The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
THOMAS REYES
Appellant No. 2794 EDA 2016
Appeal from the Judgment of Sentence August 2, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0001743-2016
BEFORE: BOWES, STABILE, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 21, 2017
Thomas Reyes appeals from the judgment of sentence of two and one-
half to five years incarceration imposed following his convictions for
contraband, possession with intent to deliver, and possession of implements
of escape. We affirm.
On September 21, 2014, Lieutenant Antonio Olivarez, assigned to the
internal security department at Graterford Prison, ordered an investigatory
search of Appellant’s jail cell. At approximately 12:55 p.m., Correctional
Officers Jeffrey McCusker and Shane Cuddeback proceeded to Appellant’s
cell. At this time, the facility was “conducting count,” a procedure where
inmates are required to stand in their cells with the light on. Searches are
conducted during the count process to guard against inmates alerting each
* Retired Senior Judge specially assigned to the Superior Court.
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other. At the time of the search, all inmates on Appellant’s block were
secured in their cells.
Officer Cuddeback made entry and observed Appellant, who was
seated on the bottom bunk, drop an item on the left side of the bed. Officer
Cuddeback, per procedure, placed handcuffs on Appellant in order to search
the cell. Officer Cuddeback recovered a cell phone, which inmates are
prohibited from possessing, in addition to two fingertips from latex gloves.
Witnesses testified that fingertips are commonly severed from a glove in
order to knot and package narcotics. The fingertips were opened and found
to contain material that was subsequently sent for testing, which revealed
that the item was synthetic marijuana, commonly referred to as K2. The
items were recovered in close proximity to Appellant.
Lieutenant Olivarez explained that Appellant was continuously
assigned to that particular cell since July 31, 2009, and last had a cellmate
in February of 2014. Appellant’s possession of contraband prompted
Lieutenant Olivarez to begin monitoring Appellant’s mail over the next year.
The Commonwealth then introduced four letters, which generally made
reference to the confiscation of the K2 and cell phone. These letters were
sent on September 23, 24, and 30 of 2014 and April 9, 2015.
Charges were filed against Appellant on May 5, 2015. Trial
commenced on July 13, 2016, and culminated in a guilty verdict. On August
2, 2016, the trial court imposed the aforementioned sentence. Appellant
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filed a timely notice of appeal, and complied with the trial court’s order to
file a concise statement of matters complained of on appeal. The matter is
ready for review of Appellant’s two issues.
I. Did the trial court erroneously deny Appellant's Rule 600
motion, where the Commonwealth failed to establish that it
affirmatively acted with due diligence on the one occasion where
it later argued for excusable delay?
II. Did the trial court erroneously deny Appellant's motion in
limine to exclude certain letters purportedly written by Appellant,
where the Commonwealth's witness never saw Appellant write
these letters or any other document and where that witness was
not qualified to testify as an expert?
Appellant’s brief at 5.
Appellant’s first issue concerns an alleged failure of the Commonwealth
to timely prosecute his case pursuant to Pennsylvania Rule of Criminal
Procedure 600. Our standard and scope of review in evaluating Rule 600
issues is well-settled. We determine
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.
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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Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013) (citing
Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa.Super. 2007) (en
banc) (alterations in original due to rule renumbering)). “The proper
application of discretion requires adherence to the law, and we exercise
plenary review of legal questions.” Commonwealth v. Baird, 975 A.2d
1113, 1118 (Pa. 2009) (citing Commonwealth v. Chamberlain, 731 A.2d
593, 595 (Pa. 1999)). Where the Commonwealth’s due diligence is at issue,
we apply the following principle:
As has been oft stated, “[d]ue diligence is fact-specific, to be
determined case-by-case; it does not require perfect vigilance
and punctilious care, but merely a showing the Commonwealth
has put forth a reasonable effort.”
Commonwealth v. Bradford, 46 A.3d 693, 701–02 (Pa. 2012) (quoting
Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)).
Rule 600, as rescinded and adopted July 1, 2013, requires the
Commonwealth to try a defendant within one year of filing the complaint. It
provides:
(A) Commencement of Trial; Time for Trial
(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.
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Pa.R.Crim.P. 600. Since the complaint was filed May 5, 2015, the
Commonwealth was required to try Appellant on or before May 4, 2016.1
Trial commenced on July 13, 2016, which exceeded the applicable 365-day
period by seventy days. However, the mere fact that more than 365 days
had elapsed does not automatically entitle Appellant to discharge. The Rule
sets forth a particular method for calculating “the time within which trial
must commence:”
(C) Computation of Time
(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.
Pa.R.Crim.P. 600. “[T]he inquiry for a judge in determining whether there is
a violation of the time periods in paragraph (A) is whether the delay is
caused solely by the Commonwealth when the Commonwealth has failed to
exercise due diligence.” Comment, Pa.R.Crim.P. 600.
Appellant’s Rule 600 argument challenges the court’s finding that the
thirty-four-day period spanning July 24, 2015, to August 27, 2015, a delay
caused by a rescheduling of Appellant’s preliminary hearing, was not
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1
2016 was a leap year.
