J-S45005-17

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

RAFIYQ HARDING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1697 EDA 2016

Appeal from the Judgment of Sentence January 20, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0011285-2014

BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 29, 2017

Appellant, Rafiyq Harding, appeals nunc pro tunc from the judgment of 

sentence entered in the Philadelphia County Court of Common Pleas, 

following his bench trial convictions of firearms not to be carried without a 

license and carrying firearms on public streets in Philadelphia.1 We affirm. 

In its opinion, the trial court fully and correctly sets forth the relevant 

facts and procedural history. Therefore, we have no reed to restate them. 

Appellant raises the following issues for our review:

IS THE EVIDENCE SUFFICIENT AS A MATTER OF LAW TO 

SUSTAIN APPELLANT’S CONVICTION FOR THE CRIMES OF 

18 PA.C.S.A. §§ 6106 AND 6108 AS THE EVIDENCE DOES 

NOT ESTABLISH THAT [APPELLANT] CONSTRUCTIVELY 

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1 18 Pa.C.S.A. §§ 6016(a)(1), 6108, respectively. 
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POSSESSED A FIREARM RECOVERED FROM A VEHICLE 

WHERE: (A) THERE IS NO PHYSICAL, FORENSIC, OR 

SCIENTIFIC EVIDENCE ESTABLISHING [APPELLANT’S] 

POSSESSION OR USE OF A FIREARM; (B) THE FIREARM 

WAS RECOVERED FROM A VEHICLE THAT WAS NOT 

OWNED BY, OR REGISTERED TO, [APPELLANT]; (C) 

[APPELLANT] WAS NOT IN THE VEHICLE WHEN POLICE 

SEARCHED THE VEHICLE AND RECOVERED THE FIREARM; 

(D) THE FIREARM WAS RECOVERED FROM THE BACK SEAT 

OF THE VEHICLE AND [APPELLANT] WAS NEVER SEEN IN 

THE BACKSEAT OF THE VEHICLE; AND, (E) [APPELLANT] 

WAS NEVER SEEN PUTTING ANYTHING INTO THE 

VEHICLE, INCLUDING THE FIREARM RECOVERED BY 

POLICE?

IS THE VERDICT FOR ALL CRIMES OF 18 PA.C.S.A. §§ 

6106 AND 6108 AGAINST THE WEIGHT OF THE EVIDENCE 

AND SO CONTRARY TO THE EVIDENCE THAT IT SHOCKS 

ONE’S SENSE OF JUSTICE AS THE EVIDENCE DOES NOT 

ESTABLISH THAT [APPELLANT] CONSTRUCTIVELY 

POSSESSED A FIREARM RECOVERED FROM A VEHICLE 

WHERE: (A) THERE IS NO PHYSICAL, FORENSIC, OR 

SCIENTIFIC EVIDENCE ESTABLISHING [APPELLANT’S] 

POSSESSION OR USE OF A FIREARM; (B) THE FIREARM 

WAS RECOVERED FROM A VEHICLE THAT WAS NOT 

OWNED BY, OR REGISTERED TO, [APPELLANT]; (C) 

[APPELLANT] WAS NOT IN THE VEHICLE WHEN POLICE 

SEARCHED THE VEHICLE AND RECOVERED THE FIREARM; 

(D) THE FIREARM WAS RECOVERED FROM THE BACK SEAT 

OF THE VEHICLE AND [APPELLANT] WAS NEVER SEEN IN 

THE BACKSEAT OF THE VEHICLE; AND, (E) [APPELLANT] 

WAS NEVER SEEN PUTTING ANYTHING INTO THE 

VEHICLE, INCLUDING THE FIREARM RECOVERED BY 

POLICE?

DID THE TRIAL COURT ERR WHEN IT DENIED 

APPELLANT’S PRE-TRIAL MOTION TO DISMISS PURSUANT 

TO PA.R.CRIM.P. 600?

