Com. v. Burkett, D.

J-A28002-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DARIUS L. BURKETT

Appellant No. 2485 EDA 2013

Appeal from the Judgment of Sentence July 31, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007685-2009

BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 14, 2016

Appellant, Darius L. Burkett, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions of possession of marijuana, possession of offensive weapons

(“POW”), possessing instruments of crime (“PIC”), and resisting arrest. 1 We

affirm.

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

Philadelphia Police Officer Edgar Ruth testified that on the
evening of May 12, 2009, at approximately 10:55 [p.m.],
he was on routine bicycle patrol, in uniform, with his
partners, Officers Jones and Dillard. As they approached
Carroll Park, located on the 5800 block of Girard Ave.,
Officer Ruth observed [Appellant] sitting on a bench in the
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1
35 P.S. § 780-113(a)(31); 18 Pa.C.S.A. §§ 908(a), 907(a), and 5104,
respectively.
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park drinking beer from a can. On approaching
[Appellant], with the intent of issuing him a citation for
drinking from an open container, Officer Ruth asked
[Appellant] for identification. Officer Ruth searched
[Appellant], without securing him, and removed from his
left rear pocket a clear plastic sandwich bag, containing
five smaller baggies all with marijuana.

When Officer Ruth pulled the bag out, [Appellant] “took off
right over the bench and began running.” Officer Ruth
pursued [Appellant] on foot eventually trapping him in a
blind alley with a large fence at the rear. On hearing a
“crackling noise,” Officer Ruth swung his ASP, knocking a
“stun gun” out of [Appellant’s] hand. By the time [Officer
Ruth] stepped back and drew his gun, [Appellant] was
“climbing the fence.”

Philadelphia Police Officer Anthony Jones…further testified
that on seeing [Appellant] flee from Officer Ruth, [Officer
Jones] pursued [Appellant] on [Officer Jones’] bicycle and
upon seeing [Appellant] enter an alley, Officer Jones went
around to the front of the house backing on to the alley,
where he heard “some rattling” and saw [Appellant]
jumping onto the front porch of the house. Officer Jones
then positioned his bicycle at the bottom of the porch
steps in an effort to block [Appellant’s] path. [Appellant]
grabbed Officer Jones, pulling him off his bicycle and
dragging him to the ground several feet away. After a
brief struggle, Officer Jones was eventually able to subdue
[Appellant] and place him in handcuffs. As a result of this
struggle, Officer Jones received a number [of] injuries,
some of which were treated by paramedics at a local
firehouse and others he self treated at home.

[Appellant] testified that on the evening of May 12, 2009,
he was drinking a can of beer when he was approached by
three officers and was asked for “l.D.” He further testified
that after he was searched, he ran “because I knew I was
going to jail. I had a detainer.” He also testified that he
ran through an alley and over two fences before
encountering the second police officer in pursuit.

On cross examination, [Appellant] admitted that on the
day he was arrested, he “was in the drug life” and had sold

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drugs that day for another individual. He testified that
when he was searched, the police recovered $255.00 in
cash representing his share of the drug proceeds for that
day.

(Trial Court Opinion, filed March 28, 2014, at 4-6) (citations to record

omitted). Appellant was subsequently charged with possession of

marijuana, POW, PIC, resisting arrest, and aggravated assault.

On October 1, 2012, Appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P. 600. The court conducted a hearing on January 15, 2013, and

denied Appellant’s motion. Thereafter, Appellant filed a motion to proceed

pro se, which the court granted following a Grazier2 hearing on June 10,

2013. That same day, Appellant’s jury trial began with Appellant proceeding

pro se with standby counsel. A jury convicted Appellant on June 12, 2013,

of possession of marijuana, POW, PIC, and resisting arrest. Appellant

proceeded to sentencing pro se with standby counsel, and on July 31, 2013,

the court sentenced Appellant to an aggregate term of four to eight years’

imprisonment. The court subsequently appointed counsel to represent

Appellant for post-sentence and appeal purposes. Counsel timely filed a

post-sentence motion, while Appellant filed a pro se post-sentence motion

on August 9, 2013. The court denied Appellant’s pro se motion on August

19, 2013.

Appellant filed a premature notice of appeal pro se on August 21,
____________________________________________

2
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

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2013. The court ordered Appellant on August 30, 2013, to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant complied on September 19, 2013. That same day, Appellant

requested an extension of time to file a supplemental Rule 1925(b)

statement, which the court granted.