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included in the 365-day calculation. At the Rule 600 hearing, held on June
3, 2016, the Commonwealth called Tanya Scarafone, the clerk for
Magisterial District Judge Augustine. She explained that Appellant’s
preliminary hearing was scheduled for July 24, 2015; however, the district
judge was out of the office that day. As a result, the hearing was
rescheduled for August 27, 2015. Appellant did not dispute that the
Commonwealth was prepared to proceed on the July date.
We agree that this period of delay should be excluded in the Rule
600(C)(1) computation. Appellant asserts that this time period must be
included as the Commonwealth failed to exercise due diligence by failing to
find another magistrate who could preside over the case. In support,
Appellant notes that Ms. Scarafone testified that obtaining coverage from
other magistrates was possible. Therefore, Appellant argues that since
another courtroom could have accommodated the preliminary hearing, due
diligence required the Commonwealth to seek an alternative courtroom.
We disagree. Appellant’s argument is simply another way of saying
that the Commonwealth’s due diligence obligation encompasses every
theoretical action that could prevent a delay. We have long stated that due
diligence “does not require perfect vigilance and punctilious care, but merely
a showing the Commonwealth has put forth a reasonable effort.” Bradford,
supra at 702 (citation omitted). As the Commonwealth observes,
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“affirmative action is not synonymous with extraordinary measures.”
Commonwealth’s brief at 11.
In this respect, we note that in Commonwealth v. Anderson, 959
A.2d 1248, 1250 (Pa.Super. 2008), we observed “The extent to which the
Commonwealth must look for other available courtrooms is not clear.”
However, in Anderson, the Rule 600 run date was set to expire on
December 9, 2005, and the Commonwealth scheduled the case for trial on
December 1, 2005. At that juncture, a number of postponements occurred,
some of which were caused by the courtroom’s unavailability. We ultimately
concluded that Rule 600 was not violated.
Anderson dealt with a quite different scenario than the situation
herein, since therein, the Commonwealth was running up against the Rule
600 limit. In contrast, Appellant’s case was nowhere near the Rule 600 time
limit as of July 24. Whatever the extent of the Commonwealth’s due
diligence obligations to seek another courtroom when a Rule 600 deadline is
looming, we fail to see why due diligence requires the prosecution to seek
another magistrate so early in the process. Hence, we agree that the thirty-
four-day period of time is not included in the 365-day calculation, due to the
magistrate’s unavailability. Therefore, the Commonwealth did not cause the
delay and the trial court’s determination was not erroneous. See
Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (“[G]iven this
Court's holding that periods of judicial delay are excludible from calculations
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under the rule, courts of original jurisdiction must apply judgment in
distinguishing between delay attributable to the court and that which should
be allocated to a party.”) (citation omitted).
Having established that this time period is not included, we note that
the Rule 600 hearing occurred on June 3, 2016. As of that date, 395 days
had elapsed, i.e., thirty days over the limit. Since we have determined that
thirty-four days are not included in the calculation, four days remained in
which to commence trial. The Commonwealth asserted that the time
required for disposing of the pre-trial motions was not included.
In Commonwealth v. Hill, 736 A.2d 578 (Pa. 1999), our Supreme Court
established that the filing of a pre-trial motion does not automatically render
a defendant unavailable for trial for purposes of the Rule.
However, Hill established that delay in the commencement of a trial caused
by the filing of pre-trial motions is not chargeable to the Commonwealth if
the Commonwealth exercised due diligence in responding to the motion.
The Commonwealth did so here.
Finally, we note that the Commonwealth represented that it
commenced trial on the earliest possible date following the Rule 600
hearing. Commonwealth’s brief at 11. The Rule 600 hearing transcript
indicates that the parties discussed setting the trial as soon as possible.
Appellant makes no challenge to any time period other than the thirty-four
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days, and we therefore find that Appellant is not entitled to relief on his Rule
600 claim.
We now address Appellant’s second claim, which assails the trial
court’s denial of his pre-trial motion seeking exclusion of the inmate letters.
We apply the following standard of review.
We review a trial court's decision to grant a motion in limine for
an abuse of discretion. Commonwealth v. Belani, 101 A.3d
1156, 1160 (Pa.Super. 2014). “‘A trial court has broad discretion
to determine whether evidence is admissible,’ and [its] ruling
regarding the admission of evidence ‘will not be disturbed on
appeal unless that ruling reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support to be
clearly erroneous.’” Id. (quoting Commonwealth v. Huggins,
68 A.3d 962, 966 (Pa.Super. 2013)).
Commonwealth v. Ribot, 169 A.3d 64, 67 (Pa.Super. 2017). Pennsylvania
Rule of Evidence 901 provides, in pertinent part, as follows:
Rule 901. Requirement of authentication or identification
(a) General provision. The requirement of authentication or
identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in
question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or
identification conforming with the requirements of this rule:
...
