Commonwealth v. Colon

• Decision Date: 07 March 2014
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jose A. COLON, Appellant.

87 A.3d 352

2014 PA Super 45

COMMONWEALTH of Pennsylvania, Appellee

v.Jose A. COLON, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 13, 2014.

Filed March 7, 2014.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: ALLEN, STABILE, and STRASSBURGER ^*, JJ.

OPINION BY ALLEN, J.:

Jose A. Colon (“Appellant”) appeals from the judgment of sentence imposed after the trial court denied his Pa.R.Crim.P. 600 motion to dismiss, and convicted him of forgery, unsworn falsification to authorities, identity theft, tampering with records, and tampering with public records.¹ We reverse and vacate the judgment of sentence.

The trial court summarized the pertinent facts and procedural history as follows:

Pennsylvania State Trooper John Scott testified that in September of 2009 he was part of a unit that investigated alleged fraudulent identities procured through the Pennsylvania Department of Transportation (hereinafter PennDot).

In September of 2009, and based upon information received from PennDot, Trooper Scott was assigned to investigate whether Appellant had procured a fraudulent driver's license. As part of his investigation, Trooper Scott accessed the Pennsylvania Justice Network (hereinafter JNET) to view the PennDot records of Appellant and another individual named Richard Luis. The PennDot records of Appellant showed that he received an identification card on September 18, 2003 at the Arch Street PennDot location. Appellant's record was updated to a driver's license at the Columbus Boulevard PennDot location on April 23, 2005.

The PennDot record for Richard Luis depicted two images, the first one being the driver's license for an individual which was taken at the Arch Street PennDot location on January 31, 2004. The second image was of an individual which was taken at the Olney PennDot location on February 5, 2008. Based upon his observation of the photographs depicted on the licenses, Trooper Scott determined that the second image for Richard Luis, while having the correct biological information, depicted Appellant and not Mr. Luis.

* * *

Based on Trooper Scott's observation of the two driver's licenses, a criminal complaint was filed against Appellant on October 19, 2009. Due to Appellant's incarceration [at the Houtzdale State Correctional Institution] on other charges, Appellant's preliminary arraignment was not held until July 20, 2011. Thereafter, Appellant requested five continuances between August 4, 2011 and May 4, 2012. On June 21, 2012, Appellant was held for court on the above mentioned charges and his case was transferred to the Philadelphia Court of Common Pleas where his formal arraignment was held on June 22, 2012.

On July 26, 2012, Appellant decided to change attorneys and the Defender Association of Philadelphia was appointed on August 9, 2012 at which point all discovery was passed.

Appellant rejected a Commonwealth offer on August 29, 2012 and the case was listed for trial. The first objection lodged concerning Appellant's speedy trial rights was filed on October 12, 2012 in the form of a motion to dismiss. [The trial court conducted a hearing on October 15, 2012] and [denied the motion that same day]. Appellant was subsequently found guilty of all charges at the conclusion of a waiver trial held on the same day. On November 16, 2012, Appellant was sentenced to 3–6 months of confinement followed by three years of probation on the forgery charge. Appellant was given no further penalty on all the remaining charges. Appellant was granted a surrender date of November 20, 2012.

Appellant filed an appeal of [the trial court's] decision to the Superior Court of Pennsylvania on December 11, 2012. [The trial court] ordered Appellant to file a concise statement of errors complained of on appeal ... pursuant to Pa.R.A.P. 1925(b) on December 17, 2012. On that same day, [the trial court] ordered the notes of testimony for the bench trial held on October 15, 2012 and the sentencing hearing held on November 16, 2012. [The trial court] received the transcription of the bench trial notes on January 31, 2012. The sentencing notes were not received by [the trial court] until February 28, 2012 and not posted on the First Judicial District database until March 18, 2013.

On January 11, 2013, Appellant filed both a motion nunc pro tunc for an extension of time as well as a petition to accept Appellant's Statement nunc pro tunc, which were both granted by [the trial] court on January 16, 2013. [The trial court filed a Pa.R.A.P. 1925(a) opinion on February 11, 2013 and a supplemental opinion on March 28, 2013].

Trial Court Opinion, 3/28/13, at 1–3 (citations to notes of testimony omitted).