The court subsequently conducted a hearing on Appellant’s counseled

post-sentence motion on October 23, 2013. Following the hearing, the court

denied the motion.3 On June 16, 2014, Appellant filed in this Court a motion

____________________________________________

3
As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007),
appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). If a defendant in a
criminal case files a timely post-sentence motion, the judgment of sentence
does not become final for the purposes of an appeal until the trial court
disposes of the motions or the motions are denied by operation of law.
Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa.Super. 1997). The
denial of a timely post-sentence motion becomes the triggering event for
filing a notice of appeal. Pa.R.Crim.P. 720(A)(2). Generally, where a
defendant timely files a post-sentence motion, the court shall decide the
motion within 120 days of the filing; otherwise, the motion shall be deemed
denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a). When an
appellant files a notice of appeal before the court has ruled on his post-
sentence motions, the judgment of sentence has not become “final,” and
any purported appeal will be interlocutory and unreviewable. Borrero,
supra. In those circumstances, the proper remedy is to quash the appeal,
relinquish jurisdiction, and remand for the trial court to consider the post-
sentence motions nunc pro tunc. Id. at 161. Nevertheless, if the court
subsequently denies an appellant’s post-sentence motions, “[this Court] will
treat [an] appellant’s premature notice of appeal as having been filed after
entry of [an] order denying post-sentence motions.” See Commonwealth
v. Ratushny, 17 A.3d 1269, 1271 n. 4 (Pa.Super. 2011). Instantly, the
court sentenced Appellant on July 31, 2013, and Appellant’s counsel timely
(Footnote Continued Next Page)

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to vacate the briefing schedule and remand for completion of the record due

to missing transcripts and notes of testimony. This Court granted

Appellant’s motion on July 14, 2014, and gave Appellant the opportunity to

file a supplemental Rule 1925(b) statement, which Appellant filed on

September 17, 2014.

Appellant raises the following issues for our review:

DID NOT THE [TRIAL] COURT VIOLATE APPELLANT’S
CONSTITUTIONAL RIGHTS AND THE RULES OF CRIMINAL
PROCEDURE BY PERMITTING APPELLANT TO REPRESENT
HIMSELF AT A JURY TRIAL AND SENTENCING ABSENT A
KNOWING AND INTELLIGENT WAIVER OF THE RIGHT TO
COUNSEL?

DID NOT THE [TRIAL] COURT ABUSE ITS DISCRETION,
VIOLATE GENERAL SENTENCING PRINCIPLES, CONSIDER
IMPROPER FACTORS AND [DISREGARD] THE SENTENCING
GUIDELINES, WHEN IT IMPOSED AN EXCESSIVE
SENTENCE OF FOUR TO EIGHT YEARS’ INCARCERATION
FOR MISDEMEANORS, A SENTENCE FOUR TIMES THE
COMMONWEALTH’S RECOMMENDATION OF ONE TO TWO
YEARS’ INCARCERATION?

DID NOT THE [TRIAL] COURT ERR AND ABUSE ITS
DISCRETION BY FAILING TO GRANT APPELLANT’S MOTION
TO DISMISS UNDER PENNSYLVANIA RULE OF CRIMINAL
PROCEDURE 600(G) WHERE THE COMMONWEALTH FAILED
TO BRING APPELLANT TO TRIAL WITHIN THE PERIOD
PROVIDED BY THE RULE AND PRESENTED NO EVIDENCE
OF DUE DILIGENCE?
_______________________
(Footnote Continued)

filed a post-sentence motion on August 7, 2013. Thereafter, Appellant filed
a notice of appeal pro se on August 21, 2013, before the court ruled on his
counseled post-sentence motion. The court subsequently denied Appellant’s
counseled post-sentence motion on October 23, 2013. Thus, we will relate
Appellant’s premature notice of appeal forward to October 23, 2013, to
resolve any jurisdictional impediments. See id.

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(Appellant’s Brief at 4).

In his first issue, Appellant argues he did not knowingly and

intelligently waive his right to counsel at trial and sentencing. Appellant

claims his constitutional rights and the Pennsylvania Rules of Criminal

Procedure were violated when the court permitted Appellant to represent

himself without conducting an adequate colloquy. Appellant alleges he did

not understand the nature of the charges against him or the elements of

each offense, specifically for PIC, POW, and resisting arrest. Appellant also

contends he failed to understand the sentencing guidelines, as the court

informed Appellant of only the sentencing maximums. Appellant avers the

court’s deficient colloquy did not insure Appellant understood the benefits of

counsel regarding the rules of procedure Appellant would be expected to

follow and possible defenses of which Appellant would not be aware.

Appellant asserts the court also failed to colloquy Appellant on the need to

object for preservation of any issues. Appellant maintains his written waiver

of counsel did not overcome the court’s inadequate oral colloquy. Appellant

concludes this Court should vacate his judgment of sentence or, in the

alternative, grant him a new trial. We disagree.