IS THE SENTENCE IMPOSED IN THIS MATTER UNDULY 

HARSH, EXCESSIVE AND UNREASONABLE UNDER THE 

CIRCUMSTANCES WHERE IT IS ABOVE THE 

RECOMMENDED/STANDARD RANGE OF THE SENTENCING 

GUIDELINES, AND THE [SENTENCING] COURT FAILED TO 
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TAKE INTO ACCOUNT ALL RELEVANT AND NECESSARY 

FACTORS TO BE CONSIDERED BY A SENTENCING COURT, 

AND/OR IMPOSED A SENTENCE BASED UPON FACTORS OR

EVIDENCE WHICH SHOULD NOT BE RELIED UPON BY A 

SENTENCING COURT?

(Appellant’s Brief at 8-9).2 

A challenge to the sufficiency of the evidence implicates the following 

legal principles:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the [finder] 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. 

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) 

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

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2 For purposes of disposition, we have reordered Appellant’s issues. 
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Regarding our standard of review for a challenge to the weight of the 

evidence, we observe:

The weight of the evidence is exclusively for the finder of 

fact who is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses. An 

appellate court cannot substitute its judgment for that of 

the finder of fact. Thus, we may only reverse the lower 

court’s verdict if it is so contrary to the evidence as to 

shock one’s sense of justice. Moreover, where the trial 

court has ruled on the weight claim below, an appellate 

court’s role is not to consider the underlying question of 

whether the verdict is against the weight of the evidence. 

Rather, appellate review is limited to whether the trial 

court palpably abused its discretion in ruling on the weight 

claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) 

(internal citations omitted). “A weight of the evidence claim concedes that 

the evidence is sufficient to sustain the verdict, but seeks a new trial on the 

ground that the evidence was so one-sided or so weighted in favor of 

acquittal that a guilty verdict shocks one’s sense of justice.” 

Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013), 

cert. denied, ___ U.S. ___, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014). 

“[C]redibility determinations are made by the fact finder and...challenges 

thereto go to the weight...of the evidence.” Commonwealth v. Gaskins, 

692 A.2d 224, 227 (Pa.Super. 1997). 

Section 6106 of the Pennsylvania Uniform Firearms Act describes in 

pertinent part the offense of firearms not to be carried without a license:
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§ 6106. Firearms not to be carried without a license

(a) Offense defined.—

(1) Except as provided in paragraph (2), any person who 

carries a firearm in any vehicle or any person who carries a 

firearm concealed on or about his person, except in his 

place of abode or fixed place of business, without a valid 

and lawfully issued license under this chapter commits a 

felony of the third degree. 

18 Pa.C.S.A. § 6106(a)(1). Section 6108 defines the offense of carrying 

firearms on public streets in Philadelphia in relevant part as follows: 

§ 6108. Carrying firearms on public streets or public 

property in Philadelphia

No person shall carry a firearm, rifle or shotgun at any 

time upon the public streets or upon any public property in 

a city of the first class unless: 

(1) such person is licensed to carry a firearm....

18 Pa.C.S.A. § 6108(1). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Giovanni O. 

Campbell, we conclude Appellant’s sufficiency and weight issues merit no 

relief. The trial court opinion comprehensively discusses and properly 

disposes of Appellant’s first two claims. (See Trial Court Opinion, filed 

November 14, 2016, at 6-10 partially unpaginated) (finding: police saw 

Appellant exit vehicle, close door to vehicle, and walk around to passenger 

side of vehicle; through vehicle window police observed gun inside vehicle in 

plain view; police recovered from vehicle documents containing Appellant’s 
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name; evidence showed Appellant was in possession and control of vehicle; 

Appellant’s nervous behavior and denial of contact with vehicle 

demonstrated Appellant’s consciousness of guilt; under totality of 

circumstances, evidence was sufficient to establish Appellant’s knowledge of 

and constructive possession of gun to sustain Appellant’s firearm 

convictions; VUFA verdicts were not contrary to evidence and did not shock 

court’s sense of justice). The record supports the court’s rationale. 

Accordingly, concerning Appellant’s frist two issues, we affirm on the basis of 

the trial court’s opinion. 

In his third issue, Appellant argues his speedy trial rights were violated 

when trial commenced over a year after the Commonwealth filed its criminal 

complaint. Appellant contends the trial court incorrectly calculated the 

number of days of delay attributable to Appellant. Appellant avers the 

Commonwealth’s delay in timely completing a ballistics report was not 

excusable. Appellant concludes the trial court should have granted his Rule 

600 motion. We disagree. 

