Com. v. McDaniels, J.

J-S16039-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JAMAR MCDANIELS :

:

Appellant : No. 1331 EDA 2020

Appeal from the Judgment of Sentence Entered June 4, 2020

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0000061-2019

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 22, 2021

Appellant Jamar McDaniels appeals from the Judgment of Sentence

entered in the Court of Common Pleas of Montgomery County on June 4, 2020,

following his convictions of various firearms and drug charges. Following our

review, we affirm.

The trial court detailed the facts and procedural history herein as

follows:

On October 10, 17, 26 and 29, 2018, Sergeant Edward

Kropp, Jr. utilized two confidential informants to make a total of

four controlled buys from the property at 342 Lincoln Avenue,

Pottstown, Montgomery County. Notes of Testimony, Mar. 3, 2020

at 89. Prior to each buy, the CI was searched to ensure that they

had no money or drugs on their person or in their car. Id. at 92,

100, 219. After the search, they were given prerecorded currency

to make the buy. Id. at 92, 100[.] When the informant returned

with the drugs, they were searched again to ensure they had no

additional drugs on their person. Id. at 94.

____________________________________________

* Former Justice specially assigned to the Superior Court.

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Officer Brett Cortis set up surveillance in the area of 342

Lincoln Avenue for each of the controlled buys. Id. at 175. On

October 10, 27 and 29, 2018, Cortis observed the CI walk to the

residence and enter the home through the west door; a few

minutes later, the CI exited and returned to Sgt. Kropp. Id. at

175, 177. On October 17, 2018, Cortis observed [Appellant] 1 and

Jean Gross2 outside the residence at 342 Lincoln Ave. Id. at 176.

He then observed the CI arrive by vehicle, get out of the car and

meet with [Appellant] outside. Id. The two then entered the home.

Id. A short time later, both exited the home, the CI returned to

their vehicle and drove away, and [Appellant] remained outside.

Id. Based on this series of controlled buys, law enforcement

obtained a search warrant for the residence, however, [Appellant]

and his co-conspirators were not charged with these controlled

buys.

On November 2, 2018, officers served the search warrant

on the property at 342 Lincoln Ave. Id. at 25. One of the CIs had

also provided information that the doors of the residence were

fortified with two by fours and that weapons were readily available

in the home. Id. at 26. When no one answered the door, police

forced entry into the home. Id. at 27. Four individuals were inside

the home, Ronald [McDaniels] and [Appellant], Kysim Gardner

and Ronald McDaniels’ minor son. Id. at 28-29, 34.

The parties stipulated that the following items that were

recovered from the first floor of the home contained controlled

substances: the clear zip-lock bag located in the trash bag on the

kitchen floor, contained 0.39 grams of cocaine. Exhibit C-63; the

nine (9) clear capsules located on the kitchen floor, contained 0.06

grams of caffeine. Exhibit C-67; the twenty-seven (27) clear

capsules located inside the black bag on the kitchen floor

contained 0.18 grams of caffeine. Exhibit C-70; the four (4) plastic

containers with yellow lids located inside the black vest on the

basement door, contained 0.88 grams of cocaine and N-

Ethylpentylone. Exhibit C-74; the silver capsule located in the

leather jacket on the basement door, contained 0.71 grams of

caffeine, sildenafil, and tadalafil. Exhibit C-75; the knot sealed

clear bag and the clear zip-lock bag located inside the silver box

in the dining room, contained 12.73 grams of cocaine and 15.64

grams of cocaine, respectively. Exhibit C-79; the three (3) clear

zip-lock bags and the yellow plastic container located inside the

silver box in the dining room, contained 0.98 grams of cocaine

and 0.28 grams of cocaine, respectively. Exhibit C-80; the fifteen

(15) yellow plastic containers located inside cigarette wrapper in

the dining room dresser, contained 3.56 grams of cocaine and N-

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Ethylpentylone. Exhibit C-83; C-the eighty-five (85) yellow plastic

containers located inside the black Zoraki gun case in the dining

room, contained 20.05 grams of cocaine and N-Ethylpentylone.