In every criminal case, an accused can waive his Constitutional rights,

including the right to counsel, as long as the waiver is intelligently and

understandingly made. Commonwealth v. Sliva, 415 Pa. 537, 539-40,

204 A.2d 455, 456 (1964). We addressed the right to counsel and right to

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self-representation in Commonwealth v. Houtz, 856 A.2d 119 (Pa.Super.

2004), where we explained:

Both the right to counsel and the right to self-
representation are guaranteed by the Sixth Amendment to
the United States Constitution and by Article I, Section
Nine of the Pennsylvania Constitution. Deprivation of
these rights can never be harmless. The constitutional
right to counsel may be waived, but this waiver is valid
only if made with knowledge and intelligence.

In order to make a knowing and intelligent waiver, the
individual must be aware of both the nature of the right
and the risks and consequences of forfeiting it. Moreover,
the presumption must always be against the waiver of a
constitutional right. Nor can waiver be presumed where
the record is silent. The record must show, or there must
be an allegation and evidence which shows, that an
accused was offered counsel but intelligently and
understandingly rejected the offer. Thus, for this Court to
uphold such a waiver, the record must clearly demonstrate
an informed relinquishment of a known right.

Id. at 122 (internal citations and quotation marks omitted). Rule 121 of the

Pennsylvania Rules of Criminal Procedure provides, in relevant part:

Rule 121. Waiver of Counsel

* * *

(C) Proceedings Before a Judge. When the defendant
seeks to waive the right to counsel after the preliminary
hearing, the judge shall ascertain from the defendant, on
the record, whether this is a knowing, voluntary, and
intelligent waiver of counsel.

(D) Standby Counsel. When the defendant’s waiver of
counsel is accepted, standby counsel may be appointed for
the defendant. Standby counsel shall attend the
proceedings and shall be available to the defendant for
consultation and advice.

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Pa.R.Crim.P. 121(C), (D).

To assure a waiver of counsel is knowing, voluntary, and intelligent,

the defendant must be colloquied on his understanding of at least the

following six elements:

(1) whether the defendant understands that he has a right
to be represented by counsel and the right to free counsel
if he is indigent, (2) whether the defendant understands
the nature of the charges against him and the elements of
each of those charges, (3) whether the defendant is aware
of the permissible range of sentences and/or fines for the
offenses charged, (4) whether the defendant understands
that if he waives the right to counsel he will still be bound
by all the normal rules of procedure and that counsel
would be familiar with these rules, (5) whether the
defendant understands that there are possible defenses to
these charges [of] which counsel might be aware, and if
these defenses are not raised they may be lost
permanently, and (6) whether the defendant understands
that, in addition to defenses, the defendant has other
rights that, if not timely asserted, may be lost permanently
and that if errors occur and are not objected to or
otherwise timely raised by the defendant, the objection to
these errors may be lost permanently.1
1
In addition to these six factors, a waiver colloquy
must, of course, always contain a clear
demonstration of the defendant’s ability to
understand the questions posed to him during the
colloquy….

Commonwealth v. McDonough, 571 Pa. 232, 236, 812 A.2d 504, 506-07

(2002) (citing Pa.R.Crim.P. 121(A)(2)). “The trial judge need not literally be

the one to pose the questions to the defendant, but the text of Rule 121(C)

requires the judge to ascertain the quality of the defendant’s waiver.”

Houtz, supra at 123-24.

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Instantly, the court discussed Appellant’s first issue as follows:

Prior to commencing jury selection, [Appellant’s] counsel
requested a “Grazier hearing,” advising the [c]ourt,
without objection, that [Appellant] desired “to waive
counsel and proceed pro se in this matter.” The [c]ourt
then colloquied [Appellant] addressing each of the points
enumerated in [McDonough, supra at 236, 812 A.2d at
506-07].

Despite [Appellant’s] then current representation by the
Public Defender’s office, the [c]ourt reiterated to
[Appellant] that he was entitled to an attorney. In
response, [Appellant] advised [the court] that he [did not]
want the representation of the Public Defender or the
appointment of another attorney because he felt “more
confident with himself.”

After a review of the charges against him, [Appellant]
advised that he thought he knew enough about the law to
represent himself, that he had studied his case “for four
years” and was aware of the elements of the charges
against him, stating that he had written notes on the
elements of each of the charges against him. [Appellant]
also understood that in representing himself that he would
be held “to the same standards as a lawyer would be…and
that he would have to follow the Rules of Evidence.” The
[c]ourt appointed the Public Defender as standby counsel
to assist [Appellant] during the trial to insure that he
accesses to any assistance that he needed at trial. The
[c]ourt notes, Appellant was again advised of the charges
against him and possible sentences during the colloquy
conducted during a break in jury selection.

