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Full Opinion
J. S69024/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
NANCY MARIA HAAS, :
:
APPELLANT : No. 1858 MDA 2015
Appeal from the Judgment of Sentence May 27, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005471-2011
BEFORE: STABILE, DUBOW, and PLATT*, JJ.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 26, 2017
Appellant Nancy Maria Haas appeals from the Judgment of Sentence
entered by the York County Court of Common Pleas after a jury found her
guilty of Theft by Unlawful Taking, 18 Pa.C.S. § 3921(a). She challenges the
weight and sufficiency of the evidence, certain evidentiary rulings, and the
denial of her Pa.R.Crim.P. 600 Motion. After careful review, we affirm.
The factual and procedural history of this case, as gleaned from the
certified record, is as follows. In August 2007, Jason Piper hired Appellant to
work as his companiesâ part-time bookkeeper at $13.00 per hour, for up to
*
Retired Senior Judge Assigned to the Superior Court.
J. S69024/16
20 hours per week.1 Appellantâs initial responsibilities included balancing the
company checkbook, and entering expenses and income in a ledger before
transferring the data to QuickBooks bookkeeping software. Shortly after she
was hired, Piper agreed to have Appellant process the payroll for the
companyâs then-three employees, a task that he had previously been paying
an outside accountant to handle.2 Appellant and Piper were the only
employees who had access to the computers containing the payroll software.
In 2008, Appellant began working from home, coming into the office
once a week to pick up receipts and other paperwork needed to keep the
books. Although Appellant was supposed to bring files back to the office,
she never did.
In August 2009, Appellant informed Piper that she needed a full-time
job because she was not making enough money working part-time. Piper
agreed to keep her on as an independent contractor and thereafter paid her
by company check based on her submitted invoices. Appellant was no
longer entitled to receive direct deposit payroll payments.
In November 2009, Piper received a letter from the IRS informing him
that his payroll taxes, for the period from September 30, 2007, to December
1
Piper had three companies, Myndsi Design, Inc., MediaLion, Inc., and
Arthouse Lounge.
2
That job entailed Appellantâs recording employeesâ timesheets in
QuickBooks and electronically transferring the information to Intuit
Corporation, a payroll company, which disbursed payroll funds via direct
deposit beginning in October 2007.
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31, 2008, were delinquent by $140,622.92. Piper subsequently received a
warning from the IRS that it would freeze his bank accounts. Appellant had
previously assured Piper that she had set up payroll taxes to be paid through
the payroll program, and told him that the IRS letter was a mistake and that
she would look into it. In 2010, the bank informed Piper that the IRS had
placed a levy on the Myndsi account due to the delinquent payroll taxes.
Piper contacted the IRS and Intuit and began working with his
accountant, Jeanne Yeaple, to review the companyâs financial records.
Yeapleâs work showed that between 2008 and 2010, unauthorized electronic
money transfers totaling over $84,000 were directed into accounts at PNC,
M&T Bank, PSECU, Metabank, and Wachovia Bank. In addition, Intuit
forwarded documentation showing the transfer of significant amounts of
money from company accounts into Appellantâs personal accounts, including
unauthorized direct deposits after Appellant became an independent
contractor.
Piper contacted the Fairview Township Police Department (âFTPDâ).
Chief Jason Loper conducted an investigation, taking Piperâs statement,
reviewing Piperâs companiesâ bank statements, and reviewing Yeapleâs work.
On March 3, 2011, the FTPD filed a criminal complaint against Appellant,
charging her with Theft by Unlawful Taking.
The FTPD arrested Appellant on March 9, 2011, and Magisterial District
Judge Scott J. Gross held a preliminary arraignment. On March 10, 2011,
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MDJ Gross issued subpoenas to obtain information from the financial
institutions into which the unauthorized deposits had been made. Following
numerous continuances requested by Appellant, MDJ Gross held Appellantâs
preliminary hearing on August 31, 2011. Appellant waived arraignment
scheduled for October 14, 2011, and the court scheduled a pre-trial
conference for November 17, 2011.
The court continued the case several times at Appellantâs request. 3 On
September 20, 2012, Appellant filed an Omnibus Pre-trial Motion for Relief
seeking, inter alia, dismissal based on the issuance of subpoenas as
investigatory tools, as well as quashal of the subpoenas. On October 25,
2012, MDJ Gross issued search warrants for the same banking institutions
which had previously been served subpoenas.
