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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ROBERT COVERT, : No. 1517 MDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered August 29, 2019,

in the Court of Common Pleas of Huntingdon County

Criminal Division at No. CP-31-CR-0000514-2017

BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2020

Robert Covert appeals from the August 29, 2019 judgment of sentence 

entered by the Court of Common Pleas of Huntingdon County following his 

conviction of theft by unlawful taking.1 The trial court sentenced appellant to 

18-36 months’ incarceration, with credit for time served, to be followed by 

three years’ probation. After careful review, we affirm.

The following procedural history can be gleaned from the record: On 

September 1, 2017, the Commonwealth charged appellant with burglary, 

criminal trespass, theft by unlawful taking, receiving stolen property, and 

criminal mischief. The trial court scheduled jury selection to commence on 

July 2, 2018. On July 2, 2018, appellant requested a continuance, and the 

 

1 18 Pa.C.S.A. § 3921(a).
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trial court rescheduled jury selection for November 5, 2018. (See notes of 

testimony, 7/2/18 at unnumbered page 2.)

On November 5, 2018, appellant failed to appear for jury selection. The 

trial court issued a bench warrant as a result of appellant’s failure to appear. 

On February 26, 2019, appellant filed a motion for dismissal pursuant to 

Pa.R.Crim.P. 600(D)(1).2 Following a hearing held on May 9, 2019, the trial 

court denied appellant’s Rule 600 motion on May 21, 2019. Appellant filed a 

second Rule 600 motion on August 7, 2019,3 which the trial court denied on 

August 8, 2019.

On August 19, 2019, a jury convicted appellant of one count of theft by 

unlawful taking. The trial court imposed sentence on August 29, 2019. On

September 9, 2019, appellant filed a timely notice of appeal. The trial court 

ordered appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. On 

November 4, 2019, the trial court filed an opinion pursuant to 

Pa.R.A.P. 1925(a). 

Appellant raises the following issue for our review:

Did the trial court err when it denied [appellant’s] 

Pre-Trial Motion to dismiss the above-captioned case 

 

2 While appellant’s February 26, 2019 Rule 600 motion was pending, the trial 

court appointed Lance T. Marshall, Esq., to represent appellant, replacing 

Christopher B. Wencker, Esq.

3 Appellant avers that he filed a second Rule 600 motion “[o]ut of an 

abundance of caution[] in order to preserve this issue for appeal.” (Appellant’s 

brief at 12 n.1.)
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pursuant to Pa.R.Crim.[P]. 600(A)(2)(a) on May 21, 

2019 and again on August 8, 2019 when the criminal 

complaint was filed on September 1, 2017 and a jury 

was selected on August 5, 2019?

Appellant’s brief at 6.

“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. Hill, 

[] 736 A.2d 578, 581 ([Pa.] 1999). See also

Commonwealth v. McNear, 852 A.2d 401 

(Pa.Super. 2004). “Judicial discretion requires action 

in conformity with law, upon facts and circumstances 

judicially before the court, after hearing and due 

consideration.” Commonwealth v. Krick, [] 67 A.2d 

746, 749 ([Pa.Super.] 1949). “An abuse of discretion 

is not merely an error of judgment, but if in reaching 

a conclusion the law is overridden or misapplied or the 

judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias, or ill will, as shown 

by the evidence or the record, discretion is abused.” 

Commonwealth v. Jones, 826 A.2d 900, 907 

(Pa.Super. 2003) (en banc) (citing Commonwealth 

v. Spiewak, [] 617 A.2d 696, 699 n. 4 ([Pa.] 1992)).

“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.” Hill, 

supra [] at 581; McNear, supra at 404. See also 

Commonwealth v. Jackson, 765 A.2d 389 

(Pa.Super. 2000), appeal denied, [] 793 A.2d 905 

([Pa.] 2002). “[A]n appellate court must view the 

facts in the light most favorable to the prevailing 

party.” Id. at 392.

. . . .