In addition to reviewing the charges against [Appellant],
the [c]ourt also reviewed with him the permissible ranges
of sentences that could be imposed in the event of a guilty
verdict. This review included both a discussion of the
possible statutory sentences, as well as the suggested
guideline ranges. It was clear that [Appellant] understood
that “if there is a defense, a legal defense or any type of
defense, and you don’t raise it at trial, then you lose that
defense later on.” He also understood that in addition to
possible loss of specific defenses, he might also lose other

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rights. As an example, he was advised that if he was
“represented by a lawyer, and that lawyer failed to raise a
defense, you could complain about that afterwards. But if
you fail to raise that defense, you have no complaint. You
can’t complain about your own ineffective representation.”

Educationally, [Appellant] has obtained a GED. Although
[Appellant] had never represented himself in [c]ourt
before, it is clear from a review of his criminal record that
he is not unfamiliar with the judicial process. Additionally,
[Appellant] filed with the [c]ourt a “Motion To Proceed Pro
Se Pursuant To PA. Const. Art. 1 § 9” dated June 4, 2013,
in which he specifically addressed each of the points raised
in [McDonough, supra at 236, 812 A.2d at 506-07]. The
[c]ourt also notes that on [May 10, 2012], [Appellant] filed
a pro se “Motion to Dismiss Pursuant To Rule 600(G),” in
which he set forth each of the charges against him. It is
clear that [Appellant’s] comment that he had studied his
case “for four years,” was not glibly made. After careful
consideration of the record before it, and having no
objection from [Appellant’s] counsel, the [c]ourt was and
is convinced that [Appellant] understood the questions put
to him, understood his rights to representation at trial,
understood the charges against him and the possible
sentences associated with these charges, and that he had
knowingly and intelligently asserted his right to represent
himself at trial.

[Appellant], in further support of his supplemental
complaint, states “the lower court further erred by failing
to appoint counsel when, at the start of trial, [A]ppellant
allowed himself to be arraigned on the wrong charge,
thereby demonstrating inability to represent himself.”
[Appellant’s] complaint is without merit.

At the commencement of his trial, [Appellant] was initially
arraigned by the court crier. The crier made a clerical
error in arraigning him on the charge of “using an
incapacitation device” pursuant to 18 Pa.C.S.A. § 908.1.
This error was immediately called to the attention of the
[c]ourt by the Commonwealth and, after a discussion in
chambers, [Appellant] was properly arraigned on the
correct charge of [POW], 18 Pa.C.S.A. § 908. During
[Appellant’s] waiver hearing…the Commonwealth, in

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amending the Information filed against [Appellant],
discussed the distinction between these charges at length,
making it clear that it was proceeding on 18 Pa.C.S.A. §
908. In short, this was a clerical error which in no way
demonstrated that [Appellant] was unable to adequately
defend himself.

Prior to proceeding with his sentencing hearing,
[Appellant] again advised the [c]ourt that he wished to
continue representing himself with the assistance of
standby counsel. The [c]ourt then engaged [Appellant] in
a colloquy in order to determine whether…he was prepared
to proceed with the hearing. [Appellant] advised the
[c]ourt that he was familiar with the sentencing
procedures, that he had reviewed the Presentence
Investigation Report and that he had discussed this
hearing with standby counsel. After reviewing the
maximum sentences he was facing, standby counsel
advised the [c]ourt that she [did not] know of any reason
why [Appellant] could not “handle this on his own.”
Furthermore, a review of the record reveals that
[Appellant’s] standby counsel actively assisted [Appellant]
at sentencing.

(Trial Court Opinion, filed March 3, 2015, at 5-8) (citations to record

omitted). We accept the court’s analysis. Moreover, neither Appellant nor

standby counsel objected to the adequacy of the court’s colloquy.

Therefore, any claim regarding Appellant’s waiver of counsel is arguably

waived. See Commonwealth v. May, 584 Pa. 640, 887 A.2d 750 (2005),

cert. denied, 549 U.S. 832, 127 S.Ct. 58, 166 L.Ed.2d 54 (2006) (reiterating

absence of specific and contemporaneous objection waives issue on appeal).

In any event, Appellant’s first issue merits no relief.