Exhibit C-84; the two (2) digital scales located inside dining room

dresser drawer, both test positive for cocaine. Exhibit C-86. Mail

addressed to [Appellant] and a physical therapy schedule were

also recovered from the dresser drawers in the dining room. Id.

at 67-69.

A loaded Zoraki handgun with an extended magazine was

found in a bag in the living room. Id. at 74. Two Newport cigarette

packs containing a razor, packaging and a Sprint receipt for the

phone number 267-701-1135. Id. at 78. A loaded Ruger pistol

with an obliterated serial number was recovered from inside of an

end table in the living room. Id. at 79-80.

Upstairs, in the south bedroom of the home, a sock was

found in a cardboard box containing $2,400 cash, a social security

card for [Appellant], a state identification card for [Appellant], two

green dot debit cards for [Appellant], and a knotted baggie of

cocaine. Id. at 180-183. The clear plastic bag located in the sock,

contained 14.32 grams of cocaine. Id. at 184. A duffle bag

containing two cell phones, ammunition and mail addressed to

[Appellant] was also found in the same bedroom. Id. at 185-186.

In the north bedroom, two loaded handguns, a .40 caliber

Taurus and a Glock 27, were found sitting on an ottoman. Id. at

190-191. Next to the guns, police recovered a brown eyeglass

case which contained a clear zip-lock plastic bag containing 2.93

grams of marijuana and plastic vials identical to those found in

the kitchen. Id. at 195-197. Inside the ottoman, police recovered

a drug sales ledger, packaging and cutting materials, as well as a

cigar box containing cocaine, paperwork addressed to Ronald

McDaniels and a copy of his birth certificate. Id. at 197-198. The

yellow plastic container located inside the cigar box in the north

bedroom, contained 0.07 grams of cocaine. Id. at 199. The two

(2) clear plastic bags located inside the cigar box in the north

bedroom, contained 117.84 grams of cocaine. Id. at 200.

Additionally, $4,667 cash was found in a sock in the pocket of a

pair of jeans on the floor of this bedroom. Id. at 202. A

prerecorded $20 bill from the controlled buy on October 29, 2018

was found in the front pocket of the jeans and another $600 cash

was in the other front pocket. Id. at 204. On the nightstand in this

room, police recovered a state issued identification card for Ronald

McDaniels as well as a cell phone. Id. Ammunition, another drug

ledger and a marijuana pipe were also recovered from the

nightstand. Id. at 206. In the top of the closet in this bedroom,

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police recovered glassine baggies, typically used to package drugs

for sale. Id. at 209. Additional paperwork addressed to Ronald

McDaniels was found in the closet. Id. at 211. Another gun and

ammunition were recovered under the bed. Id. at 213. A total of

five guns were recovered from the home. Id. at 215.

Police were able to download the contents of the phone used

by Jean Gross and the phone used by [Appellant]. N.T. Mar. 5,

2020 at 31, 33. The phone belonging to [Appellant] contained

numerous drug related text messages in the months leading up to

the controlled buys and search warrant. Id. at 39-43. The

messages also reference Ronald McDaniels and Jean Gross as

being involved in the drug trade. Id. at 43.

A criminal complaint was filed November 2, 2018. The first

pretrial conference in this matter was scheduled for March 21,

2019. On that date, [Appellant] requested a continuance. The next

pretrial conference was scheduled for April 10, 2019. On April 10,

2019, [Appellant] filed an Order for Competency Evaluation. On

that date, [Appellant] requested a second continuance for sixty

days to obtain a Competency Evaluation and signed a Rule 600

waiver. On April 11, 2019, [Appellant] filed two documents titled

“Request for Pretrial Discovery Pursuant to Pa. R. Crim. P. 573”