“In evaluating Rule 600 issues, our standard of review of a trial court’s 

decision is whether the trial court abused its discretion.” Commonwealth 

v. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc), appeal denied, 

583 Pa. 659, 875 A.2d 1073 (2005).

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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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.

* * *

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.

Id. at 1238-39 (internal citations and quotation marks omitted).

Rule 600 provides, in pertinent part:

Rule 600. Prompt Trial

(A) Commencement of Trial; Time for Trial

* * *

(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. 

Pa.R.Crim.P. 600(A)(2)(a). “Rule 600 generally requires the Commonwealth 
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to bring a defendant...to trial within 365 days of the date the complaint was 

filed.” Hunt, supra at 1240. To obtain relief, a defendant must have a 

valid Rule 600 claim at the time he files his motion for relief. Id. at 1243. 

“The mechanical run date is the date by which the trial must 

commence under Rule 600.” Commonwealth v. McNear, 852 A.2d 401, 

406 (Pa.Super. 2004). 

It is calculated by adding 365 days (the time for 

commencing trial under Rule 600) to the date on which the 

criminal complaint is filed. The mechanical run date can 

be modified or extended by adding to the date any periods 

of time in which delay is caused by the defendant. Once 

the mechanical run date is modified accordingly, it then 

becomes an adjusted run date. 

Id. 

In the context of Rule 600, “excludable time” is differentiated from 

“excusable delay” as follows: 

“Excludable time” is defined in Rule 600(C) as the period 

of time between the filing of the written complaint and the 

defendant’s arrest, provided that the defendant could not 

be apprehended because his whereabouts were unknown 

and could not be determined by due diligence; any period 

of time for which the defendant expressly waives Rule 600; 

and/or such period of delay at any stage of the 

proceedings as results from: (a) the unavailability of the 

defendant or the defendant’s attorney; (b) any 

continuance granted at the request of the defendant or the 

defendant’s attorney. “Excusable delay” is not expressly 

defined in Rule 600, but the legal construct takes into 

account delays which occur as a result of circumstances 

beyond the Commonwealth’s control and despite its due 

diligence.

Hunt, supra at 1241 (internal citations and footnote omitted). 
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If the defense does indicate approval or acceptance of the 

continuance, the time associated with the continuance is 

excludable under Rule 600 as a defense request. 

Significantly, when the defendant signs the 

Commonwealth’s motion for postponement and registers 

no objection to the postponement...the signed consent 

without objection can be interpreted as consent to the new 

date....

Id. See also Commonwealth v. Peterson, 19 A.3d 1131, 1137 

(Pa.Super. 2011) (en banc), affirmed, 615 Pa. 587, 44 A.3d 655 (2012) 

(stating: “A joint continuance is excludable”). 

Delay caused by a co-defendant does not constitute excludable time. 

Commonwealth v. Hill, 558 Pa. 238, 261-62, 736 A.2d 578, 590-91 

(1999). Delay associated with a co-defendant may be excusable, however, 

if the Commonwealth acted with due diligence and the delay was beyond its 

control. Id. at 263, 736 A.2d at 591 (stating: “Even where a [speedy trial] 

violation...has occurred, the motion to dismiss the charges should be denied 

if the Commonwealth exercised due diligence and...the circumstances 

occasioning the postponement were beyond the control of the 

Commonwealth”) (internal quotation marks omitted). 

“Where a defendant is unrepresented and does not waive counsel, the 

defendant is considered to be unavailable.” Commonwealth v. Anderson, 

959 A.2d 1248, 1251 (Pa.Super. 2008). “If an actual delay in the case 

occurs because the defendant appears for proceedings in connection with his 

case without defense counsel and such defendant is financially capable of 

retaining counsel, the delay is excludable time.” Commonwealth v. Roles, 
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116 A.3d 122, 127 (Pa.Super. 2015), appeal denied, 633 Pa. 786, 128 A.3d 

220 (2015) (internal quotation marks omitted). 

