Commonwealth v. Miskovitch

• Decision Date: 29 April 2013
• Citation: 2013 PA Super 42,64 A.3d 672
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Eric Michael MISKOVITCH, Appellant.
• Court: Pennsylvania Superior Court

64 A.3d 672

2013 PA Super 42

COMMONWEALTH of Pennsylvania, Appellee

v.Eric Michael MISKOVITCH, Appellant.

Superior Court of Pennsylvania.

Argued May 16, 2012.

Filed March 1, 2013.

Reargument Denied April 29, 2013.

Chris R. Eyster, Pittsburgh, for appellant.

Michael W. Sreily, Deputy District Attorney and Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: MUSMANNO, J., BENDER, J., and STRASSBURGER, J.^*

OPINION BY BENDER, J.

Appellant, Eric Michael Miskovitch, appeals from the judgment of sentence of December 14, 2009. Appellant presents several claims, alleging violations of his speedy trial, due process, and double jeopardy rights. Appellant also claims that he was tried in an improper venue. After careful review, we affirm.

The trial court summarized the facts of the case as follows:

The facts of that case were that on August 1, 2004, Miskovitch went into a McDonald's Restaurant in Leechburg, Pennsylvania (Westmoreland County), placed an order and then demanded that the cashier, Ashley Israel [ (Israel) ], turn over all of the money to him that was in the register. Miskovitch lifted up his shirt and showed Israel that he had a gun and she became nervous and called over her manager, Sue Miller [ (Miller) ]. Miskovitch also showed Miller the gun and Miller then gave him the money that was in that register. Miskovitch then said he knew that McDonald's made more money than that and demanded the money from the other register. That register was empty and then Miskovitch pulled out his gun, pointed it at Miller, and took her to the office and demanded that she open the safe. He told her she had fifty seconds to do so and then began counting backwards. Miskovitch's counting out loud made her nervous and she could not open the safe. When Miskovitch realized that the safe was not going to be opened, he ran from the restaurant, got in his car and fled from the scene.

Gregory Rupp [ (Rupp) ], who had gone to that McDonald's with his wife and daughter, witnessed the robbery and proceeded to chase Miskovitch once he ran out of the restaurant. He saw him go outside, get into his car which he had stolen the day before, then followed him while dialing 911 to report what he had seen and the fact that he was chasing after this robber. During the course of this chase, Miskovitch slammed on his brakes, put his car in reverse, and ran into Rupp's car and then he fled from the accident scene. The car that Miskovitch used was abandoned in Fawn Township, Allegheny County, and was discovered approximately one-half hour after the robbery.

Trial Court Opinion (TCO), 6/28/11, at 5–6.

The Commonwealth charged Appellant by criminal information on January 21, 2005 with robbery (victim Israel), aggravated assault (victim Rupp), receiving stolen property (vehicle), theft by unlawful taking (McDonald's property), receiving stolen property (McDonald's property), and two counts of simple assault (victims Miller and Israel), stemming from the the robbery of the Leechburg McDonald's. Following a complicated and unusually long procedural history, Appellant was ultimately tried by a jury beginning on September 15, 2009. On September 18, 2009, the jury convicted Appellant of robbery and receiving stolen property, but acquitted him of the aggravated assault charge.¹ On December 14, 2009, trial court sentenced Appellant to 5–10 years' incarceration.

Appellant now presents the following questions for our review:

1. Whether the Defendant's speedy trial rights under Pa.R.Crim.P. 600 were violated?

2. Whether the Defendant's speedy trial rights under the Sixth Amendment to the United States Constitution were violated?

3. Whether the trial court deprived Defendant of due process of law in re-instructing the jury on robbery where the jury requested a charge on aggravated assault?

4. Whether the trial court deprived Defendant of due process of law in giving an improper analogy of reasonable doubt during the court's final instructions to the jury?

5. Whether the Defendant was tried multiple times for offenses stemming from the same criminal episode in contravention of 18 Pa.C.S.A. § 110 and the double jeopardy clause of the U.S. Constitution?

6. Whether Mr. Miskovitch was improperly prosecuted in a jurisdiction without venue that being Allegheny County for a Westmoreland County offense (receiving stolen property)?

Appellant's Brief, at 3.