In his second issue, Appellant argues his aggregate sentence of four to

eight years’ imprisonment is manifestly excessive. Appellant contends the

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court imposed consecutive sentences which were either outside the

guidelines or in the aggravated range. Specifically, Appellant asserts his

sentence of one to two years’ imprisonment for resisting arrest was outside

the guidelines, his sentence of one and one-half to three years’

imprisonment for PIC was in the aggravated range, and his sentence of one

and one-half to three years’ imprisonment for POW was also in the

aggravated range. Appellant claims the court when sentencing him

improperly relied on his alleged assault of a police officer, on which he

obtained an acquittal. Appellant alleges his aggregate sentence was unduly

harsh because Officer Jones’ injuries were not severe, and the sentence does

not promote rehabilitation. Appellant maintains the court miscalculated his

offense gravity score (“OGS”) for PIC as a four when the guidelines deemed

it a three. As presented, Appellant challenges the discretionary aspects of

his sentence. See Commonwealth v. Prisk, 13 A.3d 526 (Pa.Super. 2011)

(stating generally allegations regarding sentencing court’s imposition of

consecutive or concurrent sentence challenges discretionary aspects of

sentencing); Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super. 2007)

(stating miscalculation of OGS constitutes challenge to discretionary aspects

of sentencing); Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super.

2003) (stating claim that court considered improper factors at sentencing

refers to discretionary aspects of sentencing); Commonwealth v. Lutes,

793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly

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excessive challenges discretionary aspects of sentencing).

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

sentencing issue:

[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, See
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, See Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006).

When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). The concise statement must indicate “where the

sentence falls in relation to the sentencing guidelines and what particular

provision of the code it violates.” Commonwealth v. Kiesel, 854 A.2d

530, 532 (Pa.Super. 2004).

“The determination of what constitutes a substantial question must be

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evaluated on a case-by-case basis.” Anderson, supra at 1018 (citation

omitted). A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.” Sierra,

supra at 912-13. A claim that a sentence is manifestly excessive might

raise a substantial question if the appellant’s Rule 2119(f) statement

sufficiently articulates the manner in which the sentence imposed violates a

specific provision of the Sentencing Code or the norms underlying the

sentencing process. Mouzon, supra at 435, 812 A.2d at 627. Generally,

an appellant raises a substantial question where he alleges an excessive

sentence due to the court’s reliance on impermissible factors.

Commonwealth v. McNabb, 819 A.2d 54 (Pa.Super. 2003). Likewise, a

claim that a sentencing court applied an incorrect OGS raises a substantial

question. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super.

2012). Nevertheless, any challenge to a sentencing court’s imposition of a

consecutive sentence, rather than a concurrent one, does not raise a

substantial question. Prisk, supra at 533.

Preliminarily, we observe neither Appellant nor standby counsel

objected at sentencing to the OGS for PIC. See May, supra. Furthermore,

the argument section of Appellant’s brief fails to develop Appellant’s claim

that the court miscalculated his OGS for PIC. Therefore, Appellant’s OGS

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claim is waived. See id.; Pa.R.A.P. 2119(a)-(b).

Here, the court determined:

Prior to rendering its decision with regard to [Appellant’s]
sentence, the [c]ourt, reviewed his Presentence
Investigation Report and argument of counsel. The [c]ourt
notes that [Appellant] has a history demonstrating a total
lack of respect for authority. Most recently, [Appellant] in
attempting to avoid arrest physically assaulted Officer
Jones and threatened Officer Ruth with a “stun gun.” Prior
to imposing sentence, the [c]ourt stated for the record:

THE COURT: In addition to his adult record, his nine
arrests, four convictions and two commitments with
two violations, he also has a juvenile record of three
arrests resulting in three adjudications of
delinquency. There is no question that [Appellant]
will continue to offend. It’s just the question of what
kind of crime and how long it takes him to get
arrested again.

Because of his extensive criminal history, a history
which is not adequately reflected in the prior record
score, and the seriousness of the offense, resisting
arrest is what he was convicted of, but it was really
an assault on police. Why anybody would think that
they could use a stun gun on a police officer and not
get shot, l have no idea. [Appellant] was lucky that
night.

If you attack a police officer, a uniformed police
officer, you’ll attack anybody. In uniform, armed
with a deadly weapon, and nevertheless attacked by
[Appellant], it’s a serious offense. We’re all lucky
nobody was seriously injured that night.

(Trial Court Opinion, filed March 28, 2014, at 15) (citations to record

omitted). The court later continued:

[Appellant] misstates the record. Prior to imposing
sentence it was agreed that the [OGS] for both PIC [and]
POW, graded as misdemeanors of the first degree, was 4,

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with the guidelines recommending a sentence range of 6—
16 months, ±3 months. Each of these convictions carried
a maximum sentence of five years. On the charge of
Resisting Arrest, graded as misdemeanors of the second
degree, the OGS is 2, with the guidelines recommending a
sentence range of RS-6 months, ±3 months. Although the
court did not review this particular range it did advise
[Appellant] that the maximum statutory sentence was two
years. On the charge of Possession of Marijuana, an
ungraded misdemeanor, the OGS is 1, with the guidelines
recommending a sentence range of RS-4 months, ±3
months, with a maximum sentence of 6 months.