Appellant filed more omnibus pretrial motions seeking, inter alia, the
suppression of the bank records obtained by investigators pursuant to the
subpoenas and the later-issued search warrants. After a hearing on
December 19, 2012, the trial court quashed the subpoenas, finding that
because they had been issued prior to the commencement of formal
proceedings, the subpoenas were invalid. However, applying the
independent source doctrine, the court denied Appellantâs request to
3
See N.T. Pre-trial Conf., 9/20/12, at 3; N.T. Pre-trial Conf., 7/19/12, at 4;
N.T. Pre-trial Conf., 4/19/12, at 3; Order, dated 3/22/12 (filed 4/17/12)
(noting Appellantâs agreement to waive all Rule 600 time); N.T. Pre-trial
Conf., 1/5/12, at 2; Order, dated 10/25/11.
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suppress the information acquired by the later-issued search warrants,
noting that the court had approved the search warrants based on
information in the affidavits of probable cause that did not include any
reference to the information obtained by the subpoenas. See Trial Court
Op., dated March 14, 2013.
As part of discovery, the Commonwealth provided Appellant with
copies of two hard drives from the PCs on which Piperâs companies
maintained their financial information. At a status conference on March 17,
2014, Appellantâs counsel requested âa separate hard drive in the possession
of [Piper that Appellantâs forensic computer expert believed] may have been
used as a server.â N.T. Status Hearing, 3/17/14, at 4. The Commonwealth
indicated that there was no server and counsel was likely referring to Piperâs
MacIntosh computer. Piper then indicated that he would have the âserverâ
at the FTPD within two days from the hearing. Id. at 9. On March 19,
2014, Piper provided the hard drive from his MacIntosh computer to the
Commonwealth.
On April 14, 2014, Appellant filed a Rule 600 Motion, which the court
denied on August 1, 2014.
Appellantâs jury trial ran from March 2, 2015, through March 9, 2015.
Piper, James Bull (Piperâs former employee), Chief Loper, Mark Baker (a
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detective certified as a forensic computer expert), and Michael Haas
(Appellantâs former husband), testified.4
The Commonwealth proffered demonstrative charts and graphs
compiled by Chief Loper showing, inter alia, how much and when Appellant
had received money from both the Myndsi and MediaLion accounts via
checks and unauthorized direct deposits, as well as a comparison between
the full-time pay of James Bull and Appellantâs âpart-timeâ pay. Appellantâs
counsel objected, contending that because he was âjust getting [the charts]
now,â he would have to do the math himself while listening to the witnessâs
testimony. N.T. Trial, 3/2/15-3/9/15, at 528-29. The trial court admitted
the charts, noting that Appellantâs counsel could review the charts in the
evening and correct any errors the next day. Id. at 529.
The following day, Chief Loper testified regarding the Intuit,
QuickBook, and bank documents that showed that Appellant had made
unauthorized deposits into her bank accounts numerous times a month,
numerous times a week in some instances, and numerous times a day in
one instance. See, e.g., N.T. Trial, at 539-48; 550-51. He testified that,
relative to what her $13.00 hourly pay and reasonable hours would have
4
Michael Haas read portions of a deposition transcript that was taken during
the coupleâs divorce proceeding in which Appellant stated that she had taken
âloansâ from Piper for which there was no documentation. N.T. Trial, at 448.
He also testified that Appellant had taken a âloan for about $5,000â from
Piper to give to an attorney to whom he himself owed money in an unrelated
case. Id. at 454.
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provided, the documents showed that Appellant had wrongfully taken
$86,737.47. After Chief Loper had provided testimony using the charts,
Appellantâs counsel renewed his objection, stating
I just want to renew my objection based on the chart, the
testimony was that these numbers are inaccurate because they
are reversed and this is what created the chart. That means
that the chart is inaccurate.
See id. at 549.5 The court overruled the objection.
Appellantâs counsel strenuously cross-examined Chief Loper on all
aspects of his testimony and the demonstrative evidence.
Piper testified extensively regarding Appellantâs pay, the amount of
work she did for his companies, the unauthorized transactions, and the
ruinous effect of her actions on his companiesâ existence. See, e.g., N.T.
Trial, at 195-96 (describing his frustration at being âlocked out of the
computer programsâ while trying âto stop hemorrhaging the moneyâ from
what âwas a sinking ship basically.â). Piper testified further regarding the
companiesâ computers, and his attempts to obtain records from Appellant.