In assessing a Rule 600 claim, the court must exclude 

from the time for commencement of trial any periods 

during which the defendant was unavailable, including 

any continuances the defendant requested and any 

periods for which he expressly waived his rights under 

Rule 600. Pa.R.Crim.P. 600(C). “A defendant has no 
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duty to object when his trial is scheduled beyond the 

Rule [600] time period so long as he does not indicate 

that he approves of or accepts the delay.”

Commonwealth v. Taylor, [] 598 A.2d 1000, 1003 

([Pa.Super.] 1991), appeal denied, [] 613 A.2d 559 

([Pa.] 1992) (addressing Municipal Court’s 

counterpart to speedy trial rule). 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.

Commonwealth v. Guldin, [], 463 A.2d 1011, 1014 

([Pa.] 1983). Significantly, when the defendant signs 

the Commonwealth's motion for postponement and 

registers no objection to the postponement, and the 

motion indicates trial will be scheduled beyond the 

Rule 600 time limit, the signed consent without 

objection can be interpreted as consent to the new 

date and waiver of any Rule 600 claim arising from 

that postponement. Commonwealth v. Walls, [], 

449 A.2d 690, 692 ([Pa.Super.] 1982). Finally, 

“judicial delay is a justifiable basis for an extension of 

time if the Commonwealth is ready to proceed.” 

Commonwealth v. Wroten, [], 451 A.2d 678, 681 

([Pa.Super.] 1982).

Commonwealth v. Hunt, 858 A.2d 1234, 1238-1239, 1241 (Pa.Super. 

2004) (en banc), appeal denied, 875 A.2d 1073 (Pa. 2005).

Before we can review the merits of appellant’s Rule 600 claim, we must 

first determine whether appellant has waived the issue by failing to appear for 

jury selection on November 5, 2018.4 In Commonwealth v. Steltz, 560 

A.2d 1390 (Pa. 1988), our supreme court held that a “voluntary absence from 

 

4 “A trial commences when the trial judge determines that the parties are 

present and directs them to proceed to voir dire or to opening argument, or 

to the hearing of any motions that had been reserved for the time of trial, or 

to the taking of testimony, or to some other such first step in the trial.” 

Pa.R.Crim.P. 600 cmnt., citing Commonwealth v. Kluska, [], 399 A.2d 681 

([Pa.] 1979); Commonwealth v. Lamonna, [], 373 A.2d 1355 ([Pa.] 1977).
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a day set for trial within Rule [600] is a waiver of that rule.” Id. at 1391 

(emphasis added). Our supreme court reaffirmed its Steltz holding in

Commonwealth v. Brock, 61 A.3d 1015, 1022 (Pa. 2013). Most recently, 

our supreme court in Commonwealth v. Barbour, 189 A.3d 944 (Pa. 2018), 

restated the holding in Steltz and reaffirmed that the waiver rule applies “only 

where a defendant fails to appear for a trial that complied with the 

requirements of Rule 600.” Id. at 960-961. Accordingly, our initial inquiry is 

whether appellant’s original trial date of November 5, 2018, complied with 

Rule 600.

Here, appellant’s case was scheduled for jury selection on November 5, 

2018—430 days after the Commonwealth filed the complaint in this case on 

September 1, 2017. Appellant concedes that a total of 70 days between the 

day the complaint was filed and his original date for jury selection are 

excludable for the purposes of Rule 600. (Appellant’s brief at 18-19.) Taking 

into account the excludable time, the adjusted run-date for appellant’s trial 

was November 13, 2018.5 As conceded by appellant, had a jury been selected 

on November 5, 2018, “as [] was originally scheduled, [appellant] would have 

been within the Rule 600 time limits by a period of [eight] days.” (Appellant’s 

brief at 19.) We, therefore, find that appellant, through his voluntary absence 

 

5 Appellant’s adjusted run date was November 10, 2018. Because 

November 10, 2018, fell on a Saturday and the trial court was closed on 

November 12, 2018, in observance of Veterans’ Day, November 13, 2018,

represents appellant’s adjusted Rule 600 run date. See 1 Pa.C.S.A. § 1908.
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from the original day set for jury selection within the Rule 600 time-frame, 

waives his Rule 600 claim.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/08/2020