[Appellant’s] sentences of 18 to 36 months on the PIC
[and] POW convictions clearly fall within the guideline
ranges. Although [Appellant’s] sentence of 12 to 24
months on the charge of Resisting Arrest represented the
maximum, it is only 3 months greater than the guidelines
recommendation. As previously discussed, the [c]ourt
stated its reasons for these sentences on the record.

As to the charge of Possession of Marijuana, the [c]ourt
made a determination of guilt without further penalty. In
view of the seriousness of the other crimes and the
sentences imposed, the [c]ourt felt it was appropriate to
depart from the guidelines. Since [Appellant] clearly
benefitted from this determination and the Commonwealth
raised no objection, the [c]ourt did not feel it was
necessary to explain its decision further.

Lastly, [Appellant] was convicted of both PIC, which
prohibits the possession of any instrument of crime with
intent to employ it criminally, and POW, which prohibits
the possession of an offensive weapon. As the definitions
of these crimes contain separate and distinct elements,
they do not merge for sentencing purposes.
Commonwealth v. Baldwin, 604 Pa. 34, 985 A.2d 830
(2009)[.] Therefore, sentencing [Appellant] to serve
consecutive sentences on these convictions does not, as
[Appellant] implies, constitute double counting under the
sentencing guidelines. As previously discussed, the
Superior Court of Pennsylvania, in Commonwealth v.
Mastromarino, 2 A.3d 581, 586[-87] (Pa.Super. 2010),
reiterated…“Long standing precedent of this Court

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recognizes that 42 Pa.C.S.A. § 9721, affords the
sentencing [court] discretion to impose its sentence
concurrently or consecutively to other sentences being
imposed at the same time or to sentences already
imposed.” The mere fact that these convictions arise from
the “same conduct” does not prohibit the [c]ourt from
exercising its discretion in imposing consecutive sentences.
This is especially true where, as in the instant matter[,]
[Appellant’s] extensive criminal history is not adequately
reflected in the prior record score and where his current
convictions arose out [of] his assault on a uniformed police
officer with a stun gun while resisting arrest.

(Trial Court Opinion, filed on March 3, 2015, at 9-10) (citations to record

omitted). We accept the court’s analysis. Moreover, Appellant’s claim that

the sentencing court improperly considered his attack of Officer Jones,

despite Appellant’s acquittal of aggravated assault, does not merit relief.

See Commonwealth v. Bowers, 25 A.3d 349, 356 (Pa.Super. 2011)

(declaring sentencing court may consider arrests that result in acquittals as

long as court is aware of acquittal). Furthermore, the court had the benefit

of a presentence investigative (“PSI”) report at sentencing. Therefore, we

can presume the court considered the relevant facts when sentencing

Appellant. See Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005)

(stating where sentencing court had benefit of PSI, law presumes court was

aware of and weighed relevant information regarding defendant’s character

and mitigating factors). Accordingly, Appellant’s second issue merits no

relief.

In his final issue, Appellant argues his Rule 600 motion to dismiss

should have been granted because it took 673 days to bring Appellant to

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trial. Appellant contends the Commonwealth failed to bring him to trial

within the required 365 days, or to present evidence of due diligence.

Appellant asserts his criminal complaint was filed on May 13, 2009, and his

trial did not begin until June 10, 2013, due to delays that included necessary

police officers being unavailable or failing to appear at several listings,

Appellant not being brought to court on multiple occasions, and the

Commonwealth’s failure to insure the earliest possible date of trial.

Appellant also claims the court improperly applied the wrong Rule 600.

Appellant maintains defense counsel and the Commonwealth agreed to

include the 234 days between September 30, 2011 and May 21, 2012, in the

Rule 600 calculation. Appellant concludes this Court should reverse the

denial of his Rule 600 motion and discharge his case. We disagree.

“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. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc), appeal denied,

583 Pa. 659, 875 A.2d 1073 (2005).

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,

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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.

Id. at 1238-39 (internal citations and quotation marks omitted).

The version of Rule 600 in effect at the relevant time of Appellant’s

case provided, in pertinent part:

Rule 600. Prompt Trial

* * *

[(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.

* * *

(C) In determining the period for commencement of
trial, there shall be excluded therefrom:

* * *

(3) such period of delay at any stage of the proceeding
as results from:

(a) the unavailability of the defendant or the
defendant’s attorney;

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J-A28002-15

(b) any continuance granted at the request of the
defendant or the defendant’s attorney.

