J-S03029-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GEORGE LAND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 957 EDA 2018

Appeal from the Judgment of Sentence February 27, 2018

In the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0003372-2016

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 28, 2019

Appellant, George Land, appeals from the judgment of sentence entered 

on February 27, 2018. We affirm.

On February 19, 2015, Appellant pulled into a stranger’s driveway. The 

stranger called the Plymouth Township Police Department because she did not 

recognize Appellant’s vehicle. When police arrived, Appellant resisted arrest. 

The following day, the Commonwealth charged Appellant with various 

offenses via criminal complaint. Thereafter, the Commonwealth charged

Appellant via criminal information with two counts of disorderly conduct,1

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1 18 Pa.C.S.A. § 5503(a)(1), (a)(4).
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aggravated assault,2 possession with intent to deliver a controlled substance,3

resisting arrest,4 simple assault,5 possession of a controlled substance by an 

unregistered person,6 and driving under the influence of a controlled 

substance.7 On August 8, 2017, Appellant moved to dismiss all charges under 

Pennsylvania Rule of Criminal Procedure 600. On October 5, 2017, the trial 

court denied that motion. 

Trial commenced on November 28, 2017. Appellant called a neurologist 

to testify regarding injuries he suffered during the altercation with police. 

Appellant also attempted to call his mother and sister to testify regarding the 

injuries he suffered during the altercation with police. The trial court sustained 

the Commonwealth’s objection to Appellant’s mother’s and sister’s testimony. 

On November 29, 2017, a jury convicted Appellant of resisting arrest, simple 

assault, and possession of a controlled substance by an unregistered person. 

On February 23, 2018, the trial court sentenced Appellant to an aggregate 

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2 18 Pa.C.S.A. § 2702(a)(3).

3 35 P.S. § 780-113(a)(30).

4 18 Pa.C.S.A. § 5104.

5 18 Pa.C.S.A. § 2701(a)(1).

6 35 P.S. § 780-113(a)(16).

7 75 Pa.C.S.A. § 3802(d)(2). 
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term of 9 to 23 months’ imprisonment followed by three years’ probation. This 

timely appeal followed.8 

Appellant presents two issues for our review:

1. Did the [trial] court improperly credit the Commonwealth with 

excusable delay in bringing this case to trial?

2. Is [Appellant] entitled to a new trial because the trial court 

erroneously excluded as irrelevant proffered evidence 

probative of injuries sustained by [Appellant] during the course 

of his arrest where that evidence was offered to show bias and 

motive on the part of the Commonwealth’s police witnesses?

Appellant’s Brief at 2.9

In his first issue, Appellant argues that the trial court erred by denying 

his motion to dismiss pursuant to Rule 600. We review a trial court’s order 

denying a Rule 600 motion for an abuse of discretion. Commonwealth v. 

McCarthy, 180 A.3d 368, 373 (Pa. Super. 2018), appeal denied, 193 A.3d 

346 (Pa. 2018) (citation omitted). Our “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.” Commonwealth v. Wendel, 165 A.3d 

952, 956 (Pa. Super. 2017) (citation omitted).

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8 The trial court did not order Appellant to file a concise statement of errors 

complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). 

Nonetheless, Appellant filed a concise statement that included both of the 

issues raised on appeal. 

9 We have renumbered the issues for ease of disposition. 
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Rule 600 provides, in relevant part:

(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.

* * *

(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.

* * *

(3)(a) When a judge or issuing authority grants or denies a 

continuance:

(i) the issuing authority shall record the identity of the party 

requesting the continuance and the reasons for granting or 

denying the continuance; and

(ii) the judge shall record the identity of the party requesting the 

continuance and the reasons for granting or denying the 

continuance. The judge also shall record to which party the period 

of delay caused by the continuance shall be attributed, and 

whether the time will be included in or excluded from the 

computation of the time within which trial must commence in 

accordance with this rule.

(b) The determination of the judge or issuing authority is subject 

to review as provided in paragraph (D)(3).

(D) Remedies

(1) When a defendant has not been brought to trial within the time 

periods set forth in paragraph (A), at any time before trial, the 
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defendant's attorney, or the defendant if unrepresented, may file 

a written motion requesting that the charges be dismissed with 

prejudice on the ground that this rule has been violated. A copy 

of the motion shall be served on the attorney for the 

Commonwealth concurrently with filing. The judge shall conduct a 

hearing on the motion.

* * *

(3) Any requests for review of the determination in paragraph 

(C)(3) shall be raised in a motion or answer filed pursuant to 

paragraph (D)(1) or paragraph (D)(2).

Pa.R.Crim.P. 600. 

This Court has explained 

the courts of this Commonwealth employ three steps in 

determining whether Rule 600 requires dismissal of charges 

against a defendant. First, Rule 600(A) provides the mechanical 

run date. Second, we determine whether any excludable time 

exists pursuant to Rule 600(C). We add the amount of excludable 

time, if any, to the mechanical run date to arrive at an adjusted 

run date.