and a hearing was scheduled for April 26, 2019. On April 26, 2019,

The Honorable Arthur R. Tilson, acting as the Criminal

Miscellaneous Judge, dismissed the Request as Moot, noting that

the Defendant’s Motion to Compel the confidential informant

(“CI”) should be heard by the undersigned. The case was placed

on the call of the trial list for June 24, 2019. On June 24, 2019,

the case was placed on standby for the period of July 8 through

July 26, 2019. At the next call of the trial list, the case was again

placed on standby for the period of August 5, 2019 through August

16, 2019. At the next trial list on August 19, 2019, the case was

again placed on standby for the period of August 26, 2019 through

September 20, 2019. By Order of August 23, 2019, a Competency

hearing was scheduled for August 28, 2019. On August 28, 2019,

the matter was continued to September 23, 2019 for a status

conference on the [Appellant’s] competency. On September 16,

2019, [Appellant] was directed to appear for a competency

evaluation on September 23, 2019. At the next call of the trial the

case was again placed on standby with the notation [Appellant]

was declared incompetent. On October 21, 2019, the case was

again placed on standby with the notation that the

Commonwealth's competency evaluation was imminent.

On November 4, 2019, [Appellant] requested a continuance

of the Bench Trial scheduled for that date. A determination of

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competency hearing was scheduled for November 25, 2019. The

hearing was rescheduled for December 11, 2019. On that date, a

witness failed to appear and a bench warrant was issued. The

matter was scheduled again for a determination of competency

for January 22, 2020. On that date [Appellant] was found

competent to stand trial.

On February 13, 2020, [Appellant] filed a “Motion to Dismiss

for Violation of Rule 600 and Motion to Continue Trial.” A hearing

on [Appellant’s] Rule 600 Motion was held on February 13, 2020.

The [c]ourt denied the same by Order. Trial commenced on March

2, 2020. Following a two[-]day trial, [Appellant] was convicted of

Possession with the Intent to Distribute-Cocaine3, Possession of a

Firearm with an Altered Manufacturer's Number4, Criminal Use of

Communication Facility5, and three counts of Conspiracy.6

On June 4, 2020, [Appellant] was sentenced to an aggregate

term of 10-20 years’ imprisonment in a State Correctional

Institution. This appeal followed. By Order of July 6, 2020, the

Defendant was directed to file a concise statement of errors,

pursuant to Pa. R.A.P. 1925 (b). He has since complied with that

directive.

___

1 In the matter indexed at 62-2019, following a joint trial with

[Appellant], Ronald McDaniels was convicted of three counts

Conspiracy, Receiving Stolen Property, Possession of Firearm with

an Altered Manufacturer's Number, Possession with the Intent to

Deliver. He received an aggregate sentence of 9-18 years’

incarceration in a State Correctional Facility.

2 In the matter indexed at 63-19 Jean Gross is awaiting trial.

3 35 Pa. C.S. § 780-113(a)(30).

4 18 Pa. C.S.A. § 6110.2(a).

5 18 Pa. C.S.A. §7512 (a).

6 18 Pa. C.S.A. § 903 (a)(l).

Trial Court Opinion, filed 9/14/20, at 1-7.

In his brief, Appellant presents the following Statement of the Questions

Involved:

I. Did the trial court abuse its discretion when it allowed the

admission of an out-of-court statement by a confidential

informant who identified a drug distributor contacted via

phone as “B” prior to a drug transaction, when that

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confidential informant immediately thereafter provided

police with drugs presumably from “B,” and when later

evidence connected Defendant/Appellant to the alias “B”?

II. Were [Appellant’s] rights to compulsory process and

confrontation afforded by Article 1, Section 9 of

Pennsylvania’s constitution violated when the trial court

quashed and denied a request by [Appellant] to obtain the

names, addresses, criminal histories, and other information

that would effect [sic] the reliability and bias of confidential

informants, when those confidential informant’s [sic] out-

of-court statements were admitted through police officers at

trial, identifying the [Appellant] as an individual with whom

drug transactions were conducted and as the

owner/operator of a phone on which drug transactions were

conducted?

III. Were the [Appellant’s] rights pursuant to Pa.R.Crim.P. 600

violated, when the trial court denied [Appellant’] request to

dismiss the charges against him, when the [c]ourt had

previously granted a continuance of trial requested by the

[Appellant] for late discovery and motions provided by and

filed by the Commonwealth more than 365 days after the

criminal complaint was filed?

