Commonwealth v. Girimonti

245 A.3d 1088 (Table)

COMMONWEALTH of Pennsylvania v. Anthony GIRIMONTI, Appellant

No. 109 WDA 2019

Superior Court of Pennsylvania.

Filed December 21, 2020

MEMORANDUM BY SHOGAN, J.:

Appellant, Anthony Girimonti, appeals from the judgment of sentence entered on December 11, 2018 in the Court of Common Pleas of Allegheny County. After careful review, we affirm the conviction, but we vacate the judgment of sentence and remand for resentencing.

On December 9, 2016, Appellant drove Victim and her friend to a bank to cash a check, and then drove them to a car dealership in Ohio so that Victim could purchase a vehicle. During the return trip, Appellant stopped his vehicle in an alleyway in McKees Rocks, and his three co-defendants, Lawrence Hite, Ronald Fehl, and Michelle Hite, approached Appellant's car and robbed Victim.

On December 29, 2016, Appellant was charged with two counts of robbery, 18 Pa.C.S. § 3701(a)(1)(iv) ; one count of receiving stolen property, 18 Pa.C.S. § 3925(a) ; one count of simple assault, 18 Pa.C.S. § 2701(a)(1) ; and one count of criminal conspiracy, 18 Pa.C.S. § 903. An additional count of simple assault was added by information. On April 12, 2017, the Commonwealth filed a notice of its intent to try Appellant's case with his co-defendants. On October 23, 2017, Appellant filed a motion to sever his case from those of his co-defendants, which the trial court denied on November 22, 2017.

On January 16, 2018, Appellant filed a motion to dismiss his case pursuant to Pa.R.Crim.P. 600. The trial court held a Rule 600 hearing on February 14, 2018. On February 27, 2018, the trial court entered an order denying Appellant's Rule 600 motion. On August 20, 2018, Appellant filed a renewed motion to dismiss under Rule 600, which the trial court denied that day. In addition, on September 12, 2018, immediately prior to the commencement of trial, Appellant orally motioned to dismiss pursuant to Rule 600, which motion the trial court denied.

On September 14, 2018, a jury convicted Appellant of the crimes of receiving stolen property and conspiracy to receive stolen property and acquitted him of the remaining charges. On December 11, 2018, the trial court sentenced Appellant to serve a term of incarceration of one year less one day to two years less two days, plus three years of probation on the receiving stolen property conviction. For the conspiracy conviction, the trial court sentenced Appellant to serve a concurrent three-year term of probation.

This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

I. Whether the trial court abused its discretion by denying [Appellant's] multiple requests for dismissal due to a violation of Pa.R.Crim.P. 600, as it was error to attribute continuances requested by co-defendants to [Appellant], and these continuances were used by the co-defendants to negotiate plea agreements linked to testifying against [Appellant] at his trial, where the Commonwealth did not exercise due diligence in bringing the case to trial in a timely manner but rather trial was conducted 623 days after the criminal information was filed?

II. Whether [Appellant's] sentences for Receiving Stolen Property and Conspiracy-Receiving Stolen Property are illegal due to improper grading under Apprendi [v. New Jersey , 530 U.S. 466 (2000) ] and Alleyne [v. United States , 570 U.S. 99 (2013) ].

Appellant's Brief at 5.

Appellant first argues that the trial court abused its discretion in denying his requests for dismissal filed pursuant to Pa.R.Crim.P. 600. Appellant's Brief at 18-24. Specifically, Appellant alleges that the multiple postponements attributable to his co-defendants should be attributed to the Commonwealth. Id . Appellant contends that the postponements were actually Commonwealth postponements "in disguise," the sole purpose being for the Commonwealth to negotiate plea agreements with the co-defendants in order to gain testimony against Appellant. Id . at 21-22.

"When reviewing a trial court's decision in a Rule 600 case, an appellate court will reverse only if the trial court abused its discretion." Commonwealth v. Bradford , 46 A.3d 693, 700 (Pa. 2012). We recognize that the courts of this Commonwealth employ a three-step analysis to determine whether Rule 600 requires dismissal of the charges against a defendant.

The first step in determining whether a technical violation of Rule 600 [...] has occurred is to calculate the "mechanical run date." The mechanical run date is the date by which trial must commence under the relevant procedural rule. [T]he mechanical run date is ascertained by counting the number of days from the triggering event— e.g. , the date on which ... the criminal complaint was filed—to the date on which trial must commence under Rule [600]. Pa.R.Crim.P. [600(A)(3)].