(4) Distinctive characteristics and the like. Appearance, contents,
substance, internal patterns, or other distinctive characteristics,
taken in conjunction with circumstances.
Pa.R.E. 901.
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The trial court held a pre-trial hearing on this matter, wherein
Lieutenant Olivarez testified that, as a result of this incident, he began
monitoring Appellant’s mail. In authenticating that the letters were penned
by Appellant, he explained that an inmate places mail in a designated
mailbag, which is then secured. In addition, the Lieutenant stated that
Appellant always used the same nickname as a signature in his letters. The
envelope for these letters bore Appellant’s inmate number and the address
of the recipient. Three of the letters introduced at trial were addressed to
Roberta Calderon, Appellant’s girlfriend. Finally, to confirm that the letters
were in fact written by Appellant, the Lieutenant examined other materials
signed by Appellant, such as signature sheets at meetings in the jail, and
testified that the writing matched. However, Lieutenant Olivarez confirmed
that he did not witness Appellant actually signing any document.
We extensively examined the issue of authentication of letters in
Commonwealth v. Brooks, 508 A.2d 316 (Pa.Super. 1986), which
explained the basic principles.
Generally, two requirements must be satisfied for a document to
be admissible: it must be authenticated and it must be relevant.
In other words, a proponent must show that the document is
what it purports to be and that it relates to an issue or issues in
the truth determining process. Specific evidentiary rules have
developed for authenticating writings such as letters. These rules
are necessary because of the problems involved in ascertaining
the authorship of documents. As one commentator notes,
“[m]ost documents bear a signature, or otherwise purport on
their face to be of a certain person's authorship.” 7
Wigmore, Evidence § 2130 at 709 (Chadbourn rev. 1978). It
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would be too easy to assume that a letter bearing the signature
of “X” was authored by “X”. In order that such an unsupported
assumption not be the foundation of authentication, the
requirement for admission of a document such as a letter is a
prima facie case that the document is what it purports to be. . . .
A document may be authenticated by direct proof, such as the
testimony of a witness who saw the author sign the document,
acknowledgment of execution by the signer, admission
of authenticity by an adverse party, or proof that the document
or its signature is in the purported author's handwriting . . . .
A document may also be authenticated by circumstantial
evidence, a practice which has been uniformly recognized as
permissible.
Id. at 318 (footnotes and some citations omitted).
We find that circumstantial evidence provided a sufficient basis to
authenticate the letters. Significantly, the letters were introduced together
with their envelopes, which included Appellant’s designated inmate number.
Furthermore, the letters included details of the crime in question within days
of the incident. In Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008),
our Supreme Court reviewed an ineffectiveness claim challenging appellate
counsel’s failure to pursue a preserved objection regarding the introduction
of inmate mail. As herein, Collins involved letters written by the defendant
while he was in jail, imploring a witness not to testify against the defendant.
The Court explained there was no arguable merit to the ineffectiveness
claim.
[T]he Commonwealth counterargues that the letters were
authenticated “by their distinctive characteristics, taken in
conjunction with the circumstances of the case, as having been
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written by [appellant].” Commonwealth's Brief at 64–65. In
particular, the Commonwealth notes that the letters: were
mailed from the prison in which appellant was incarcerated;
contained appellant's unique seven-digit prison identification
number; urged a course of conduct that would benefit appellant
and only appellant; and identified appellant's trial counsel by
name.
....
We agree with the Commonwealth that the trial court's decision
to admit the two letters was well within its discretion. The
circumstances cited by the PCRA court and the Commonwealth
are more than sufficient, when considered in their totality, to
authenticate the letters. We further note that the first letter
mentioned trial counsel's name in the context of the defense's
trial strategy of shifting suspicion for the murder away from
appellant and toward Cofer; that the second letter referred to
the first one; and that the letters were dated within several
weeks of Cofer's July 14, 1992 police statement, which the first
letter referenced. Because appellant's underlying claim of trial
court error lacks arguable merit, his derivative ineffectiveness
claim did not warrant an evidentiary hearing.
Id. at 266 (citations to transcript omitted). Therefore, in Collins the letters
were admitted without any reference to opinions regarding the handwriting.
We find that the court did not err in admitting the evidence. As in
Collins, these letters contained Appellant’s unique prisoner number,
referenced specific details of the crimes, specifically referred to the seizure
of K2, and three of the letters were sent less than a week after the incident
in question. These circumstances demonstrate that the trial court did not
err in permitting the introduction of the evidence, and we affirm on that
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basis as it is supported by the record.2 See Commonwealth v. Moser, 999
A.2d 602, 606, n. 5 (Pa.Super. 2010).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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2
We note that the Commonwealth responded to Appellant’s authentication
claim on the basis that Lieutenant Olivarez could offer lay opinion testimony
that Appellant wrote the letters. Assuming arguendo that Appellant
preserved a challenge to the introduction of statements made by Lieutenant
Olivarez as to authorship based on the handwriting, as opposed to the
introduction of the evidence itself, we deem any such error harmless as the
evidence was properly authenticated and introduced.
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