Opinion
2180 EDA 2022 J-S25015-23
10-02-2023
COMMONWEALTH OF PENNSYLVANIA v. JOSEPH DILFALCO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
Appeal from the Judgment of Sentence Entered February 18, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007929-2018
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM
NICHOLS, J.
Appellant Joseph DiFalco appeals from the judgment of sentence imposed following his conviction for robbery and related offenses. Appellant argues that the trial court erred in denying his Pa.R.Crim.P. 600(A) motion to dismiss and claims that the verdict was against the weight of the evidence. For the reasons set forth below, we vacate the order denying Appellant's motion to dismiss and the judgment of sentence, and we remand for a new Rule 600 hearing.
By way of background, Appellant was arrested and charged with robbery, firearms not to be carried without a license, carrying firearms in public in Philadelphia, simple assault, theft by unlawful taking, receiving stolen property, possession of an instrument of crime, and recklessly endangering another person on August 8, 2018. On September 14, 2021, Appellant filed a Rule 600(A) motion to dismiss the charges. The Commonwealth subsequently filed a response. On November 1, 2021, the trial court conducted a hearing. Ultimately, the trial court denied Appellant's motion and the matter proceeded to trial. That same day, the trial court found Appellant guilty of the above-referenced offenses. On February 18, 2022, the trial court sentenced Appellant to an aggregate term of five to ten years' incarceration.
18 Pa.C.S. §§ 3701(a)(1)(ii), 6106(a)(1), 6108, 2701(a), 3921(a), 3925(a), 907(a), and 2705, respectively.
Appellant subsequently filed a motion for reconsideration challenging the discretionary aspects of his sentence and a separate post-sentence motion challenging the weight of the evidence. On February 28, 2022, the trial court entered an order denying Appellant's motion for reconsideration of sentence without a hearing. The trial court entered an order purporting to deny
Appellant's post-sentence motion on October 6, 2022.
On May 5, 2022, Appellant filed Post Conviction Relief Act (PCRA) petition, seeking reinstatement of his direct appeal rights nunc pro tunc. The trial court entered an order reinstating Appellant's direct appeal rights nunc pro tunc on July 27, 2022, and Appellant filed a timely appeal nunc pro tunc. Appellant subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement, and the trial court issued a Rule 1925(a) opinion addressing Appellant's claims.
We note that the trial court's October 6, 2022 order purporting to deny Appellant's post-sentence motion was entered 223 days after the post-sentence motion was filed. The Pennsylvania Rules of Criminal Procedure require a trial court to decide a post-sentence motion within 120 days. Pa.R.Crim.P. 720(B)(3)(a). If a trial court fails to decide the motion within that time, the motion is denied by operation of law. Id. When a post-sentence motion is denied by operation of law, the clerk of courts is required to enter an order that the post-sentence motion is deemed denied. Pa.R.Crim.P. 720(B)(3)(c). Here, although Appellant's post-sentence motion was denied by operation of law on June 27, 2022, the clerk of courts did not enter an order stating that the post-sentence motion was denied. This Court has repeatedly determined that such a failure is a breakdown of court operations. Commonwealth v. Juray, 275 A.3d 1037, 1040 n.1 (Pa. Super. 2022). Because the trial court reinstated Appellant's direct appellate rights nunc pro tunc after granting Appellant PCRA relief, we have jurisdiction over this appeal.
Appellant raises the following issues for our review:
1. Whether the [trial] court abused its discretion in denying Appellant's Rule 600(A) motion for dismissal, where the motion was heard and denied on November 1, 2021, which was 172 days beyond the adjusted run date of May 13, 20[21], thereby violating Appellant's statutory right to a speedy trial?
2. Whether the trial court's verdict finding Appellant guilty of robbery, criminal conspiracy and carrying a firearm without a license were against the weight of the evidence, where no proceeds of the robbery were recovered as a result of the execution of a search warrant at Appellant's home, the complainant alleged that Appellant possessed a sawed off shotgun, but no firearm [was] recovered by police or observed in Appellant's possession during videotape surveillance of the encounter, and the complainant admitted at trial [that] he falsely reported to police[] that the co-defendant punched him in the mouth with brass knuckles, and also testified that he
falsely told police that Appellant had stolen his cellphone, along with other inconsistent and contradictory statements?
Appellant's Brief at 6 (some formatting altered).