Rule 600[ ] encompasses a wide variety of circumstances under 

which a period of delay was outside the control of the 

Commonwealth and not the result of the Commonwealth’s lack of 

diligence. Any such period of delay results in an extension of the 

run date. Addition of any Rule 600 extensions to the adjusted run 

date produces the final Rule 600 run date. If the Commonwealth 

does not bring the defendant to trial on or before the final run 

date, the trial court must dismiss the charges.

Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018) (cleaned 

up).

The mechanical run date was February 22, 2016. Appellant concedes in 

his brief that he was responsible for 428 days of delay – 411 days between 

the filing of the complaint and the preliminary hearing and 27 days for a 
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mental health evaluation. The trial court found additional excludable delay 

and we agree with those findings. Appellant filed an omnibus pretrial motion 

which caused a 63-day delay. Moreover, Appellant requested a continuance 

on August 1, 2017 due to his expert being unavailable. Therefore, the seven 

days between that date and the filing of the Rule 600 motion were excludable. 

Hence, the adjusted run date was June 14, 2017. 

On May 10, 2017, the Commonwealth moved for a continuance because 

a witness was unavailable due to a work-related injury and the police union’s 

collective bargaining agreement. “It is well-settled that the Commonwealth 

cannot be held to be acting without due diligence when a witness becomes 

unavailable due to circumstances beyond its control.” Wendel, 165 A.3d at

957 (cleaned up). As the witness’ unavailability was beyond the control of the 

Commonwealth, the 83-day delay caused by this continuance request was

excusable. That pushes the final run date to, at the earliest, September 5, 

2017 – more than one month after Appellant filed his Rule 600 motion.10 

Hence, the trial court properly denied the Rule 600 motion. 

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10 Because the time between the filing of a Rule 600 motion and the decision 

regarding that motion is ipso facto excludable, a trial court must evaluate a 

Rule 600 motion based on the date the motion was filed. Moreover, Appellant 

did not file a second Rule 600 motion. Therefore, the parties incorrectly 

include the time period between the date Appellant filed his Rule 600 motion 

and the date trial began in their analysis. 
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In his second issue, Appellant argues that the trial court erred by 

excluding the testimony of his mother and sister.11 We review a trial court’s 

ruling on the admission of evidence for an abuse of discretion. 

Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa. Super. 2018), appeal 

denied, 197 A.3d 1180 (Pa. 2018) (citation omitted).

The trial court did not abuse its discretion by sustaining the 

Commonwealth’s objection to the proffered testimony. The evidence was 

inadmissible under Pennsylvania Rule of Evidence 403, which provides that 

evidence is inadmissible if its probative value is “outweighed by a danger of 

one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” Pa.R.Evid. 403.

The facts in this case are very similar to the facts in Commonwealth 

v. Akrie, 159 A.3d 982 (Pa. Super. 2017). In Akrie, the defendant sought 

to admit evidence that he was assaulted by police when he was arrested. 

According to the defendant in Akrie, the police charged him with more serious 

offenses because he complained about the assault. 

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11 To the extent Appellant argues that the exclusion of the evidence violated 

his constitutional rights, that argument is waived. See Pa.R.A.P. 302(a). 

Moreover, even if such a challenge were not waived, it would be without merit. 

See United States v. Sanchez-Espinoza, 343 F. App’x 254, 256 (9th Cir. 

2009); see also United States v. Scheffer, 523 U.S. 303, 308 (1998).
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This Court held that the trial court did not abuse its discretion by 

excluding the evidence. First, this Court explained that the probative value 

of the evidence was low because it was not the extent of the injuries that Akrie 

suffered that was critical to his defense. Id. at 987. Rather, it was the fact 

that an alleged assault occurred. See id. This is even more true in this case 

because Appellant was charged on the night of the incident. At that time, 

police were not aware of the extent of any alleged injuries that Appellant 

suffered during the confrontation. It was the alleged fact that excessive force 

was used that was critical to Appellant’s defense. The probative value of the 

proffered evidence in this case was, therefore, less than the similar evidence 

proffered in Akrie. 

Moreover, in Akrie this Court concluded that “the risk of confusing the 

issues was great. If [the evidence] were admitted [] it is likely that the jury 

would have focused on [the officer’s] use of excessive force instead of on 

whether [the defendant] committed the alleged offenses.” Id. (cleaned up). 

In reaching this conclusion, this Court relied on persuasive authority from 

federal and state courts around the nation. Id. at 987-988 (collecting cases). 

The same is true in this case. The trial court permitted Appellant’s neurologist 

to testify regarding the injuries Appellant allegedly suffered. The trial court 

also permitted Appellant to testify about the alleged assault. If the trial court 

permitted Appellant’s mother and/or sister to testify regarding the alleged 

injuries Appellant suffered, the jury could have been confused into thinking 
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the trial was about the alleged police misconduct. Although the alleged police 

misconduct was part of Appellant’s defense, the ultimate question was 

whether Appellant committed the alleged offenses. Because the probative 

value of the evidence did not outweigh the risk of confusing the jury, the trial 

court did not abuse its discretion in sustaining the Commonwealth’s 

objection.12

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/28/19

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12 Moreover, as Appellant and his neurologist testified as to the injuries 

Appellant allegedly suffered, allowing Appellant’s mother and/or sister to 

also testify as to his injuries would “needlessly present [] cumulative 

evidence.” Pa.R.Evid. 403.