Brief for Appellant at 6.

Before we address the merits of Appellant's first two issues, we must

determine whether the claims presented have been properly preserved for our

consideration on appeal. Our Courts consistently have ruled that where the

trial court directs a defendant to file a concise statement pursuant to

Pennsylvania Rule of Appellate Procedure 1925, any issues not raised in that

statement shall be waived. Commonwealth v. Bullock, 948 A.2d 818, 823

(Pa.Super. 2008) (citing Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.

1998)). In Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002), our

Supreme Court reaffirmed its holding in Lord and stated: “In Lord, however,

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this Court eliminated any aspect of discretion and established a bright-line

rule for waiver under Rule 1925 .... Thus, waiver under Rule 1925 is

automatic.” See also Commonwealth v. Oliver, 946 A.2d 1111, 1115

(Pa.Super. 2008) (noting that Lord “requires a finding of waiver whenever an

appellant fails to raise an issue in a court-ordered Pa.R.A.P. 1925(b)

statement”).

We are mindful that Rule 1925 is intended to aid trial judges in

identifying and focusing upon those issues the parties plan to raise on appeal.

The absence of a trial court opinion addressing a particular claim poses a

substantial impediment to meaningful and effective appellate review.

Commonwealth v. Lemon, 804 A.2d 34, 36 (Pa.Super. 2002). Thus, Rule

1925 is a crucial component of the appellate process. Id. at 37. “When a court

has to guess what issues an appellant is appealing, that is not enough for

meaningful review.” Commonwealth v. Dowling, 778 A.2d 683, 686

(Pa.Super. 2001).

Furthermore, claims that are not raised before the trial court are waived.

See Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.Super. 2000)

(stating that “[a] claim which has not been raised before the trial court cannot

be raised for the first time on appeal.”); Commonwealth v. Ryan, 909 A.2d

839, 845 (Pa.Super. 2006) (citing Commonwealth v. Gordon, 528 A.2d

631, 638 (Pa.Super. 1987) (reiterating that “[a] theory of error different from

that presented to the trial jurist is waived on appeal, even if both theories

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support the same basic allegation of error which gives rise to the claim for

relief.”)). Moreover, “[e]ven if the trial court correctly guesses the issues

[a]ppellants raise[ ] on appeal and writes an opinion pursuant to that

supposition the issues [are] still waived.” Commonwealth v. Heggins, 809

A.2d 908, 911 (Pa.Super. 2002).

Also, we do not condone Appellant’s incorporation by reference of his

Motion for Pretrial Discovery, Orders of Court, and excerpts from the notes of

trial testimony in paragraphs one and two of his Concise Statement of Matters

Complained of on Appeal. See Commonwealth v. Smith, 955 A.2d 391,

393 n.5 (Pa.Super. 2008) (stating: “We do not condone the Commonwealth's

incorporation by reference of its motion for reconsideration. A Rule 1925(b)

statement should include a concise statement of each issue to be raised on

appeal”).

Herein, Appellant included the following issues in his concise statement:

1. The [c]ourt erred in denying [Appellant’s] Motion for

Pretrial Discovery pursuant to the protections afforded by

Pa.R.Crim.P. 573, and the right to confrontation and compulsory

process guaranteed by Article 1, Section 9 of Pennsylvania's

constitution. See Motion for Pretrial Discovery filed 4 / 11 / 19,

and Orders of Court dated 4/26/ 19, 2/ 13/20.

2. The [c]ourt erred in denying [Appellant’s] objection to hearsay

testimony of a confidential informant being admitted at trial, in

contravention of Pa. R.E. 802, [Appellant’s] right to confrontation

pursuant to the Sixth Amendment of the United Sates

Constitution, and the right to confrontation and compulsory

process guaranteed by Article 1, Section 9 of Pennsylvania's

constitution. See N.T. 3/3/20 p. 98: 17-99:25: 142:22-144:3.