In his first issue, Appellant contends that the trial court abused its discretion when it denied his Rule 600(A) motion for dismissal. Id. at 11. Specifically, Appellant argues that "there were more than 405 includable days, 30 days beyond the run date prior to the COVID-19 [p]andemic, and there were an additional 73 days chargeable to the Commonwealth after the Pennsylvania [c]ourts reopened." Id. at 14.
Our standard and scope of review of a trial court's denial of a motion to dismiss pursuant to Rule 600 is as follows:
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.Commonwealth v. Leaner, 202 A.3d 749, 765-66 (Pa. Super. 2019) (citation omitted and formatting altered).
Rule 600 provides, in relevant part, "[t]rial 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." Pa.R.Crim.P. 600(A)(2)(a). The Rule further states:
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(C)(1).
Generally, the Commonwealth must bring a criminal defendant to trial before the "mechanical run date," meaning within 365 days from the date upon which a written criminal complaint is filed. Leaner, 202 A.3d at 766 (citation omitted).
However, our Supreme Court has explained:
[T]he Rule 600 run date may be adjusted pursuant to the computational directives set forth in Subsection (C) of the Rule. For purposes of the Rule 600 computation, "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." [Pa.R.Crim.P. 600(C)(1)]. "Any other periods of delay," including those caused by the defendant, "shall be excluded from the computation." Id. When considering a Rule 600 motion, the court must identify each period of delay and attribute it to the responsible party, then adjust the 365-day tally to arrive at the latest date upon which the Commonwealth may try the defendant [("the adjusted run date")]. Absent a demonstration of due diligence, establishing that the Commonwealth has done everything reasonable within its power to guarantee that the trial begins on time, the Commonwealth's failure to bring the defendant to trial before the expiration of the Rule 600 time period constitutes grounds for dismissal of the charges with prejudice. See Pa.R.Crim.P. 600(D)(1).Commonwealth v. Barbour, 189 A.3d 944, 947 (Pa. 2018) (some citations omitted and some formatting altered).
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. 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. 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.Commonwealth v. Martz, 232 A.3d 801, 810-11 (Pa. Super. 2020) (citations omitted and formatting altered).
Where the trial court fails to make a finding as to whether the Commonwealth exercised due diligence in bringing the defendant to trial, an appellate court should remand the case to the trial court to conduct a proper Rule 600 analysis. See Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010); see also Commonwealth v. Richardson, 2572 EDA 2018, 2020 WL 1922515, at *5 (Pa. Super. filed Apr. 21, 2020) (unpublished mem.) (concluding that "[w]here a trial court has failed to conduct a proper due diligence analysis, the correct action for this Court to take is to remand for the trial court for such analysis" (citation omitted)).
We may cite to non-precedential memorandum decisions filed by this Court after May 1, 2019 for their persuasive value. See Pa.R.A.P. 126(b).
In Commonwealth v. Smith, 277 A.3d 595 (Pa. Super. 2022) (en banc), this Court addressed a similar situation in which the record did not contain adequate information for the Court to address the merits of the defendant's claims. In that case, the defendant filed a direct appeal challenging the trial court's denial of his motion to suppress. Smith, 277 A.3d at 599-600. However, the suppression judge did not place any factual findings or legal conclusions on the record. Id. at 603. The suppression judge then left the bench and was not available to issue a Rule 1925(a) opinion. Id. at 606. Ultimately, the Smith Court concluded that it could not "properly review the suppression court's decision, and assess the arguments made by the parties, based on the record currently before [the Court]." Id. at 605.
In reaching that conclusion, the Smith Court explained:
[W]e have no factual findings or legal determinations by any trial judge - let alone findings of fact by the suppression judge who actually viewed the witnesses and ruled on the issues raised herein - to enable us to complete our task of determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Clearly, there are factual issues to be determined in this matter. . . . Thus, remanding for the trial court to make such factual findings is necessary.Id. at 606 (citation and quotation marks omitted and emphasis in original).
We note that Smith involved a suppression motion, and when this Court reverses an order denying a suppression motion, the appropriate relief is a remand for a new trial "at which the Commonwealth will not be permitted to introduce the illegally seized evidence." Commonwealth v. Mattis, 252 A.3d 650, 656 (Pa. Super. 2021) (citation omitted). The instant appeal involves a Rule 600(A) motion, and if the trial court finds that the Commonwealth violated Rule 600(A), "the trial court must dismiss the charges." Leaner, 202 A.3d at 766-67 (citation omitted).