On cross-examination, he stated that there was âa serverâ that connected
the companiesâ Macintosh computers that were used by the freelance artists,
but stated that there was no server for the PCs on which the bookkeeping
software was kept. N.T. Trial at 308. When asked where that server âis
5
Prior to jury deliberations, Appellantâs counsel again objected to the
demonstrative evidence going to the jury based on an allegation of
inaccurate information. See N.T. Trial, at 799-800.
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now,â Piper responded, âI believe that was the one that I turned over to the
police.â Id. Appellantâs counsel did not cross-examine Piper regarding his
use of the word âserver.â6
On March 9, 2015, the jury found Appellant guilty of theft by unlawful
taking in an amount greater than $2,000. On May 27, 2015, at Appellantâs
sentencing hearing, Appellantâs attorney stated that Appellant understood
that restitution would be ordered, but that âat one point we will argueâ that
the amount of restitution âshould be lower than the amount that was taken.â
See N.T. Sentencing, 5/27/15, at 10. The court sentenced Appellant to six
to twenty-three monthsâ incarceration in York County Prison followed by five
yearsâ probation. The court also ordered Appellant to pay $84,294.07 in
restitution.
Appellant filed a Post-Sentence Motion, seeking (1) a hearing to
determine the appropriate amount of restitution, averring that there had
been no finding of fact with regard to the amount of restitution necessary,
and the court had not made a determination as to Appellantâs ability to pay
restitution; and (2) a new trial because the Commonwealth had precluded
Appellant from obtaining a âserver by any meansâ and âcould not have
6
Chief Loper testified during trial that he did not recall Piper saying that he
had a server. N.T. Trial, at 606. Loper also testified that he did not know if
the Commonwealthâs forensic computer investigators had found an email
server on either of the hard drives. See id. at 608.
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learned of the existence of the server at any time prior to the statement of
Piper at trial.â Post-Sentence Motion, filed 6/8/15, at œœ 42, 48.
At a hearing on the Motion, the Commonwealth directed the courtâs
attention to its Exhibits numbered 36 and 41, which showed, respectively,
(1) a breakdown of every deposit that went from Piperâs accounts into
Appellantâs accounts; and (2) an estimate of the restitution amount. The
Commonwealth also noted that there was âample testimony presented at the
time of trial as far as the amount of the thefts that occurred in this case[.]â
N.T. Post-Sentence Hearing, 8/4/15, at 17.
On October 14, 2015, the trial court denied Appellantâs post-trial
Motion. Appellant timely appealed. Both Appellant and the trial complied
with Pa.R.A.P. 1925.
Appellant presents the following issues in her brief for our review:
I. The Trial Court committed an abuse of discretion when it
failed to dismiss the charges against the Defendant for the
Commonwealthâs failure to exercise due diligence in
bringing the Defendant to a speedy trial guaranteed by
Rule 600 of the Pennsylvania Rules of Criminal Procedure
and the Constitutions of the Commonwealth and the United
States.
II. The Trial Court erred when it failed to suppress evidence
obtained in violation of the Defendantâs right to privacy,
guaranteed by the Article I, Section 8 of the Pennsylvania
Constitution. The Defendant had a constitutional right to
privacy in her bank records. See Commonwealth v.
DeJohn, 486 Pa. 32, 44 (1979). As such, a warrant
supported by probable cause should have been obtained
prior to the seizure of the Defendantâs bank records. In
this case, police improperly and unlawfully used a
subpoena to obtain the records. This action clearly
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J. S69024/16
violated the warrant requirement and the Trial Court
should have remedied this violation with suppression.
Furthermore, the Commonwealth should not have been
given the opportunity to cure its wrongdoing because the
exclusionary rule aims to deter the type of police
misconduct which was present in this case.
III. The Trial Court erred when it admitted irrelevant and
misleading exhibits at trial, over the Defendantâs
objections because the exhibits contained inaccurate
information, prejudicial to the Defendant.
IV. The Trial Court erred when it allowed the use of special
verdict slips, contrary to established precedent in this
Commonwealth.
V. The verdict of guilty is against the weight of the evidence.
VI. The Trial Court abused its discretion when it allowed, and
prohibited the use of jury instructions to cure, testimony of
government witnesses based upon discovery not provided
to the Defendant.
VII. The Commonwealth failed to present sufficient evidence to
prove each element of the offense beyond a reasonable
doubt.