Under Rule 600, “a defendant on bail who fails to appear at a court 

proceeding, of which he has been properly notified, is deemed unavailable 

from the time of that proceeding until he is subsequently apprehended or 

until he voluntarily surrenders himself.” Commonwealth v. Baird, 919 

A.2d 258, 260 (Pa.Super. 2007), affirmed, 601 Pa. 625, 975 A.2d 1113 

(2009). “Absent exceptional circumstances..., notice to defense counsel 

constitutes reasonable notice for the purpose of determining a defendant’s 

unavailability under Rule 600.” Commonwealth v. Baird, 601 Pa. 625, 

635, 975 A.2d 1113, 1119 (2009). 

Generally, “delays caused by pretrial motions constitute excludable 

time where the pretrial motion renders the defendant unavailable.” Hill, 

supra at 250, 736 A.2d at 585. 

However, the mere filing of a pretrial motion by a 

defendant does not automatically render him unavailable. 

Rather, a defendant is only unavailable for trial if a delay 

in the commencement of trial is caused by the filing of the 

pretrial motion. If a delay is created, in order to establish 

that the delay is excludable, the Commonwealth must 

demonstrate, by a preponderance of the evidence, that it 

exercised due diligence in opposing or responding to the 

pretrial motion. 

Id. at 254-55, 736 A.2d at 587 (internal citations and footnote omitted). 

Due diligence is a fact-specific concept that must be 

determined on a case-by-case basis. Due diligence does 

not require perfect vigilance and punctilious care, but 

rather a showing by the Commonwealth that a 
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reasonable effort has been put forth. 

Commonwealth v. Brown, 875 A.2d 1128, 1138 (Pa.Super. 2005), appeal 

denied, 586 Pa. 734, 891 A.2d 729 (2005) (quoting Hunt, supra at 1241-

42) (emphasis in original). Further, the issuance of a writ ordering prison 

authorities to bring a defendant to court demonstrates due diligence. 

Commonwealth v. Mines, 797 A.2d 963, 965 (Pa.Super. 2002), appeal 

denied, 571 Pa. 705, 812 A.2d 1229 (2002). 

Instantly, the Commonwealth filed the complaint against Appellant and 

a co-defendant on June 21, 2014. Therefore, the initial Rule 600 mechanical 

run date was June 21, 2015. On July 8, 2014, and August 19, 2014, the 

court granted co-defendant’s requests to continue the preliminary hearing, 

which the court ultimately continued to September 11, 2014. The record 

indicates the Commonwealth appeared and was ready to proceed on both 

July 8, 2014, and August 19, 2014. Thus, the delay between July 8, 2014, 

and September 11, 2014, constituted 65 days of excusable delay. See 

Brown, supra; Hill, supra. The adjusted trial run date for Rule 600 

purposes became August 25, 2015. 

The parties appeared for the preliminary hearing on September 11, 

2014. Upon second call of the list, however, Appellant had been returned to 

custody and the Commonwealth’s police officer witnesses and co-defendant’s 

counsel were unavailable. The court continued the preliminary hearing to 

October 3, 2014. Nothing in the record suggests the Commonwealth was 
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unable to proceed upon first call of the list on September 11th. As the 

Commonwealth had no control of the court’s schedule or its decision to delay 

proceedings on September 11th, the delay between September 11, 2014, 

and October 3, 2014, constituted 22 days of excusable delay. See Brown, 

supra; Hill, supra. The adjusted trial run date for Rule 600 purposes 

became September 16, 2015. Ultimately, Appellant’s preliminary hearing 

occurred on October 3, 2014, when the Commonwealth severed Appellant’s 

case from co-defendant’s case. On October 4, 2014, Appellant posted bail.

At the arraignment on October 24, 2014, the court continued the 

proceeding to allow Appellant to retain private counsel. On November 13, 

2014, Appellant again received a continuance until December 4, 2014, to 

obtain counsel. The delay between October 24, 2014, and December 4, 

2014, constituted 41 days of excludable time. See Roles, supra; Hunt, 

supra. The adjusted trial run date for Rule 600 purposes became October 

27, 2015. 