In the instant case, the trial court denied Appellant's Rule 600 motion to dismiss without placing any factual findings or legal conclusions on the record. See N.T. Rule 600 Hr'g, 11/1/21, at 12, 14.
In its Rule 1925(a) opinion, the trial court included the following analysis relating to its denial of Appellant's Rule 600 motion to dismiss:
Importantly, the Philadelphia Court of Common Pleas made clear in the Judicial Administration Docket Order dated April 28, 2020, that Rule 600 was suspended between March 18, 2020 and June 1, 2020, as the court system was shut down due to the global [COVID]-19 pandemic. The order clarified that this time "shall be excluded from the time calculation under Rule 600." On August 20, 2021, the First Judicial District of Pennsylvania continued the temporary suspension of Rule 600 through to October 21, 2021. None of this time was attributable to the Commonwealth because it had continued to be duly diligent pursuant to [Commonwealth v. Harth, 252 A.3d 600 (Pa. 2021)].
The delays that occurred prior to commencement of Appellant's trial were overwhelmingly due to factors outside the Commonwealth's control. These delays included defense requests for continuances of the case for further investigation and appointment of new counsel, [COVID]-19 pandemic delays, and courthouse or administrative closures. Adjusting for these delays, the date of trial was within the statutory speedy trial run date of December 9, 2021. Appellant's waiver trial occurred on November 1, 2021, therefore not running afoul of his speedy trial rights.
Trial Ct. Op., 12/16/22, at 4-5 (unpaginated).
Although the trial court issued a Rule 1925(a) opinion, the trial court did not make any factual findings or legal determinations regarding which periods of delay were attributable to Appellant, which periods were attributable to the Commonwealth, nor did the trial court provide any analysis as to how the Commonwealth acted with due diligence. See Barbour, 189 A.3d at 947; Leaner, 202 A.3d at 766. Moreover, the trial court did not state how it concluded that the adjusted run date in this case was December 9, 2021. Therefore, under the circumstances of the instant case, it is appropriate for this Court to remand for the trial court to conduct a proper Rule 600 analysis. See Selenski, 994 A.2d at 1089 (stating that "[w]here the trial court failed to consider the evidence in the record as it reflected on [the Commonwealth's] due diligence" that "the proper action [is] a remand to the trial court to determine whether the Commonwealth exercised due diligence pursuant to Rule 600"); see also Richardson, 2020 WL 1922515, at *5.
We take judicial notice that while this appeal was pending, the Hon. Mia Roberts Perez, the trial judge herein, was appointed to the United States District Court for the Eastern District of Pennsylvania. Because Judge Perez is now serving as a federal judge, she is no longer available to provide supplemental findings. Therefore, a new Rule 600 hearing must be convened before a different judge. Accord Smith, 277 A.3d at 606.
Judge Perez was nominated for the federal bench by President Joseph R. Biden on July 12, 2022, and was confirmed by the United States Senate on December 7, 2022. See 168 Cong. Rec. S3244 (daily ed. July 12, 2022); 168 Cong. Rec. S7017 (daily ed. Dec. 7, 2022).
For these reasons, we vacate the order denying Appellant's Rule 600 motion to dismiss and the judgment of sentence, and remand for a new Rule 600 hearing. Afterwards, the trial court shall place its findings of fact and conclusions of law on the record. If the trial court finds Rule 600 violations, then the trial court shall vacate Appellant's sentences and convictions and dismiss the charges against Appellant with prejudice. See Barbour, 189 A.3d at 947; Leaner, 202 A.3d at 766-67; see also Commonwealth v. Lear, 290 A.3d 709, 720-21 (Pa. Super. 2023) (remanding for a Rule 600 hearing). If the trial court does not find Rule 600 violations and denies Appellant's Rule 600 motion, it may reimpose the judgment of sentence.
As stated above, if Appellant prevails at the new Rule 600 hearing on remand, he will be entitled to dismissal of the charges. See Barbour, 189 A.3d at 947. Therefore, we decline to address Appellant's claim that the verdict is against the weight of the evidence without prejudice for Appellant to raise this claim on a subsequent appeal if the trial court denies Appellant's Rule 600 motion. See Commonwealth v. Rivera, 238 A.3d 482, 495 (Pa. Super. 2020) (explaining that a successful challenge to the weight of the evidence results in a new trial).
Judgment of sentence vacated. Order denying Appellant's motion to dismiss vacated. Case remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.