Opinion
J-S38034-16 No. 1647 EDA 2015
05-11-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. DAVID PHILLIP PIERGROSSI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 5, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005014-2012 BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J. MEMORANDUM BY JENKINS, J.:
David Piergrossi files this direct appeal from his judgment of sentence for robbery, terroristic threats, theft by unlawful taking, receiving stolen property, possession of an instrument of crime and simple assault. We affirm.
18 Pa.C.S. §§ 3701(a)(1)(iv), 2706(a)(1), 3921(a), 3925(a), 907(a), and 2701(a)(3), respectively.
The evidence of record demonstrates that on June 18, 2012, Piergrossi held up a supervisor in the jewelry department of a Kohl's Department Store and forced her at gunpoint to hand over gold chains from a display case. Shortly after Piergrossi left the department store, he was apprehended during a traffic stop. Later that day, Limerick Township police filed a criminal complaint against Piergrossi.
On August 21, 2012, Piergrossi was arraigned at Graterford Prison via videoconference. Multiple continuances followed which delayed Piergrossi's case from proceeding to trial until February 2015.
On February 3, 2015, several days before trial, Piergrossi filed a motion to dismiss all charges against him under Pennsylvania's speedy trial rule, Pa.R.Crim.P. 600. His motion claimed that his arraignment was defective, which in turn made the Commonwealth responsible for a series of pretrial continuances, thus violating his right to a speedy trial under Rule 600. On February 9, 2015, the court denied the Rule 600 motion, and the case proceeded to trial.
After a two-day trial, the jury found Piergrossi guilty of the aforementioned offenses. On May 5, 2015, the court sentenced him to an aggregate term of 11-25 years' imprisonment. Piergrossi filed a timely notice of appeal, and both Piergrossi and the trial court complied with Pa.R.A.P. 1925.
Piergrossi raises the following issues in this appeal:
1. Was [Piergrossi] ever properly arraigned in this matter in that:
a. The Bill of Information was not signed or filed by the Commonwealth at the time of the arraignment, and
b. [Piergrossi] was allowed to proceed pro se without the court conducting a colloquy to determine if [Piergrossi] could represent himself at the arraignment?
2. Was [Piergrossi]'s right to a speedy trial under Pennsylvania Rule 600 violated when the Commonwealth did not establish
due diligence because it was partially the Commonwealth's fault that [Piergrossi] was not properly arraigned?Brief For Appellant, at 3.
In his first argument, Piergrossi alleges that his arraignment was improper. We hold that Piergrossi has waived his claims of arraignment error.
The record reflects that on August 21, 2014, Piergrossi's arraignment took place via videoconference between the courtroom and Piergrossi at Graterford Prison. A public defender in the courtroom attempted to represent Piergrossi, but Piergrossi indicated his desire to represent himself. N.T., 8/21/14, at 2. The court allowed Piergrossi to proceed pro se without colloquying him as to whether he was representing himself knowingly, intelligently and voluntarily. Id. at 3. The Assistant District Attorney handed bills of information to the court but advised that she wanted to amend the bills before filing them. The court read Count 1 of the bills to Piergrossi and asked how he wished to plead. Id. at 5. Piergrossi refused to enter a plea, asserting that the court lacked subject matter jurisdiction. Id. at 6. The court assured Piergrossi that it had jurisdiction and asked several more times how he wished to plead to Count 1, but Piergrossi again refused to enter a plea. Id. at 7-10. The court thereupon entered pleas of not guilty on all counts on Piergrossi's behalf. The Commonwealth filed bills of information against Piergrossi the next day.
Well over two years later, on February 3, 2015, Piergrossi filed a motion claiming that two errors during his arraignment laid the foundation for dismissal of his case under Rule 600: (1) the Commonwealth's failure to file bills of information prior to his arraignment, and (2) the court's decision to allow Piergrossi to represent himself at his arraignment without conducting a colloquy to ascertain whether he knowingly, intelligently and voluntarily waived his right to counsel. These defects, said Piergrossi, made the Commonwealth responsible for 428 days of subsequent continuances, thus requiring dismissal of his case under Rule 600.
"One must object to errors, improprieties or irregularities at the earliest possible stage of the criminal ... adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter." Commonwealth v. Strunk , 953 A.2d 577, 580 (Pa.Super.2008). "Issues not raised in the [trial] court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). "[T]rial judges must be given an opportunity to correct errors at the time they are made." Strunk , 953 A.2d at 579.