Pa.R.Crim.P. 600(A)(3), (C)(3) (prior version).4 “Rule 600 generally

requires the Commonwealth to bring a defendant on bail to trial within 365

days of the date the complaint was filed.” Hunt, supra at 1240. A

defendant on bail after 365 days, but before trial, may apply to the court for

an order dismissing the charges with prejudice. Id. at 1240-41. To obtain

relief, however, a defendant must have a valid Rule 600 claim at the time he

files his motion for relief. Id. at 1243.

“The mechanical run date is the date by which the trial must

commence under Rule 600.” Commonwealth v. McNear, 852 A.2d 401,

406 (Pa.Super. 2004).

It is calculated by adding 365 days (the time for
commencing trial under Rule 600) to the date on which the
criminal complaint is filed. The mechanical run date can
be modified or extended by adding to the date any periods
of time in which delay is caused by the defendant. Once
the mechanical run date is modified accordingly, it then
becomes an adjusted run date.

Id. (quoting Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa.Super.

2003)).

In the context of Rule 600, “excludable time” is differentiated from

“excusable delay” as follows:

“Excludable time” is defined in Rule 600(C) as the period
____________________________________________

4
A new version of Rule 600 went into effect on July 1, 2013.

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J-A28002-15

of time between the filing of the written complaint and the
defendant’s arrest, …any period of time for which the
defendant expressly waives Rule 600; and/or such period
of delay at any stage of the proceedings as results from:
(a) the unavailability of the defendant or the defendant’s
attorney; (b) any continuance granted at the request of
the defendant or the defendant’s attorney. “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.

Commonwealth v. Brown, 875 A.2d 1128, 1135 (Pa.Super. 2005), appeal

denied, 586 Pa. 734, 891 A.2d 729 (2005) (quoting Hunt, supra at 1241).

Even where a violation of Rule 600 has technically occurred, we

recognize:

[T]he 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].

Brown, supra at 1138 (quoting Hunt, supra at 1241-42) (emphasis in

original).

In the present case, the Commonwealth filed the criminal complaint

against Appellant on May 13, 2009. Therefore, the initial Rule 600

mechanical run date was May 13, 2010. The court disposed of Appellant’s

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J-A28002-15

Rule 6005 claim as follows:

At the hearing held on January 15, 2013, to consider
[Appellant’s Rule 600] motion, counsel were able to agree
as to most of the relevant dates to be ruled either
excludable or excusable. The [c]ourt will, therefore, limit
its discussion to those dates in dispute.

The first period of time at issue is the 97 day period
between 1/8/2010—3/3/2010. Counsel agreed that the
record shows the matter “was marked ready, not reached
by the [c]ourt.” Furthermore, the record also reveals that
the hearing judge ruled this time to be excusable.
“Judicial delay can support the grant of an extension of the
Rule [600] run date.” [Brown, supra at 1135.] It is clear
from the record that the unavailability of a courtroom was
beyond the control of the Commonwealth and that both
[Appellant] and the Commonwealth were prepared to go
forward but for the unavailability of a [courtroom]. This
time is, therefore, …not included in the Rule 600
calculation.

The next period of time to be considered is the 177 day
period between 3/3/2010—6/3/2010 and 6/3/2010—
8/27/2010. The [c]ourt finds these periods of time
excusable. The record indicates that the Commonwealth’s
police officer was injured on duty (IOD) and unavailable to
testify on both dates. The Commonwealth’s file also
reveals that as of 6/3/2010[,] the officer was cleared to
return to duty the following week on 6/10/2010. However,
the next hearing [was not] scheduled until 8/27/2010, the
earliest possible date available. The prosecution has no
control over the inability of a police officer, injured on
duty, to appear and testify. Commonwealth v.
Anderson, 959 A.2d 1248 (Pa.Super. 2008)[.]

The next period of time at issue is the 85 day period
between 1/18/2011—1/27/2011, 1/27/2011—3/22/2011
____________________________________________

5
The court incorrectly considered the new Rule 600 in analyzing Appellant’s
claim. Nevertheless, the pertinent portions of the rule are substantially the
same as the prior rule.