Commonwealth v. Preston , 904 A.2d 1, 11 (Pa. Super. 2006) (internal citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second step, we must "determine whether any excludable time exists pursuant to Rule 600(C)." Commonwealth v. Ramos , 936 A.2d 1097, 1103 (Pa. Super. 2007). In the third step, "[w]e add the amount of excludable time, if any, to the mechanical run date to arrive at an adjusted run date." Id .

It is well settled that any delay occasioned by a defendant is excludable time in the calculation of the adjusted run date. Pa.R.Crim.P. 600(C)(2)-(3). " ‘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. Hunt , 858 A.2d 1234, 1241 (Pa. Super. 2004).

"Due-diligence is a fact-specific concept that is 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. Booze , 953 A.2d 1263, 1273 (Pa. Super. 2008) (quotations and quotation marks omitted). "Judicial delay may justify postponing trial beyond the adjusted run date if the Commonwealth was prepared to commence trial prior to the expiration of the mandatory period but the court was unavailable because of ‘scheduling difficulties and the like.’ " Preston , 904 A.2d at 14 (citation omitted).

Commonwealth v. Lynch , 57 A.3d 120, 124 (Pa. Super. 2012). Any time prior to trial, a defendant may move the trial court for dismissal of the charges if the Commonwealth has violated the Rule. Pa.R.Crim.P. 600(D)(1).

In Commonwealth v. Kimbrough , 872 A.2d 1244, 1260 (Pa. Super. 2005), this Court held that delays imposed by a co-defendant are excludable time for other co-defendants in the same matter for Rule 600 calculations. We explained that a delay caused by a joined co-defendant is excludable where a "separate trial could have required the duplication of testimony and evidence, and would have imposed the burden of two lengthy trials on the trial court." Id .

The trial court offered the following discussion pertaining to this issue:

This [c]ourt heard argument on the Rule 600 motion on February 14, 2018. At that time, both the Assistant District Attorney and counsel for Appellant agreed that the case most on point was Commonwealth v. Kimbrough , 872 A.2d 1244, 1260 (Pa. Super. 2005). (Transcript of Motion hearing, February 14, 2018, hereinafter MT at 6, 10).

* * *

The case sub judice was charged as a four co-defendant case, where the underlying allegation is that the four named defendants conspired to rob the individuals in a car that Appellant was driving. At the time of the February 14, 2018 hearing, two of the other co-defendants had requested and were granted two postponements. The Commonwealth had not requested a postponement. Per Kimbrough , this time is excludable from Rule 600 consideration and this [c]ourt did not err in denying the Motion to Dismiss.

Trial Court Opinion, 5/21/19, at 4-5. Upon careful review of the record, we are constrained to agree.

Our review of the certified record reflects that the trial court held a hearing on Appellant's Rule 600 motion on February 14, 2018. During the hearing, the assistant district attorney explained that the Rule 600 adjusted run date had not yet expired due to postponements requested by Appellant's co-defendants. N.T., 2/14/18, at 11-12. Thereafter, the following transpired:

[THE COURT]: So if we are talking about one postponement here, one co-Defendant postponement, that is the basis for [Appellant's] Rule 600 argument. That does change the dynamics, because the second postponement, if I'm understanding what [the Assistant District Attorney] is saying, at this point, doesn't impact the Rule 600 days, because the first [postponement] is the one that would be at issue in order to put [Appellant] behind the Rule 600 [calculation]. Am I misunderstanding what you're saying?

[ASSISTANT DISTRICT ATTORNEY]: You're not misunderstanding, Your Honor. I'll just clarify, there were two defense postponements. One on July 31 ^st by counsel for Mr. Hite [when new counsel was appointed], and the new trial date was November 13, 2017.

The next postponement was on November 8 ^th by counsel for Mr. Fehl, and the new trial date was March 5, 2018.

* * *

My argument was that the first postponement, entirely out of the hands of the Commonwealth, from counsel for Mr. Hite, will put the Rule 600 calculation at April 11 ^th without even counting the second postponement.

N.T., 2/14/18, at 12-14.

The record further reflects that the trial court held a hearing on May 7, 2018, to address a request for postponement filed by Appellant's three co-defendants related to plea offers made by the Commonwealth. Appellant objected. N.T., 5/7/18, at 2. At the hearing, the trial court made the following observations regarding these additional requests for postponements made by Appellant's co-def...