Commonwealth v. Moore

• Decision Date: 01 July 2019
• Docket Number: No. 1980 MDA 2018,1980 MDA 2018
• Parties: COMMONWEALTH of Pennsylvania v. James Lewis MOORE, Appellant
• Court: Pennsylvania Superior Court

214 A.3d 244

COMMONWEALTH of Pennsylvania

v.James Lewis MOORE, Appellant

No. 1980 MDA 2018

Superior Court of Pennsylvania.

Submitted June 25, 2019

Filed July 1, 2019

Anthony J. Tambourino, York, for appellant.

James E. Zamkotowich, Assistant District Attorney, and Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS,^* P.J.E.

OPINION BY LAZARUS, J.:

James Lewis Moore appeals from the judgment of sentence, entered in the Court of Common Pleas of York County, after a jury convicted him of possession of child pornography¹ and dissemination of child pornography.² On appeal, Moore challenges the trial court's denial of his motion to dismiss pursuant to Pa.R.Crim.P. 600. Upon careful review, we affirm.

The trial court set forth the factual and procedural history of this matter as follows:

On April 10, 2017, Officer Tiffany Pitts of the York City Police Department[ ] commenced an investigation of [Moore] at the request of the [Pennsylvania State Police ("PSP") ]—Megan's Law Division. According to the PSP, an identified tipster alerted them that [Moore] owns a Facebook social media account, which could potentially be in violation of 18 [Pa.C.S.A.] § 4915.1 since [Moore] had not reported having a cell phone or social media account to the PSP.⁴

⁴ In 2009, [Moore] entered guilty pleas in federal court to child pornography offenses[.] He was released from federal custody July 22, 2016, and required to register as a sex offender.

On April 25, 2017, after reviewing the questionable Facebook account which indicated the user's familial relationship with a known relative of [Moore], Officer Pitts secured a Facebook warrant from the Honorable [ ] Gregory Snyder which, upon execution, unveiled child pornography within private inbox messages. Immediately thereafter, Officer Pitts secured an electronics device warrant from [ ] Magisterial District Judge Joel N. Toluba. When Officer Pitts executed the search warrant the same afternoon at [Moore's] residence located at the LifePath,^[3] ... [Moore] was seated in the shelter's common area next to a cell phone he admitted belonged to him which was charging in an adjacent outlet. Officer Pitts Mirandized [Moore]; however, he made statements indicating that he was unsure whether his phone contained anything illegal. The officers seized [Moore's] phone and three additional non-functional cell phones located in [Moore's] personal storage area near where he slept.

The following day, [Moore] phoned his federal probation officer to confess that he had been untruthful to him in the past and that he was indeed in ownership of a cell phone that was confiscated by police the day before. He also admitted owning a Facebook account and surfing the internet using Wi-Fi. A forensic analysis of [Moore's] cell phone was completed on April 27, 2017, and revealed additional child pornography. [Moore] was swiftly placed under arrest.

Trial Court Opinion, 2/11/19, at 2-3.

Moore was formally charged by criminal complaint filed on April 27, 2017. On July 5, 2018, he filed a motion to dismiss pursuant to Rule 600. After a hearing held on July 9, 2018, the trial court denied Moore's motion and he immediately proceeded to trial, after which a jury convicted him of the above offenses. Sentencing was deferred until August 28, 2018, and was subsequently continued until October 30, 2018, as a result of continuances requested by the Commonwealth and the defense. While Moore's sentencing was pending, on August 14, 2018, the Commonwealth filed notice of its intent to seek a mandatory minimum sentence of 25 years' incarceration pursuant to 42 Pa.C.S.A. § 9718.2.⁴

On October 30, 2018, the trial court sentenced Moore to two concurrent, mandatory sentences of 25 to 50 years' imprisonment. Moore filed post-sentence motions, which were denied by the court on November 2, 2018. Moore filed a timely appeal, followed by a court-ordered concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). He raises the following question for our review:

The Commonwealth failed to bring [Moore's] case to trial within the time limits of [Rule] 600. The trial court erred when it counted time for a continuance issued by the district judge as excusable delay. The district judge provided no reason for the continuance, thus there is no evidence that the continuance was based on judicial delay. That time was, therefore, not excludable time and caused [Moore's] case to go over the Rule 600 time. The Commonwealth was not diligent in bringing [Moore's] case to trial. The trial court's order denying [Moore's] motion to dismiss based on Rule 600 should be reversed.

Brief of Appellant, at 4 (unnecessary capitalization omitted).

Our standard and scope of review in analyzing a Rule 600 issue are both well-settled.

In evaluating Rule 600 issues, our standard of review of a trial court's decision is 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.

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.

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. In considering these matters ..., courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well.

Commonwealth v. Peterson , 19 A.3d 1131, 1134–35 (Pa. Super. 2011), quoting Commonwealth v. Ramos , 936 A.2d 1097, 1100 (Pa. Super. 2007).

Rule 600 provides, in relevant part, as follows:

Rule 600. Prompt Trial

(A) Commencement of Trial; Time for Trial

...

(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.

...

(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.

Generally, Rule 600 requires that a defendant be brought to trial within 365 days of the filing of the criminal complaint. Pa.R.Crim.P. 600(A)(2)(a). However, a defendant is not automatically entitled to discharge under Rule 600 where trial starts more than 365 days after the filing of the complaint. Commonwealth v. Goldman , 70 A.3d 874, 879 (Pa. Super. 2013). Rather, Rule 600 "provides for dismissal of charges only in cases in which the defendant has not been brought to trial within the term of the adjusted run date, after subtracting all excludable and excusable time." Id. The adjusted run date is calculated by adding to the mechanical run date, i.e., the date 365 days from the complaint, both excludable time and excusable delay. Id. "Excludable time" is classified as periods of delay caused by the defendant. Pa.R.Crim.P. 600(C)(2). "Excusable delay" occurs where the delay is caused by circumstances beyond the Commonwealth's control and despite its due diligence. Commonwealth v. Roles , 116 A.3d 122, 125 (Pa. Super. 2015). "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." Commonwealth v. Armstrong , 74 A.3d 228, 236 (Pa. Super. 2013) (citation omitted). Due diligence includes, inter alia , listing a case for trial prior to the run date, preparedness for trial within the run date, and keeping adequate records to ensure compliance with Rule 600. Commonwealth v. Ramos , 936 A.2d 1097, 1102 (Pa. Super. 2007). Periods of delay caused by the Commonwealth's failure to exercise due diligence must be included in the computation of time within which trial must commence. Pa.R.Crim.P. 600(C)(1).

Here, the complaint was filed on April 27, 2017. Accordingly, the mechanical run date was April 27, 2018. It is undisputed that Moore requested a continuance of his pre-trial conference, resulting in 64 days of excludable time and bringing his adjusted run date to June 30, 2018. Moore was brought to trial on the first day of the court's next trial term, July 9, 2018.⁵

At issue in this matter is an additional 24-day period of delay caused by a continuance of Moore's preliminary hearing, ordered sua sponte by the...