VIII. The Trial Court erred in awarding restitution without
holding a hearing to determine that appropriate amount of
Defendantâs ability to pay.
Appellantâs Brief at 10 (verbatim but reordered).
Issue I â Rule 600
We first address Appellant's Pa.R.Crim.P. 600 issue because, if
meritorious, Appellant would be entitled to discharge, which would render
her remaining issues moot. We analyze the denial of a Rule 600 discharge
motion pursuant to the following standard of review:
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J. S69024/16
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. Armstrong, 74 A.3d 228, 234 (Pa. Super. 2013).
Under Rule 600, â[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.â Pa.R.Crim.P. 600(A)(2)(a). â[P]eriods 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.â
Pa.R.Crim.P. 600(C)(1). âAny other periods of delay shall be excluded from
the computation.â Id.
To determine whether dismissal is required for a violation of Rule 600,
âa court must first calculate the âmechanical run date,â which is 365 days
after the complaint was filed.â Commonwealth v. Goldman, 70 A.3d 874,
879 (Pa. Super. 2013). Thereafter, an adjusted Rule 600 run date is
computed, and the defendant is entitled to discharge under Rule 600 only
where trial started after the adjusted run date. Id. (noting that Rule 600
âprovides 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
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J. S69024/16
subtracting all excludable and excusable time.â). The adjusted run date is
calculated by adding to the mechanical run date both excludable and
excusable delay. Id. Excludable delay is delay caused by the defendant or
his lawyer. Id. âExcusable delay is delay that occurs as a result of
circumstances beyond the Commonwealth's control and despite its due
diligence.â Id. Excusable delay encompasses a wide variety of situations
where the postponement of trial was outside of the Commonwealth's control.
Armstrong, supra at 236. Additionally, â[d]ue 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.â Id. at
236 (citation omitted).
Finally, we are mindful that Rule 600 not only guards a defendant's
speedy trial rights, but also protects society's interest in prosecuting crime.
â[T]he administrative mandate of Rule 600 was not designed to insulate the
criminally accused from good faith prosecution delayed through no fault of
the Commonwealth.â Id. at 235. Thus, if âthere 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.â Id.
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In the instant case, the Commonwealth filed the complaint on March 3,
2011, and the mechanical run date was, thus, March 2, 2012.7 From March
3, 2011, until the filing of the Rule 600 Motion on April 14, 2014, 1,128 days
elapsed, thus exceeding the 365-day period provided in Rule 600.
In its Opinion issued in support of its Order denying Appellantâs Rule
600 motion, the trial court provided a detailed recitation of the delays
attributable to Appellant before concluding that âa total of 707 days are
attributable to [Appellant] or her counsel, and therefore, are excludable
under Rule 600.â See Trial Court Op., dated 8/1/14,at 5-6.
In analyzing whether the Commonwealth was entitled to any
excusable time, the court noted that Appellant had conceded that the
Commonwealth had acted with due diligence during the period from
February 10, 2014, to April 14, 2014, which accounted for 63 days. The
court also found that an additional 76 days, from March 15, 2013, to May
30, 2013, was excusable due to discovery glitches, opining that
communications between Appellantâs counsel and the Commonwealth âshow
a reasonable effort to comply with [Appellantâs] discovery request and to
keep the case moving forward. The court concludes that these 76 days are
excusable time for the Commonwealth.â Id. at 7.
The court, thus, concluded that of the 1,128 days that had elapsed,
707 days were attributable to Appellant and 139 days were excusable. After
7
This calculation accounts for the 2012 leap year.
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J. S69024/16
deducting these sums, 282 days had elapsed before Appellant filed her Rule
600 Motion on April 14, 2014. As the trial court correctly noted, â[t]his time
period falls within the 365-day period enunciated in Pa.R.Crim.P.
600(A)(2)(a).â
Appellant argues that an additional 39 days should be held against the
Commonwealth because of the time that elapsed between the date the
criminal complaint was filed and the first date scheduled for the preliminary
hearing. See Appellantâs Brief at 25. The Commonwealth is not responsible
for that delay as the courtâs schedule is a matter outside the control of the
Commonwealth. Accordingly, that 39-day delay is excusable âas a result of
circumstances beyond the Commonwealth's control.â Goldman, supra at
879.