On December 4, 2014, counsel entered an appearance on behalf of 

Appellant. That same day, counsel requested a continuance for further 

investigation, which the court granted until December 18, 2014. On 

December 18, 2014, counsel again requested a continuance, which the court 

granted until January 15, 2015. The delay between December 4, 2014, and 

January 15, 2015, constituted 42 days of excludable time. See id. The 

delay yielded an adjusted trial run date of December 8, 2015. 
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On January 15, 2015, Appellant failed to appear for a pretrial 

conference. That same day, the court issued a bench warrant for Appellant 

and revoked Appellant’s bail. On January 29, 2015, Appellant returned to 

custody, and the court lifted the bench warrant and rescheduled the pretrial 

conference for February 26, 2015. The delay between January 15, 2015, 

and January 29, 2015, constituted 14 days of excludable time. See Baird, 

supra; Hunt, supra. The adjusted trial run date for Rule 600 purposes 

became December 22, 2015. As the Commonwealth had no control over the 

court’s schedule, the delay between January 29, 2015, and February 26, 

2015, constituted 28 days of excusable delay. See id. The delay yielded an 

adjusted trial run date of January 19, 2016. 

On February 26, 2015, prison authorities failed to bring Appellant to 

court for a pretrial conference. As a result, the court continued the 

conference to March 26, 2015. The record does not demonstrate a writ 

ordering prison authorities to bring Appellant to court on February 26, 2015, 

had been issued. Therefore, the delay between February 26, 2015, and 

March 26, 2015, does not constitute excludable time or excusable delay. 

See Mines, supra. 

On March 26, 2015, prison authorities again failed to bring Appellant 

to court, and the court continued the pretrial conference to May 5, 2015. 

The record indicates the clerk of courts had prepared a writ ordering prison 

authorities to bring Appellant to court on March 26, 2016. Thus, the delay 
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between February 26, 2015, and May 5, 2015, constituted 40 days of 

excusable time. See id. The adjusted trial run date for Rule 600 purposes 

became February 28, 2016. 

At the pretrial conference on May 5, 2015, the Commonwealth 

requested a continuance to complete a ballistics report. The court granted 

the Commonwealth a continuance and scheduled trial for August 31, 2015. 

The record indicates Appellant was unavailable for trial between August 17, 

2015, and August 31, 2015. When the Commonwealth requested a 

continuance on May 5, 2015, Appellant’s case had been pending for nearly 

two years. The record does not establish and the Commonwealth does not 

explain why it had not completed a ballistics report prior to May 5, 2015. 

Thus, the Commonwealth fails to meet its burden of establishing: (1) it 

acted with due diligence in completing the ballistics report; and (2) its 

inability to complete the report before May 5, 2015, was beyond its control. 

See Hill, supra; Brown, supra. The delay between May 5, 2015, and 

August 17, 2015, did not constitute excludable time or excusable delay. 

See Hill, supra. The delay between August 17, 2015, and August 31, 

2015, due to Appellant’s unavailability, however, constituted 14 days 

excludable time. See Hunt, supra. The 14-day delay yielded an adjusted 

trial run date of March 13, 2016. 

On August 31, 2015, the parties jointly requested a continuance. The 

court granted the continuance and scheduled trial for November 3, 2015. 
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The delay between August 31, 2015, and November 3, 2015, constituted 64 

days excludable time. See Peterson, supra. The adjusted trial run date 

for Rule 600 purposes became May 16, 2016. On November 3, 2015, 

Appellant filed several pretrial motions, including a Rule 600 motion. That 

same day, the court conducted a hearing on Appellant’s motions. The 

Commonwealth appeared at the November 3rd hearing and opposed 

Appellant’s motions. The court continued trial to November 4, 2015. This 

delay amounted to 1 day of excludable time, and the adjusted trial run date 

became May 17, 2016. See Hill, supra. 

The following chart summarizes the delays prior to trial:

DATES ACTIVITY DAYS 

DELAY

EXCLUDABLE 

OR EXCUSABLE

ADJUSTED 

RUN DATE

7/8/14-

8/19/14

Preliminary hearing; Appellant’s 

co-defendant requested 

continuance.

42 Excusable; codefendant 

requested 

continuance; 

Commonwealth 

ready to 

proceed

8/2/15

8/19/14-

9/11/14

Preliminary hearing; Appellant’s 

co-defendant’s counsel was 

unavailable.