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J-A28002-15

and 3/22/2011—4/13/2011. The [c]ourt finds these
periods of time to be excusable. The record indicates that
on both 1/8/2011 and 3/22/2011[,] [Appellant] was not
brought to Philadelphia from his place of incarceration at
SCI Huntington. As [the] Superior Court has held: “The
prosecutor cannot be charged with responsibility for the
delay because the system seems unable to find, transport,
and house defendants in their custody. Unfortunately,
writs issued for defendants in state custody are routinely
cancelled and defendants are not brought to court because
of overcrowding.” Commonwealth v. Mines, 797 A.2d
963, [965] (Pa.Super. 2002)[.] Coincidentally, on the day
of the hearing to consider his Rule 600 motion, [Appellant]
was yet again unavailable to attend because he had not
been brought to court. The record also indicates and
counsel agree[d] that, through an act of God, the [c]ourt
was closed on 1/27/2011, necessitating yet another
continuance. The [c]ourt takes judicial notice that it is
completely beyond the ability of the Commonwealth to
control the [vagaries] of the weather.

* * *

Nevertheless, [c]ounsel agreed that…judicial delay can
support an extension pursuant to Rule 600. In addition,
[the] Superior Court reaffirmed long standing Pennsylvania
jurisprudence that a judicial delay of 30 days or less does
not justify dismissal under Rule 600. Commonwealth v.
Preston, 904 A.2d 1 (Pa.Super. 2006)[.] “As our
Supreme Court has noted, short delays beyond the
adjusted run date of a procedural rule do not seriously
implicate a defendant’s Sixth Amendment right to a speedy
trial…nor do they provide a disincentive for states to
remedy court congestion. …” [Id. at 15.]

The underlying consideration behind any decision pursuant
to Rule 600, in balancing the competing principals of
protecting a defendant’s right to speedy [trial] and
protecting society’s right to effective prosecution prior to
dismissal of charges, is the exercise of due diligence by the
Commonwealth. Commonwealth v. Bradford, 46 A.3d
693 (Pa. 2012) “In the absence of actual misconduct on
the part of the Commonwealth specifically calculated to
evade the fundamental speedy trial rights of an accused,

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J-A28002-15

the applicable speedy trial rule must be construed in a
manner ‘consistent with society’s right to punish and deter
crime.’” Preston, [supra at 10.] At the outset of the
hearing on [Appellant’s] motion, the [c]ourt queried: “Let’s
put it this way, 600(G) has built into it Commonwealth’s
due diligence, right?”

… It is clear that throughout the protracted progression of
the matter, [Appellant] vacillated back and forth between
whether to proceed with a waiver trial or a jury trial,
accounting for a number of continuances and rescheduling.
The docket reflects that on 9/16/2011[,] [Appellant] once
again requested a jury trial necessitating yet another
continuance to 9/30/2011. On 9/30/2011, the [c]ourt was
not sitting, necessitating yet another continuance of 75
days to 12/14/2011[,] for a status hearing. In addition to
the continuance, [Appellant’s] trial was scheduled for
5/21/2012. As noted above, the Commonwealth has no
control over the [c]ourt’s scheduling nor is there any
evidence the Commonwealth was not prepared to proceed.
On 12/14/2011[,] the docket indicates an order granting a
continuance was entered and the trial date remained as
5/21/12. Since this was originally listed as a status
hearing, the [c]ourt assumes that this continuance was a
mere formality attributable to neither party.

* * *

The [c]ourt also notes that the record reflects this matter
has been assigned to numerous trial judges for disposition.
This is attributable in part to the “reorganization of the
Philadelphia criminal court system by geographical zone.”
Commonwealth v. Armstrong, 74 A.3d 228, 237
(Pa.Super. 2013)[.] Whether…this time is chargeable to
the Commonwealth begs the question of its due diligence.
The [c]ourt finds, in view of the totality of the
circumstances, that the Commonwealth has met its burden
and acted with due diligence.

The [c]ourt must also consider whether [Appellant] was
prejudiced by the protracted progression of this matter.
[In] Commonwealth v. Clark, 847 A.2d 122 (Pa.Super.
2004)[,] [w]hen the [c]ourt inquired of counsel; “So
what’s the prejudice to your client?” Counsel responded,

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“I don’t think the Commonwealth has a desire…to bring
this case to trial.” As in Clark, [Appellant] was
incarcerated at SCI Huntington serving a sentence on an
unrelated conviction during the pendency of his trial. The
[c]ourt finds that the Commonwealth acted with due
diligence and that [Appellant] did not suffer prejudice
sufficient to warrant the dismissal of the charges against
him pursuant to Rule 600.

(Trial Court Opinion, filed March 28, 2014, at 7-12) (some internal citations

omitted). We accept the court’s analysis. Moreover, excluding the delays

the record does not clearly attribute to either party, Appellant did not have a

viable Rule 600 claim when he filed his motion to dismiss on October 1,

2012. Thus, Appellant’s Rule 600 motion was premature, and Appellant’s

final issue merits no relief. See Hunt, supra. Accordingly, we affirm

Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judge Panella joins this memorandum.

Judge Shogan files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/14/2016

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