 wa s exceeded, and that the Commonwealth did not establish that it had exer cised due diligence in bringing the case to trial. See Appellant’s Brief, at 11-16. Rule 600 requires the Commonwealth to bring a defen dant to trial within 365 days of the filing of the criminal compl aint. See Pa.R.Crim.P. 600(A)(2)(a). 2 Our scope and standard of review on this issue are as follows. Our standard of review relating to the application of Rule 600 is whether the trial court abused its discretion. Our scope of review is limited to the evidence on the record of the Rul e 600 evidentiary hearing and the findings of the trial c ourt. We must view the facts in the light most favorable to the p revailing party.
Commonwealth v. Robbins , 900 A.2d 413, 415 (Pa. Super. 2006) (citation omitted). Additionally, when considering the trial court’s ru ling, 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, an d (2) the protection of society. In determining whether an ac cused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of crim inal cases, both

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1 Pratt was also ordered to pay restitution.

2 The parties in this case analyzed the speedy trial rule under this section, so we will do the same.J-S20009-16

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to restrain those guilty of crime and to deter thos e contemplating it. However, the administrative manda te of Rule [600] was not designed to insulate the criminally a ccused from good faith prosecution delayed through no fault of the Commonwealth. Commonwealth v. Hunt , 858 A.2d 1234, 1239 (Pa. Super. 2004) ( en banc ) (citation omitted; brackets in original). “[T]o obtain relief, a defendant must have a valid Rule 600 claim at the time he files his motion to dismiss the charges .” Commonwealth v. Hyland , 875 A.2d 1175, 1189 (Pa. Super. 2005). The first step in conducting a Rule 600 analysis is to calculate the “mechanical run date.” Commonwealth v. Lynn , 815 A.2d 1053, 1056 (Pa. Super. 2003). “The mechanical run date is the date by which the trial must commence under Rule 600. It is calculated by adding 365 days ... to the date on which the criminal complaint is filed.” Id . (citation omitted). “If the Commonwealth attempts to bring a defendant to trial beyond the 3 65 day-period prescribed by Rule 600, and the defendant filed a Rule 600 mot ion to dismiss, the court must assess whether there is excludable time and/or excusable delay.”
Hunt , 858 A.2d at 1241. The court must exclude from the time for commencement of trial any periods during which the defendant was unavailable, including any continuances requested b y the defendant. See Pa.R.Crim.P. 600(C); Rule 600, Comment . The amount of excludable time is added to the mechanical run date to arrive at an ad justed run date. See Commonwealth v. Ramos , 936 A.2d 1097, 1103 (Pa. 2007).J-S20009-16

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Mere incarceration in another state does not automa tically make a defendant unavailable within the meaning of Rule 60 0. See Commonwealth v. Kubin , 637 A.2d 1025, 1026 (Pa. Super. 1994). “A defendant is only unavailable if the delay in retur ning him to Pennsylvania is due to the other state causing the delay; the prose cution, however, must exercise due diligence in attempting to bring the d efendant back for trial.” Id . (citation omitted). Even where a violation of Rule 600 has occurred, we must apply a due diligence analysis to assess whether the delay was excusable. See Ramos , 936 A.2d at 1103. ‘“Excusable delay’ is not express ly defined in Rule 600, but the legal construct takes into account delays w hich occur as a result of circumstances beyond the Commonwealth’s control and despite its due diligence.” Hunt , 858 A.2d at 1241 (citation omitted). Due diligenc e must be determined on a case-by-case basis. See id . “Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been put forth.” Id ., at 1241- 1242 (citation omitted). A period of delay that is excusable results in an extension to the adjusted run date. See Ramos , 936 A.2d at 1103. Extensions added to the adjusted run date produce t he final Rule 600 run date. See id . The trial court must dismiss the charges if the C ommonwealth does not bring the defendant to trial on or before the final run date. See id

. In the instant case, the Commonwealth filed its com plaint on May 15, 2013. Thus, the mechanical run date was May 15, 201 4. Pratt had not beenJ-S20009-16

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brought to trial when he filed his motion to dismis s on February 6, 2015. On September 10, 2013, Pratt requested that his prelim inary hearing be continued. On October 15, 2013, the Commonwealth re quested a continuance. Pratt requested another continuance on November 19, 2013. The preliminary hearing was held on December 17, 20 13. The 35-day period between September 10, 2013 and October 15, 2013 is excludable pursuant to Rule 600(C), as is the 28-day period between Nov ember 19, 2013 and December 17, 2013. Addition of 63 days of excludabl e time results in an adjusted run date of July 17, 2014. According to the record, the Commonwealth was not a ware of Pratt’s incarceration at FCI Cumberland until July 30, 2014 . This Court has previously held that a defendant is “unavailable” w ithin the meaning of Rule 600 when he is incarcerated in another jurisdiction and the Commonwealth is unaware of his whereabouts. Commonwealth v. Haynes , 488 A.2d 602, 605 (Pa. Super. 1985). 3 Thus, the 154-day period between February 26, 2014 and July 30, 2014 is excludable under Rule 600 (C). Addition of 154 days of excludable time results in an adjusted run date of December 18, 2014. Once Detective McElhaney became aware of Pratt’s in carceration at FCI Cumberland, he contacted the officials at FCI C umberland and expressed

____________________________________________ 3 Haynes was decided when Rule 600 was known as Rule 1100. Nevertheless, the analysis remains the same.J-S20009-16

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the desire to extradite Pratt. Detective McElhaney was told that Pratt would not be available for extradition until after he com pleted his sentence at FCI Cumberland. He was also told that Pratt would not b e released to any authority other than ACJ. Nevertheless, Detective M cElhaney filed a detainer on August 12, 2014. After reviewing the efforts of Detective McElhaney, the trial court found that the time from when the Commo nwealth discovered Pratt’s whereabouts, July 30, 2014, to when Pratt w as delivered to ACJ, October 10, 2014, was excludable. See Rule 600, Comment (“[T]he defendant should be deemed unavailable for the peri od of time during which the defendant contested extradition, or a responding jurisdiction delayed or refused to grant extradition .”) (emphasis added). We see no abuse of discretion in the court’s decision. See Commonwealth v. McNear , 852 A.2d 401, 407 (Pa. Super. 2004). Addition of 72 day s of excludable time results in an adjusted run date of February 28, 201 5. Since Pratt filed his Rule 600 motion on February 6, 2015, the trial cour t properly denied his Rule 600 motion. 4 Judgment of sentence affirmed. Jurisdiction relinq uished.

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4 Because it is clear that Pratt filed his Rule 600 motion before the extended run date, we need not analyze the entire record to determine whether the final run date is February 28, 2015 or some later d ate. See Hyland , 875 A.2d at 1189.J-S20009-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/5/2016