Commonwealth v. Dixon

• Decision Date: 07 June 2016
• Docket Number: No. 211 EDA 2015,211 EDA 2015
• Citation: 2016 PA Super 116,140 A.3d 718
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joey I. DIXON, Appellant.
• Court: Pennsylvania Superior Court

140 A.3d 718

2016 PA Super 116

COMMONWEALTH of Pennsylvania, Appellee

v.Joey I. DIXON, Appellant.

No. 211 EDA 2015

Superior Court of Pennsylvania.

Argued March 9, 2016.

Filed June 7, 2016.

Aaron C. Finestone, Philadelphia, for appellant.

Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.^*

OPINION BY OTT

, J.:

Joey I. Dixon appeals from the judgment of sentence imposed August 5, 2014, in the Philadelphia County Court of Common Pleas. The trial court sentenced Dixon to an aggregate term of 20 to 40 years' imprisonment, plus five years' consecutive probation, following his conviction of robbery, aggravated assault, possessing an instrument of crime (“PIC”), possession of a firearm without a license, and possession of a firearm by a person prohibited.¹ On appeal, Dixon challenges only the trial court's denial of his pretrial motion to dismiss the charges based on a violation of Pennsylvania Rule of Criminal Procedure 600

. For the reasons that follow, we affirm.

The facts underlying Dixon's arrest and conviction are aptly summarized by the trial court as follows:

On November 19, 2010, Hasan Sampson agreed to meet [Dixon] at 5266 Burton Street, in the City and County of Philadelphia. Mr. Sampson drove to the location alone and double parked in the middle of the street to speak with [Dixon]. During the conversation, [Dixon] told Mr. Sampson to get out of the car, but Mr. Sampson was afraid and refused, [and] he then subsequently drove away. [Dixon] then called Mr. Sampson and asked him to return to Burton Street and Mr. Sampson complied. When Mr. Sampson returned, [Dixon] convinced him to get out of the car by stating “you my folks. Ain't nothing gonna happen.” When Mr. Sampson stepped out of the car[, Dixon] grabbed him and attempted to take two phones and money out of Mr. Sampson's pocket. During the altercation, [Dixon] stated “I'm telling you, I'm gonna pop you.” [Dixon] then shot Mr. Sampson in the leg. As Mr. Sampson ran to his car another shot was fired, but missed Mr. Sampson. Mr. Sampson was then taken to the hospital by his family members.

After the shooting, the police received a 911 call reporting gunshots on [the] 5200 block of Burton Street. According to Officer Joseph Weihe, after arriving to the scene and doing a search of the area, the officers found blood on the ground that continued in a trail that led across the street. The officers then notified their superior and secured the scene to preserve any evidence. Around this time a call came into 911 from Aria Frankford Hospital reporting a patient with a gunshot wound

. Officer Joseph Tigue responded to the hospital and took a statement from Mr. Sampson. Detective Christopher Casee was assigned to the case and responded to the scene on the night of the shooting. After leaving the scene, the detective went to the hospital to speak with Mr. Sampson. Mr. Sampson stated that he could not speak to the detective at that time so Detective Casee left the hospital. Mr. Sampson arrived at Northeast Detectives on November 22, 2010 to give a statement to Detective Casee. In this statement, Mr. Sampson identified [Dixon] as the person who shot him. During

their investigation, the Philadelphia police recovered a fired .9–millimeter shell casing from the 5200 Burton Street area the following day. Based on the statement given by Mr. Sampson, police obtained and executed search warrants for locations where [Dixon] was thought to be. [Dixon] was subsequently arrested at one of these locations while the police were serving the search warrant.

Trial Court Opinion, 8/3/2015, at 2–3 (record citations omitted).

On November 23, 2010, Dixon was charged with attempted murder, robbery, theft, aggravated assault, simple assault, recklessly endangering another person (“REAP”), PIC, possession of a firearm without a license, and possession of a firearm by a person prohibited.² Dixon's preliminary hearing was continued twice when the victim, Sampson, failed to appear for court. Thereafter, on February 1, 2011, Sampson was in the courthouse, but left before the hearing began.³ The Commonwealth requested another continuance, and later that month, withdrew all of the charges (“assault charges”), except for the charge of possession of a firearm by a person prohibited (“Section 6105 charge”), which could be tried without Sampson.⁴ Shortly thereafter, the Commonwealth re-filed the assault charges, but withdrew them again on March 30, 2011. The case then proceeded on the Section 6105 charge only.

