Com. v. Martz
| Decision Date | 06 June 2007 |
| Docket Number | No. 564 MDA 2006.,564 MDA 2006. |
| Citation | 926 A.2d 514 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Dereck MARTZ, Appellant. |
| Court | Pennsylvania Superior Court |
Leslie W. Bryden, Bloomsburg, for appellant.
Robert W. Buehner, Jr., Danville, for appellee.
¶ 1 Appellant Derek Martz appeals the judgment of sentence for corruption of minors and indecent assault on grounds that: 1) the trial court erred in denying his motion to dismiss pursuant to Pa. R.Crim.P. 600; 2) the trial court erred in determining that he is a sexually violent predator ("SVP"); 3) the evidence is insufficient to sustain his conviction; and 4) the convictions should merge for sentencing purposes. We affirm in part and vacate in part.
¶ 2 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. Frye, 909 A.2d 853, 857 (Pa.Super.2006). Furthermore:
The proper scope of review [ ... ] is limited to the evidence of 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. 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.
Commonwealth v. Hunt, 858 A.2d 1234, 1238-39 (2004) (en banc).
¶ 3 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. Commonwealth v. Jones, 886 A.2d 689, 699 (Pa.Super.2005).
¶ 4 Rule 600 sets forth the speedy trial requirements and provides in pertinent part:
Rule 600. Prompt Trial
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(A) (3) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.
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(C) In determining the period of commencement of trial, there shall be excluded therefrom:
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(3) such period of delay at any stage of the proceedings as results from: [ ... ](b) any continuance granted at the request of the defendant or the defendant's attorney.
(G) For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant's attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain. [ ... ].
¶ 5 In the context of Rule 600, there is a distinction between "excludable time" and "excusable delay." Unlike "excludable time," which is defined in Rule 600(C), supra, in pertinent part, "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, 858 A.2d at 1241.
¶ 6 If the Commonwealth attempts to bring a defendant to trial beyond the 365-day period prescribed by Rule 600, and the defendant files a Rule 600 motion to dismiss, the court must assess whether there is excludable time and/or excusable delay. Frye, 909 A.2d at 857. Even where a violation of Rule 600 has occurred, we recognize:
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.
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 reasonable effort has been put forth.
Reasonable effort includes such actions as the Commonwealth listing the case for trial prior to the run date to ensure that defendant was brought to trial within the time prescribed by Rule 600.
Id. at 858 (quoting Hunt, 858 A.2d at 1241-42 (emphasis in original)).
¶ 7 Herein, a complaint was filed against Appellant on October 10, 2003. N.T. Rule 600 Hearing, 5/5/05, at 2. The mechanical run date for Appellant's trial under Rule 600(A)(3) was October 10, 2004. However, Appellant's case was not heard by a jury until June 22, 2005. See Court of Common Pleas of Montour County, Criminal Docket, at 1; Trial court opinion, 7/20/06, at 2 (unnumbered). The passage of 19 months from the date the complaint was filed exceeds by 7 months the time for bringing Appellant to trial under Rule 600. Unless 7 months are excludable/excusable from the run date, or it is proven by the Commonwealth that it exercised due diligence in bringing Appellant to trial beyond the 365-day run date, a violation of Rule 600 would be found and necessitate a dismissal of the charges. See Appellant's brief, at 23.
¶ 8 The record discloses that a hearing was conducted on May 5, 2005, to assess the merits of Appellant's Rule 600 motion. At the direction of the Commonwealth, the stenographer typed all of the court appearances related to this case, marked the document Commonwealth Exhibit No. 1, and introduced the exhibit into evidence, which recites a chronology of events relevant to the continuances granted herein; to-wit:
February 9, 2004
[Assistant District Attorney]: [ ... ] [Appellant's counsel] fil[ed] a motion for continuance.
THE COURT: We will grant the continuance and will enter [Appellant's counsel's] appearance[.]
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April 12, 2004
[Assistant District Attorney]: [Commonwealth v. Appellant] is continued at the request of [Appellant's counsel]. [Counsel] represents [Appellant]. We still have not received a transcript of the preliminary hearing, which [Appellant's counsel] requested, and filed a motion to have a Court Stenographer there. So, that is why that is continued.
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June 15, 2004, Commonwealth vs. [Appellant.] [Assistant District Attorney]: [Appellant], item three page one.
[Appellant's counsel]: Both parties, Commonwealth and the [Appellant], are waiting for discovery and transcript of a preliminary hearing. So, I don't have a problem with it being continued in this case.
THE COURT: What are you waiting on?
[Appellant's counsel]: I requested discovery from the District Attorney's Office. Myself and the District Attorney is [sic] waiting for a copy of the transcript from the preliminary hearing which has not been provided, despite repeated attempts to get that transcript.
THE COURT: [ ... ] Okay, that one will be continued a term then.
[Assistant District Attorney]: Yes, until August, your Honor.
THE COURT: We will grant the continuance.
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October 12, 2004, [Commonwealth vs. Appellant.]
[Assistant District Attorney]: In this particular matter, we are still waiting for [Appellant's counsel] to produce the transcript of the trial of the preliminary hearing in this matter, which [ ... ] is in his control a little bit, although it is a Court Stenographer in that case that has not been forthcoming to him as well. And, we need that to proceed to motions. [Appellant's counsel] ordered the transcript. This is on the pre-trial conference list for today. [Appellant's counsel] and I talked about this [and] we would request, if your Honor would consider it, to direct an order to the Court Stenographer to forthwith get the transcript. It has been quite awhile. I have no control over that.
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[Appellant's counsel]: She hasn't sent me a bill. We haven't gotten a bill, depending on how many pages there are. February 4th, 2003, I requested it. [ ... ].
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December 6, 2004, Commonwealth vs. [Appellant.]
[Assistant District Attorney]: We were [here] in October [of 2004] with [Appellant's counsel ... ]. And, at that time the Court issued a directive to the Court Stenographer at the preliminary hearing to prepare and disseminate copies of the transcript within 14 days of October 12th, 2004. That has not occurred. [ ... ] I talked to [Appellant's counsel]. He sent notices to her. She was aware. And, they had a conversation. I do have, and enter on record a letter from [Appellant's counsel] which came on Friday. He says in the letter, I will read it into the record:
And, I told him I would not object to that matter. So he is requesting a continuance.
THE COURT: We will grant a continuance for another term in the above action. * * * *
February 7, 2005, Commonwealth vs. [Appellant.]
[Assistant District Attorney]: [Appellant's counsel] filed a motion to withdraw as counsel. Page eight item one.
[Appellant's counsel]: Your Honor, I filed a petition for withdrawal. And, the bases are contained in the petition. This was an unusual...
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