23 Excusable; codefendant’s 

counsel was 

unavailable; 

Commonwealth 

ready to 

proceed

8/25/15

9/11/14-

10/3/14

Preliminary hearing; police 

officers were unavailable, 

Appellant had been placed back 

into custody, and codefendant’s counsel was 

unavailable.

22 Excusable; all 

parties 

unavailable 

upon second 

call of court’s 

list

9/16/15
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10/24/14-

11/13/14

Arraignment; court continued 

proceeding to permit Appellant 

to retain private counsel.

20 Excludable; 

continuance to 

permit 

Appellant to 

retain counsel

10/6/15

11/13/14-

12/4/14

Arraignment; court granted 

Appellant’s request for a 

continuance to retain counsel. 

21 Excludable; 

Appellant 

requested 

continuance

10/27/15

12/4/14-

12/18/14

Defense counsel entered 

appearance; court granted 

Appellant’s request for a 

continuance to conduct further 

investigation.

14 Excludable; 

Appellant 

requested 

continuance

11/10/15

12/18/14-

1/15/15

Court granted Appellant’s 

request for a continuance to 

conduct further investigation.

28 Excludable; 

Appellant 

requested 

continuance

12/8/15

1/15/15-

1/29/15

Pretrial conference; Appellant 

failed to appear; court issued 

bench warrant for Appellant.

14 Excludable; 

Appellant failed 

to appear

12/22/15

1/29/15-

2/26/15

Bench warrant hearing; court 

lifted bench warrant and set 

pretrial conference for 2/26/15. 

28 Excusable; 

court’s 

rescheduling of 

conference was 

beyond control 

of 

Commonwealth

1/19/16

2/26/15-

3/26/15

Pretrial conference; court 

continued conference because

Appellant was not brought down 

from custody.

28 No; Appellant 

not brought 

down; no writ 

issued on 

record

1/19/16

3/26/15-

5/5/15

Pretrial conference; court 

continued case because 

Appellant was not brought down 

from custody.

40 Excusable; 

Appellant not 

brought down; 

clerk of courts 

had issued writ

2/28/16
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5/5/15-

8/17/15

Pretrial conference; court 

granted Commonwealth’s 

request for a continuance.

104 No; 

Commonwealth 

requested 

continuance

2/28/16

8/17/15-

8/31/15

Appellant unable to appear 

between 8/17/15 and 8/31/15.

14 Excludable; 

Appellant 

unable to 

appear

3/13/16

8/31/15-

11/3/15

Pretrial conference; parties 

jointly requested a continuance.

64 Excludable; 

joint request 

for continuance

5/16/16

11/3/15-

11/4/15

Scheduled trial date; Appellant 

filed several motions; court 

conducted hearing on 

Appellant’s motions and 

continued trial to 11/4/15.

1 Excludable; 

Appellant filed 

several motions 

on the 

scheduled trial 

date

5/17/16

Appellant’s trial commenced on November 4, 2015, long before the 

adjusted run date of May 17, 2016. Therefore, Appellant did not have a 

viable speedy trial claim before trial commenced, and his Rule 600 motion 

was premature. See Hunt, supra. Thus, Appellant’s third issue fails. 

In his fourth issue, Appellant argues the sentencing court imposed 

Appellant’s sentence based in part on the court’s belief Appellant had a 

violation of the Uniform Firearms Act (“VUFA”) conviction that predated the 

current offenses. Appellant avers the court misconstrued the date of 

Appellant’s separate VUFA conviction. Appellant contends he was convicted 

of a distinct VUFA offense after the date of the current offenses. Appellant 

concludes the court imposed an excessive and unreasonable sentence. 

Appellant’s challenge is to the discretionary aspects of his sentence. See 

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super. 2002) (stating 
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claim that sentence is manifestly excessive challenges discretionary aspects 

of sentencing). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary 

aspect of sentencing issue:

We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 

902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see Pa.R.Crim.P. 720; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b). 

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal 

denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v. 

Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 

909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of 

a sentence are waived if they are not raised at the sentencing hearing or in a 

motion to modify the sentence imposed at that hearing. Commonwealth 

v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 

831 A.2d 599 (2003). Additionally, the failure to raise an issue in a courtordered Rule 1925(b) statement results in waiver of the issue on appeal. 

Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal 

denied, 594 Pa. 678, 932 A.2d 1287 (2007). 
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Our standard of review of a challenge to the discretionary aspects of 

sentencing is as follows:

Sentencing is a matter vested in the sound discretion of 

the sentencing judge, and a sentence will not be disturbed 

on appeal absent a manifest abuse of discretion. In this 

context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, 

by reference to the record, that the sentencing court 

ignored or misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or arrived at 

a manifestly unreasonable decision. 

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal 

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v. 

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)). 

As a preliminary matter, Appellant did not object at sentencing, in his 

post-sentence motion, and in his Rule 1925(b) statement on the ground that 

his sentence is excessive and harsh because the court based the sentence 

on, inter alia, Appellant having a VUFA conviction that predated the current 

VUFA offenses. Instead, in his post-sentence motion, Appellant claimed the 

sentence exceeded both the applicable guideline range and the 

Commonwealth’s recommended sentence. (See Post-Sentence Motion, filed 

1/21/16, at 3). In his Rule 1925(b) statement, Appellant contended the 

sentence was above the aggravated range, the court failed to consider all 

relevant and necessary sentencing factors, and the court based the sentence 

on impermissible information. (See Rule 1925(b) Statement, filed 6/20/16, 

at 2-3, unpaginated; R.R. attached to Appellant’s Brief at B). Thus, 
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Appellant waived his sentencing challenge for purposes of our review. See

Poncala, supra; Mann, supra. 

Moreover, even if Appellant had properly preserved his sentencing 

issue, the record belies his contention. At sentencing, the court set forth its 

rationale for imposing Appellant’s sentence as follows:

THE COURT: For completeness, I’ll mark as Court-1 

[Appellant]’s secure criminal history, which indicates a 

disposition date of June 18, 2015, ...of riot plan, using a 

firearm or weapon, felony of the third degree, as well as 

VUFA [Section] 6106.

On November 11, 2014, ...[Appellant] entered a guilty plea 

to submitting materially false statement in the purchase, 

delivery, or transfer of a firearm. There is a DUI that 

counsel has mentioned with a disposition of the same date. 

And finally, we have the present conviction[s] for VUFA 

under [Sections] 6106 and 6108. 

I’ve considered the arguments of both counsel, the 

presentence [investigation] report, the sentencing 

guidelines form in this case. 

* * *

I’ve considered the arguments of both counsel, the 

sentencing guidelines form in this case, the facts and 

circumstances of the offense, [Appellant]’s criminal record, 

...the Commonwealth’s sentencing memorandum. 

* * *

So in addition to everything else, I’ve considered 

[Appellant]’s allocution. 

I’ll consider as a mitigating factor...[Appellant]’s completion 

of that program while he’s in custody. 

But I find aggravating factors in this case that justify a 

sentence that’s above the guidelines—call for it, as a 
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matter of fact. 

Overall, the guidelines in this case fail to fully represent 

[Appellant]’s criminal history. That includes, but is not 

limited to, his history of absconding, which demonstrates, 

if nothing else, that he’s not a good candidate for 

supervision, [Appellant]’s attempts to procure a firearm 

after he had already had a conviction for VUFA. That’s 

most telling. And it confirms the comment on the 

presentence [investigation] report that he shows a 

persistence to carry firearms. 

There’s no question that VUFA violations are repeated in 

[Appellant]’s relatively short criminal history. .... 

(N.T. Sentencing Hearing, 1/20/16, at 18-22). 

At sentencing, the court did not state Appellant had VUFA convictions 

at the time he committed the current offenses. Rather, the court noted the 

Appellant’s criminal record demonstrated Appellant had a history of carrying 

firearms. Therefore, even if Appellant had properly preserved his sentencing 

claim, he would not be entitled to relief. See Hyland, supra. Accordingly, 

we affirm. See generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 

1244, 1246 n.3 (2007) (stating where issues are waived on appeal, we 

should affirm). 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2017