The Rules of Criminal Procedure provide that the proper time to allege any arraignment errors is in an omnibus pretrial motion for relief. The Rules provide: "Unless otherwise required in the interests of justice, all pretrial requests for relief shall be included in one omnibus motion." Pa.R.Crim.P 578 (emphasis added). The Rules further state that "the omnibus pretrial motion for relief shall be filed and served within 30 days after arraignment, unless opportunity therefor did not exist, or the defendant or defense attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown." Pa.R.Crim.P. 579(a).
Assuming without accepting that there were arraignment errors, Rules 578 and 579 required Piergrossi to object to these mistakes in an omnibus pre-trial motion within thirty days after his arraignment, or by September 20, 2012. The first time that Piergrossi raised any objections, however, was in his Rule 600 motion on the eve of trial, almost 2½ years later. The record demonstrates that Piergrossi was represented by counsel at all times after his arraignment. Piergrossi fails to explain why counsel did not file a timely omnibus motion alleging arraignment errors and requesting re-arraignment. It smacks of gamesmanship for Piergrossi to use arraignment errors to torpedo the Commonwealth's case under Rule 600 when he could have raised these errors years earlier in an omnibus motion, long before the Rule 600 run date. Thus, Piergrossi has waived these claims of error.
Even if Piergrossi preserved these claims for appeal, and again assuming without accepting that error occurred, neither error caused Piergrossi prejudice. The purpose of arraignment is to fix the identity of the accused, inform him of the nature of the charges against him, and provide him with the opportunity to plea thereto. Pa.R.Crim.P. 571; Commonwealth v. Blackwell , 458 A.2d 541, 543 (Pa.Super.1983). Failure to follow the rules of arraignment to the letter is harmless error if the purposes of arraignment are fulfilled and the defendant suffers no prejudice. Blackwell , supra.
Piergrossi complains that the Commonwealth failed to file the bills of information until after his arraignment, thus violating the requirement in the Rules for the Commonwealth to file bills of information in advance of arraignment. See Pa.R.Crim.P. 571(A) ("arraignment shall take place no later than 10 days after the information has been filed"). The trial court correctly reasoned that the tardy filing of the bills caused no harm to Piergrossi:
The Bills of Information were filed the next day [after Piergrossi's arraignment] and do not reflect the amendment the Assistant District Attorney indicated she would make. Therefore, but for [Piergrossi]'s obstreperous behavior, the Court would have read the charges from an identical copy of the Bills of Information. [Piergrossi]'s behavior resulted in pleas of not guilty being entered on his behalf; therefore, [Piergrossi] cannot show that he suffered any prejudice as a result of the Bills being filed one day after arraignment.Pa.R.A.P. 1925 Opinion, at 9-10.
Piergrossi also argues that the court should not have permitted him to proceed pro se at his arraignment without determining whether he knowingly, intelligently and voluntarily waived his right to counsel. The court properly reasoned that Piergrossi suffered no harm from proceeding pro se during his arraignment:
While arraignment is a crucial stage of the proceedings and a defendant is entitled to counsel at that stage, there is no error or prejudice where a defendant appears pro se and enters a plea of not guilty without waiving any rights. See Commonwealth v. Jones , 308 A.2d 598, 602-603 (Pa.1973) (finding arraignment not fatally defective where defendant appeared pro se, signed pauper's oath, and entered plea of not guilty where counsel was appointed shortly after arraignment and defendant's ability to present a defense suffered no prejudice).Pa.R.A.P. 1925 Opinion, at 10-12.
While it is true that the Court did not colloquy [Piergrossi] before allowing him to proceed pro se, such error is harmless error. [The public defender at the arraignment] began to advise [Piergrossi] of his rights and what would happen at a formal arraignment. Counsel remained in the courtroom and was available to [Piergrossi]. After being allowed to address the Court directly, [Piergrossi]'s behavior resulted in the Court entering pleas of not guilty on his behalf. Both the Court and the public defender's office believed that [Piergrossi] was properly arraigned and proceeded accordingly. A public defender entered her appearance on September 4, 2012 and filed a timely Request for Pre-Trial Discovery that same day pursuant to Pa.R.Crim.P. 573(A). Additionally, on September 12, 2012, she filed an omnibus pretrial motion, which is required to be filed within 30 days of arraignment. Pa.R.Crim.P. 579. [Piergrossi] was zealously represented by counsel at all times following his arraignment and his rights were protected by the filing of all appropriate motions; therefore, he suffered no prejudice from being permitted to appear pro se at his arraignment.