In the summer of 2012, ADA Franz was transferred to another office, and Assistant District Attorney Alisa Shver (“ADA Shver”) was re-assigned his cases. See N.T., 3/5/2014, at 40, 42. On September 10, 2012, when the trial court was holding a scheduling conference for the Section 6105 charge, Sampson walked into the courtroom. After speaking with Sampson, ADA Shver re-filed the assault charges on December 20, 2012, but “because of the nature of [her] discussion ... with Mr. Sampson[,]” she “moved the case into the Grand Jury proceeding.” N.T., 3/5/2014, at 62. On January 25, 2013, a grand jury indicted Dixon on charges of attempted murder, aggravated assault, robbery, PIC, possession of a firearm without a license, and possession of a firearm by a person prohibited. Thereafter, Dixon moved to dismiss the charges based on a Rule 600

violation.⁵ The trial court held a hearing on March 5, 2014, and on March 31, 2014, denied Dixon's Rule 600 motion.

The case proceeded to a jury trial on June 2, 2014. At the beginning of trial, the Commonwealth nol-prossed the attempted murder charge, and the court bifurcated the Section 6105 charge. On June 5, 2014, the jury returned a verdict of guilty on the charges of robbery, aggravated assault, PIC, and possession of a firearm without a license. The trial court found Dixon guilty of the Section 6105 charge.

On August 6, 2014, Dixon was sentenced to consecutive terms of 10 to 20 years' imprisonment for robbery, 10 to 20 years' imprisonment for aggravated assault, and five years' probation for the Section 6105 charge. No further punishment was imposed on the remaining charges. Dixon filed a post-sentence motion on August 8, 2014, and an amended post-sentence motion on November 21, 2014. The trial court conducted a hearing, and on January 8, 2015, denied Dixon's motions. This timely appeal followed.⁶

Dixon frames his sole issue on appeal as follows:

Did the Lower Court err in denying the motion to dismiss under Rule 600

... where the Commonwealth failed to exercise due diligence in producing the complainant to testify?

Dixon's Brief at 4.

Pennsylvania Rule of Criminal Procedure 600

was designed “to protect a defendant's speedy trial rights, as well as society's right to effective prosecution of criminal cases.” Commonwealth v. Thompson, 136 A.3d 178, 182 (Pa.Super.2016) (quotation omitted). The Rule mandates, inter alia, that a defendant must be tried on criminal charges no later than 365 days after the criminal complaint is filed. Pa.R.Crim.P. 600(A)(1, 3).⁷

This straightforward calculation is known as the mechanical run date. See, e.g., [ Commonwealth v.] Ramos, 936 A.2d [1097] 1102

[ (Pa.Super.2007) ]. However, those periods of delay caused by a defendant are excluded from the computation of the length of time of any pretrial incarceration. Pa.R.Crim.P. 600(C). Following these exclusions, if any, we arrive at an adjusted run date by extending the mechanical run date to account for these exclusions. See, e.g.,

Ramos, 936 A.2d at 1102. Any other delay that occurs, despite the Commonwealth's due diligence, is deemed excusable and results in further adjustments to the effective run date. Pa.R.Crim.P. 600(G) ; see also

Ramos, 936 A.2d at 1102 (explaining that “[e]xcusable delay is a legal construct that takes into account delays which occur as a result of circumstances beyond the Commonwealth's control and despite its due diligence”) (internal punctuation and citation omitted).

Thompson, supra, 136 A.3d 178, 182

(emphasis in original).

After the expiration of the 365–day period, but before trial, a defendant may move for dismissal of the charges with prejudice. See Pa.R.Crim.P. 600(G)

. Thereafter, the trial court is required to hold a hearing to determine whether the Commonwealth “exercised due diligence and [whether] the circumstances occasioning the postponement were beyond the control of the Commonwealth,” in which case, the motion should be denied. Id. When considering whether the Commonwealth acted with due diligence, we note:

“[T]he Commonwealth must do everything reasonable within its power to guarantee that a trial begins on time,” and the Commonwealth has the burden of demonstrating by a preponderance of the evidence that it exercised due diligence. “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. Colon, 87 A.3d 352, 359 (Pa.Super.2014)

(internal citations omitted).

In cases such as the one before us, where an initial complaint was withdrawn or dismissed and the Commonwealth has re-filed charges, we must also bear in mind the following:

If, for example, the Commonwealth withdraws the first complaint in an attempt to avoid an imminent Rule 600

violation and then re-files the charges in hopes of circumventing that rule, then the Rule 600 time for the second complaint will be calculated from the filing of the first complaint.

However, if the Commonwealth is diligent in prosecuting a complaint, and if the complaint is withdrawn or dismissed because of factors beyond the Commonwealth's control, then the Commonwealth, upon re-filing the charges in a second complaint, is entitled to have the time under Rule 600 run from the date of that second filing. Accordingly, in cases of subsequent complaints, the law...