Appellant raises the following issues for our review:

1. Did not the [trial] court err in denying [Appellant's] motion to dismiss pursuant to Pa.R.Crim.P. 600, in that more than 365 days of non-excludable/non-extendable time passed before [Appellant] was brought to trial, and the Commonwealth was not diligent in bringing [Appellant] to trial?

2. Did not the [trial] court err in permitting Trooper Scott to testify to hearsay matters for which there was no hearsay exception?

Appellant's Brief at 4.

Appellant challenges the trial court's denial of his motion to dismiss the charges against him. Appellant's Brief at 20–24. Specifically, Appellant argues that the Commonwealth violated Pa.R.Crim.P. 600 by failing to bring him to trial within 365 days after the filing of the criminal complaint, and contravened his state and federal due process rights under the Fifth and Sixth Amendments of the United States Constitution, as well as Article I, Section 9 of the Pennsylvania Constitution. Id.

Pennsylvania Rule of Criminal Procedure 600 was adopted “to protect defendant's constitutional rights to a speedy trial under the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, in response to the United States Supreme Court's decision in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)” in which the Court adopted a four-part balancing test to determine whether a defendant's speedy trial rights had been violated. Commonwealth v. Bradford, 616 Pa. 122, 46 A.3d 693, 700–701 (2012) (citations and internal quotations omitted).

In Barker, the United States Supreme Court identified the following four factors to be considered in determining whether an unconstitutional speedy trial violation had occurred: (1) the length of delay; (2) the reason for delay; (3) the defendant's assertion of his rights; and (4) the prejudice to the defendant. Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984) Although finding “no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months,” the United States Supreme Court held that “the individual states are free to prescribe a reasonable period consistent with constitutional standards.” Bradford, 46 A.3d at 701,quoting Barker, supra.

In response to Barker, and because of the “inherent vagueness” resulting from the Barker balancing test, the Pennsylvania Supreme Court adopted Pa.R.Crim.P. Rule 1100, later renumbered Rule 600, “to establish a definitive period of time for a speedy trial violation.” Bradford, 46 A.3d at 701quoting Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174, 176 (1976) (“the balancing test announced in Barker provides only the minimum standards guaranteed by the Sixth and Fourteenth Amendments, and ... such minimum standards are not adequate to provide Pennsylvania criminal defendants the protection guaranteed by the constitution of this Commonwealth”).

“[A] speedy trial analysis [thus] mandates a two-step inquiry: (1) whether the delay violated Pennsylvania Rule of Criminal Procedure 1100 [now Rule 600]; and, if not, then (2) whether the delay violated the defendant's right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 9 of the Pennsylvania Constitution.” Commonwealth v. DeBlase, 542 Pa. 22, 665 A.2d 427, 431 (1995) (emphasis added) citing Jones v. Commonwealth, 495 Pa. 490, 499, 434 A.2d 1197, 1201 (1981) (although Rule 600 (formerly Rule 1100) was designed to implement the constitutional rights of an accused to a speedy trial, the constitutional guarantees to a speedy trial continue to provide a separate basis for asserting a claim of undue delay in appropriate cases, and in analyzing such constitutional claims, we apply the four-part Barker test); Commonwealth v. Preston, 904 A.2d 1, 10 (Pa.Super.2006) (while Rule 600 was designed to implement the speedy trial rights provided by the federal and state constitutions, the constitutional provisions themselves continue to provide a separate and broader basis for asserting a claim of unduedelay in appropriate cases under the balancing test set forth in Barker v. Wingo ).²

Pursuant to the two-step analysis enunciated in DeBlase, supra, we first consider whether the delay violated Pa.R.Crim.P. 600, and if not, we may proceed to the four-part constitutional analysis set forth in Barker.

Rule 600 (formerly Rule 1100) entitled “Prompt Trial” was adopted by our Supreme Court “to prevent unnecessary prosecutorial delay in bringing a defendant to trial.” Commonwealth v. Brock, 619 Pa. 278, 61 A.3d 1015, 1021 (2013). Rule 600 provides in pertinent part:

(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 for commencement of trial, there shall be excluded therefrom:

(1) 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 or her...