Rule 600 and Constitutional Speedy Trial Rights

Although initially charged by criminal complaint on August 3, 2004, and arrested on August 5, 2004, Appellant was not tried for more than five years. As early as January 25, 2006, Appellant alleged a violation of his speedy trial rights and filed a counseled motion to dismiss pursuant to Pa.R.Crim.P. 600. The motion was denied at a hearing held that same day. On April 21, 2009, Appellant filed another counseled motion to dismiss the charges, premised upon a violation of his state and federal speedy trial rights. In his first two issues raised in the instant direct appeal, Appellant contends that the trial court abused its discretion by dismissing his Rule 600 motion on January 25, 2006 and, furthermore, that his speedy trial rights under the 6th and 14th Amendments to the United States Constitution had been violated because he was not tried for over five years, as set forth in his 2009 motion to dismiss.

Appellant notes that at the time the Rule 600 motion was filed, 539 days had elapsed since the time of his arrest. Appellant also contends that the certified record is devoid of any defense postponements or other excludable time during the applicable time period. Moreover, Appellant alleges that the Commonwealth failed to exercise due diligence in bringing him to trial as required by Rule 600.

Regarding his constitutional claims, Appellant asserts that the five-year delay in bringing the case to trial was so shockingly long as to effectively constitute a per se or presumptive violation of his speedy trial rights. Alternatively, Appellant asserts that deprivation of his speedy trial rights was evidenced by his numerous objections to the nearly perpetual succession of delays that plagued this case. He claims that he was substantially prejudiced by the loss of both exculpatory evidence and witnesses.

In its Pa.R.A.P. 1925(b) opinion, the trial court states that Appellant's competency to stand trial was at issue during the applicable time period, and that “delay in bringing a defendant to trial which is attributable to his incompetency to stand trial is excludable for the purpose of the speedy trial determination.” Trial Court Opinion (TCO), 6/28/11, at 15–16 (citing Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988)). The trial court further reasons that even if Appellant makes “a claim of the violation of his speedy trial rights during the period of his incompetency, that such a claim is irrelevant since the Commonwealth was precluded from trying an individual who was incompetent to stand trial.” Id. at 16—17. Though the trial court acknowledges that Appellant made both in-court declarations and written statements indicating that “he did not consent to a delay and suggesting a violation of his Rule 600 rights, those claims are irrelevant since his competency had not been established at any point in time prior to the time that he was scheduled for his trial in September of 2009.” Id. at 17.

“In evaluating speedy trial issues, our standard of review is whether the trial court abused its discretion, and our scope of review is limited to the trial court's findings and the evidence on the record, viewed in the light most favorable to the prevailing party.” Commonwealth v. Wholaver, 605 Pa. 325, 989 A.2d 883, 899 (2010), cert. denied,––– U.S. ––––, 131 S.Ct. 332, 178 L.Ed.2d 216 (U.S.2010) (citing Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d 802, 805 (2005)). “Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration.” Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.Super.2004) (quoting Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746, 749 (1949)). “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.” Id. (quoting Commonwealth v. Jones, 826 A.2d 900, 907 (Pa.Super.2003) ( en banc )).

Summarizing Rule 600, our Supreme Court has held that:

Rule 600(A)(3) provides trial in a court case where a written complaint is filed against the defendant who is at liberty on bail must commence no later than 365 days from when the complaint is filed. Certain periods are excludable from computation of the period for commencement of trial, including delay resulting from the unavailability of the defendant or his attorney, or any continuance granted at the request of the defendant and his attorney. Pa.R.Crim.P. 600(C)(3)(a)-(b). If the court determines the Commonwealth exercised due diligence, and the circumstances occasioning the postponement were beyond the Commonwealth's control, the motion to dismiss on speedy trial grounds shall be denied. Id., 600(G).

Wholaver, 989 A.2d at 899.

The starting point for calculating delay for Rule 600 purposes is the date of filing of the criminal complaint, which occurred in this case on August 3, 2004. Appellant's Rule 600 claim was raised on January 25, 2006, 540 days after the filing of the complaint, or 175 days after the mechanical run date for Rule 600 purposes. Two of those days were excludable time under Pa.R.Crim.P. 600(C)(1) (designating post-complaint, pre-arrest delay as excludable time for Rule 600 purposes, provided “the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due...