3. The [c]ourt [e]rred in Denying [Appellant’s] Motion to Dismiss

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for Violation of Rule 600, in contravention of the protections

afforded by Pa. R.Crim.P. 600. See Defendant's Motion to Dismiss

for Violation of Rule 600 and Motion to Continue Trial filed 2/

13/20 and the Order of Court dated 2/ 13/20.

See Concise Statement of Matters Complained of on Appeal, filed 7/27/20, at

¶¶ 1-3.

The trial court characterized Appellant’s first allegation as “couched as

a vague, discovery related issue [that] appears to actually challenge th[e]

[c]ourt’s denial of his motion to compel the identity of the confidential

informants used in this case.” Trial Court Opinion, filed 9/14/20, at 8. Indeed,

Appellant’s Rule 1925(b) statement did not include the precise claims of error

he advances before this Court, i.e., that a statement made by one of the CIs

identifying Appellant as the source of crack cocaine the CI purchased was

erroneously considered admissible as evidence at trial under the permissible

course-of-conduct exception to the hearsay doctrine. Brief for Appellant at

11. Accordingly, we conclude Appellant’s first issue presented in his appellate

brief is waived.

Appellant’s second claim in his concise statement similarly raised only

general allegations of violations of the Pennsylvania Rules of Evidence and of

his constitutional rights to confrontation. Yet, in his appellate brief, he

develops his theory that “[a]s a matter of first impression,

Appellant/Defendant argues that Com. v. Loyd, 567 A.2d 1357 (Pa. 1989) and

its progeny are applicable, and the qualified immunity afforded to confidential

informants by common law is not applicable to a request for confidential

informant information pursuant to Article 1, Section 9 of Pennsylvania’s

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constitution.” Brief for Appellant at 11, 17-26. In light of the foregoing,

Appellant has waived this issue as well.1

In his third issue, Appellant maintains the trial court erred in denying

his Motion to Dismiss pursuant to Pa.R.Crim.P. 600. Appellant argues the

Commonwealth failed to provide “full, requested discovery,” “file motions” or

provide “critical notice of evidence it sought to be admitted” within the 365-

day time period. Although he admits “[t]here is no denying that no party

could possibly be ready for trial during a competency evaluation by

[Appellant],” he concludes that this “played no bearing on whether the

Commonwealth could prepare discovery to provide to [Appellant], or file a

____________________________________________

1 Nonetheless, even if we were to consider the merits of Appellant’s first two

questions presented in his appellate brief, we still would conclude that he is

not entitled to relief. Here, the trial court accurately and thoroughly addressed

the merits of these challenges and found neither afforded Appellant relief.

See Trial Court Opinion, 9/14/20, at 8-14. The trial court concluded that the

identity of the CIs was not material to any defense raised at trial, because

Appellant did not pursue a mistaken identity defense, he was present at the

home when the search warrant was executed, and several items were found

in the home linking him to it and the drug sales. The court further found that

testimony relating to the October 17, 2018, controlled drug buy was not the

only evidence presented at trial that identified Appellant and his phone

number, and, therefore, it had not been improperly admitted. The court

stressed that in addition to being identified by a CI, Appellant was observed

by Officer Curtis meeting with the CI at the home on October 17, 2018, and

participating in a drug buy. This activity led officers ultimately to obtain and

execute a search warrant. Furthermore, the parties stipulated that on October

9, 2018, Officer Matthew Maciejewski responded to Dino’s grocery store on

269 Beech Street where he met Appellant who stated he had slipped while

inside the store and injured his leg and rib. At that time, Appellant provided

his cell phone number to the officer as 267-701-1135. Id.

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motion disclosing the prior bad acts and the basis thereof that it sought to

introduce.” Brief for Appellant at 30-32.

In considering this claim, we employ the following standard of review:

In evaluating Rule [600] issues, our standard of review of a trial

court's decision is whether the trial court abused its discretion.

Judicial discretion requires action in conformity with law, upon

facts and circumstances judicially before the court, after hearing

and due consideration. 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. Leaner, 202 A.3d 749, 765-66 (Pa.Super. 2019) (citation

omitted; brackets in original), appeal denied, 2019 WL 2754197 (Pa. 2019).