In his second issue on appeal, Piergrossi argues that the trial court abused its discretion by denying his Rule 600 motion. We disagree.
Rule 600, as amended on July 1, 2013, provides: "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." Pa.R.Crim.P. 600(A)(2)(a). For purposes of Rule 600(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).
We often refer to the 365-day period in which trial must commence as the "mechanical run" date. Commonwealth v. McNear , 852 A.2d 401, 406 (Pa.Super.2004). "The mechanical run date can be modified or extended by adding to the date any periods of excludable or excusable delay. Once the mechanical run date is modified, it then becomes an adjusted run date." Id. "A defendant is not automatically entitled to dismissal of the charges where trial starts after the mechanical run date ... Rather, dismissal is only proper where defendant is not brought to trial within the adjusted run date, after subtracting all excusable and excludable time." Commonwealth v. Roles , 116 A.3d 122, 125 (Pa.Super.2015).
"Excludable time includes delay caused by the defendant or his lawyer. Concomitantly, excusable delay occurs where the delay is caused by 'circumstances beyond the Commonwealth's control and despite its due diligence.'" Roles , 116 A.3d at 125. Additionally, "delay occasioned by the court's unavailability is usually excusable. However, the Commonwealth may, under some circumstances (e.g. a prolonged judicial absence), have a duty to seek other courtrooms to try the case. The extent of this duty depends on the specifics of each case." Commonwealth v. Riley , 19 A.3d 1146, 1149 (Pa.Super.2011). Due diligence is a fact-specific concept to be determined on a case-by-case basis. It requires the Commonwealth to put forth a reasonable effort but does not demand perfect vigilance or punctilious care. Commonwealth v. Claffey , 80 A.3d 780, 786 (Pa.Super.2013). The Commonwealth bears the burden of demonstrating that it exercised due diligence by a preponderance of the evidence. Commonwealth v. Bradford , 46 A.3d 693, 701 (Pa.2012).
The standard of review relating to the application of Rule 600 is "whether the trial court abused its discretion. Our scope of review is limited to the evidence on the record of the Rule 600 evidentiary hearing and the findings of the trial court. We must view the facts in the light most favorable to the prevailing party." Commonwealth v. Malgieri , 889 A.2d 604, 606 (Pa.Super.2005).
The trial court comprehensively explained the reasons for each continuance in Piergrossi's case between his arrest on June 18, 2012 and his trial on February 9-10, 2015. Pa.R.A.P. 1925 Opinion, at 3-7 (attached). The court denied Piergrossi's Rule 600 motion by determining that only 135 days during this time period were neither excusable nor excludable:
A criminal complaint in the instant matter was filed June 18, 2012[;] therefore, for purposes of Rule 600, the mechanical run date was June 18, 2013. Jury selection began on February 9, 2015, 966 days after the filing of the complaint. However, the bulk of this delay was attributable to [Piergrossi's] medical condition, the unavailability of defense counsel, and a backlog of the Court's docket ... No evidence was presented to indicate that the Commonwealth was unprepared for trial. The Assistant
District Attorney admitted 39 emails detailing her communications with witnesses, defense counsel and the Court attempting to bring this case to trial. Additionally, there was no prolonged judicial absence triggering a duty on the part of the Commonwealth to seek another courtroom in which to try this case ...Pa.R.A.P. 1925 Opinion, at 14-15. Having reviewed the record of the Rule 600 evidentiary hearing and the trial court's findings, we conclude that the trial court's analysis is correct, and that it properly exercised its discretion in denying Piergrossi's Rule 600 motion. Piergrossi's second issue on appeal is devoid of merit.
For purposes of Rule 600, the only time that is not excludable or excusable appears to be 135 days (98 days from the date of arrest (6/18/12) until the first pretrial conference (9/24/12) and 37 days from the time the case was placed on the trial list (11/13/12) until the first trial listing (12/20/12)). Therefore, 831 days are excludable or excusable based on [Piergrossi's] medical condition, defense counsel's schedule and the Court's unavailability and not on a failure of the Commonwealth to exercise due diligence. Therefore, the adjusted run date is September 27, 2015 (831 days from the mechanical run date of June 18, 2013). Trial commenced on February 9, 2015, well before the adjusted run date.
The trial court added that there was no Rule 600 violation based on alleged defects in Piergrossi's arraignment, because these defects were at most harmless errors. Pa.R.A.P. 1925 Opinion, at 12. We agree with the trial court based on our reasoning on pages 3-7, supra.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/11/2016
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