An appellate court's scope of review is “limited to the evidence on the record

of the Rule 600 evidentiary hearing” and the trial court's findings of fact.

Commonwealth v. Watson, 140 A.3d 696, 698 (Pa.Super. 2016). Appellate

courts must construe the facts in the light most favorable to the prevailing

party. Id.

Pa.R.Crim.P. 600 states that: “[t]rial 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).

Generally, Rule 600 requires the Commonwealth to try a defendant before the

expiration of the “mechanical run date,” i.e., within 365 days of the filing of a

criminal complaint. Id.; Commonwealth v. Ramos, 936 A.2d 1097, 1101

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(Pa.Super. 2007). However, Rule 600 permits certain circumstances to

extend the Commonwealth's deadline. See Pa.R.Crim.P. 600(C).

To determine the final date by which a defendant must be tried, Rule

600 provides that “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.” Pa.R.Crim.P. 600(C)(1). The Commonwealth's failure to satisfy

the prompt-trial requirements of Rule 600(C) constitutes grounds for

dismissal. See Pa.R.Crim.P. 600(D)(1).

Moreover, a defendant is not automatically entitled to dismissal under

Rule 600 if his or her trial commences after the mechanical run date.

Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa.Super. 2013). Dismissal

is an appropriate remedy only if the defendant has not been brought to trial

by the expiration of the adjusted run date. Id. “The adjusted run date is

calculated by adding to the mechanical run date, i.e., the date 365 days from

the complaint, both excludable and excusable delay.” Commonwealth v.

Roles, 116 A.3d 122, 125 (Pa.Super. 2015). Periods of delay are excluded

from the calculation if they are attributable to a defendant or his counsel.

Commonwealth v. Martz, 232 A.3d 801, 810 (Pa.Super. 2020) reargument

dismissed (May 18, 2020). To the contrary, periods of delay are excusable

“where the delay is caused by circumstances beyond the Commonwealth's

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control and despite its due diligence.” Id. Due diligence is a fact-specific

inquiry and must be determined on a case-by-case basis. Commonwealth v.

Selenski, 994 A.2d 1083, 1089 (Pa. 2010). A finding of due diligence “does

not require perfect vigilance and punctilious care, but merely a showing the

Commonwealth has put forth a reasonable effort.” Id.

Prior to determining whether Appellant is entitled to dismissal of the

charges brought against him under Rule 600, we must consider the following

three factors:

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. If the trial

takes place after the adjusted run date, we apply the due diligence

analysis set forth in Rule 600([D]). As we have explained, 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. Armstrong, 74 A.3d 228,236 (Pa.Super. 2013) (citations

and internal quotation marks omitted; brackets in original).

In denying Appellant’s Motion to Dismiss for Violation of Rule 600, the

trial court calculated the time as follows:

[T]he delay in this case was entirely attributable to

[Appellant]. A complaint in this matter was filed on November 2,

2018. Therefore, the mechanical run date was November 2, 2019.

At the first pretrial conference, on March 21, 2019, [Appellant]

requested a continuance. On April 10, 2019, at the next pretrial

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conference, [Appellant] filed a motion for competency evaluation.

He was found competent to stand trial on January 22, 2020. Thus,

the 307 days that [Appellant] was awaiting a competency

evaluation or determination are excludable. Thus, the adjusted

run date was September 5, 2020. Trial commenced on March 2,

2020, well within that time. Insofar as [Appellant] attempted to

tie his Rule 600 argument to illusory discovery issues,7 he cannot

escape the fact that he sought and obtained continuances for

more than nine months while he contested his competency to

stand trial. Therefore, this [c]ourt did not abuse its discretion in

denying his Rule 600 motion.

__

7See, e.g., N.T. Feb 13, 2020 at 17, 30-33.

Trial Court Opinion, filed 9/14/20, at 17.

Our review of the transcript of the hearing on Pretrial Motions, including

Appellant’s Rule 600 Motion, held on February 13, 2020, supports the trial

court’s findings.

A criminal complaint was filed on November 2, 2018; therefore, the

mechanical run date, was November 2, 2019. see Pa.R.Crim.P. 600(A)(2)(a).

Appellant’s trial did not commence until March 2, 2020, 486 days after the

criminal complaint had been filed. However, in attempting to base his Rule

600 claim upon his bald allegations that the Commonwealth failed to provide

him with discovery, Appellant omits to mention that at the pretrial conference

on April 10, 2019, Appellant signed a Rule 600 waiver which stated the

following:

I understand that under Rule 600 of the Pennsylvania Rules

of Criminal Procedure my trial in Montgomery County Court must

begin on or before the 180th day from the filing of the Criminal

Complaint if I am incarcerated. I understand that my trial must

begin on or before the 365th day from filing of the Criminal

Complaint if I am not incarcerated. I further understand that the

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charges against me may be dismissed if my trial does not

commence within the time allowed under Rule 600, and that by

signing this waiver I am giving up my right to be tried within the

time allowed under Rule 600. I am agreeing that my time may

begin after the Rule 600 time limit. I have not been made any

promises, nor have I been forced to sign this waiver. I read and

write the English language, or this waiver has been explained to

me in a language that I understand.

The waiver form Appellant signed further indicated that as he was out

on bail, the 365 day time period applied. As stated above, a court may exclude

“any period of time for which the defendant expressly waives Rule 600” and

any period resulting from a “continuance granted at the request of the

defendant or the defendant's attorney.” Pa.R.Crim.P. 600, cmt. We cannot

ignore the fact that Appellant executed a Rule 600 waiver and made a request

for a competency hearing independent of the Commonwealth's alleged failure

to provide additional discovery. Thus, Appellant expressly waived his rights

under Rule 600 while he sought and obtained numerous continuances during

the course of nine months during which time he contested his competency to

stand trial and sought a competency evaluation.

Moreover,

“The law is clear that the Commonwealth is constitutionally barred

from trying a defendant who is incompetent.” Commonwealth v.

Fisher, 334 Pa.Super. 449, 483 A.2d 537, 539 (1984).

Accordingly, for purposes of Pa.R.Crim.P. Rule 1100 (now Rule

600), the statutory mechanism for enforcing a defendant's speedy

trial rights, this Court has held that a criminal defendant is

unavailable for trial “from the time he requests a continuance for

evaluation of his competency until he is adjudged competent to

stand trial.” Id. This is no less true when applying the

constitutional standard.

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Commonwealth v. Miskovitch, 64 A.3d 672, 681 (Pa.Super. 2013).

In fact, although arguing the Commonwealth filed items relating to

pretrial discovery requests late in support of his theory that it was not ready

for trial before March of 2020, counsel for Appellant admitted Appellant

previously contested his competency to stand trial and stated the following:

MR. KOSCHIER: Your Honor, as it relates to those time periods,

we absolutely admit that [Appellant’s] requested continuances --

he was unavailable for trial during this period and that if Your

Honor holds that to be excludable time for the Commonwealth, we

haven't yet run past that date. The question doesn't end there,

Your Honor. The question is whether or not that is appropriate to

exclude.

N.T., 2/13/20, at 11-12. The following discourse later ensued:

THE COURT: Do you have a case where the defendant is

being alleged to be incompetent, nothing has happened in the

case during the incompetency and then when the defendant was

competent, the Supreme Court of Pennsylvania, as you like to say,

applied the rule that they had in [Commonwealth v.] Mills [162

A.3d 323 (Pa. 2017)] to say that that is a Commonwealth violation

of Rule 600? other cases? Do you have any other cases?

[Defense Counsel]: There has not been a Pennsylvania Supreme

Court case other than Mills on Rule 600.

THE COURT: I'm familiar with Mills. Mills is inapplicable. . . .

Id. at 18.

Accordingly, we conclude that periods of excusable and excludable time

sanctioned the delay between November 2, 2018, and March 2, 2020.

Finding no abuse of discretion, we affirm the trial court’s determination that

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J-S16039-21

Appellant’s Rule 600 rights were not violated, and he is not entitled to relief

on this issue.

Judgment of Sentence Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2021

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