Appellant also argues that discovery delays were not excusable. The
trial court appropriately addressed this contention in its Opinion supporting
the denial of Appellantâs Rule 600 Motion, and we adopt its analysis as our
own. See Trial Court Op., dated 8/1/14, at 7.8 Our review of the record
supports the trial courtâs conclusions, and in accordance with relevant
statutory and case law, the trial court properly exercised its discretion in
8
Appellant also asserts that the Commonwealth requested the continuance
of the first preliminary hearing date so an additional 22 days is not
excusable. See Appellantâs Brief at 25. Appellant is wrong. The docket
explicitly indicates that Appellantâs attorney requested the continuance
because Appellant was ânot ready.â See Docket Transcript.
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denying Appellantâs Rule 600 Motion to Dismiss. Accordingly, Appellantâs
first issue is without merit.
Issue II â Suppression
In this issue, Appellant challenges the trial courtâs decision to allow the
admission of her bank records obtained pursuant to search warrants.
Appellant avers that because she âhad a constitutional right to privacy in her
bank records,â the trial court erred in failing to suppress the bank records
because âpolice improperly and unlawfully used a subpoena to obtain the
records.â Appellantâs Brief at 11. Appellant also argues that because the
search warrant did not issue until after the Commonwealth already had the
bank records in its possession, the trial court erred in concluding that âlater-
obtained warrants cured this defect under the independent source doctrine.â
Id. at 17. She concludes that âthe Commonwealth should not have been
given the opportunity to cure its wrongdoing because the exclusionary rule
aims to deter the type of police misconduct which was present in this case.â
Id. at 11.
Our review of the denial of a suppression motion âis limited to
determining whether the suppression courtâs factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
correct.â Commonwealth v. Stem, 96 A.3d 407, 409 (Pa. Super. 2014)
(citation omitted). Our scope of review is limited to the evidence presented
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at the suppression hearing. In re L.J., 79 A.3d 1073, 1080 (Pa. 2013)
(citation omitted).
The âexclusionary rule in Pennsylvania has consistently served to
bolster the twin aims of Article I, Section 8 [of the Pennsylvania
Constitution]; to-wit, the safeguarding of privacy and the fundamental
requirement that warrants shall only be issued upon probable cause.â
Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa. 1991). The
independent source doctrine applicable in Pennsylvania provides that â[i]f
the prosecution can demonstrate that the allegedly tainted evidence was
procured from an independent originâa means other than the tainted
sourcesâthe evidence will be admissible.â Commonwealth v. Mason, 637
A.2d 251, 254 (Pa. 1993) (quoting Commonwealth v. Melilli, 55 A.2d
1254, 1262 (Pa. 1989)).
In Commonwealth v. McEnany, 667 A.2d 1143, 1148â49 (Pa.
Super. 1995), this Court reviewed and applied the independent source
doctrine in a case where a subpoena had been issued prior to formal
proceedings and the affidavit of probable cause supporting a subsequently-
issued search warrant was not based on any information obtained through
the subpoena. We found that âalthough the subpoena was issued
improperly, the [ ] records [at issue] were obtained lawfully pursuant to an
independent search warrant.â Id. at 1149.
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The trial court in the instant case concluded that the information
contained in the affidavits of probable cause supporting the search warrants
was independent of the information obtained from the banksâ responses to
the improper subpoenas. We agree.
When Piper first alerted the FTPD to Appellantâs misconduct, he
provided the FTPD with his business records and Yeapleâs review showing a
plethora of unauthorized deposits from company accounts to Appellantâs
accounts. That information supported the issuance of both the subpoenas
and the search warrants. The affidavit of probable cause supporting the
search warrants did not contain any additional information. The search
warrant was issued on information that Chief Loper gleaned solely from the
records and statement provided by Piper. See Trial Court Op., dated
3/14/13, at 9. Appellant does not dispute this fact. In fact, Appellant does
not address this fact at all.
Accordingly, as in McEnany, the information obtained from the
properly-issued search warrants was admissible under the independent
source doctrine. Our review of the record supports the suppression courtâs
factual findings, and âthe legal conclusions drawn from those facts are
correct.â Stem, supra, at 409. Appellantâs second issue, thus, fails.
Issue III â Admission of Demonstrative Evidence
Appellant next challenges the trial courtâs admission of demonstrative
charts and graphs prepared by Chief Loper. She avers that the charts were
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inaccurate and based upon faulty assumptions rather than any evidence, and
she âobjected to the introduction of this evidence as to relevance because it
was inaccurate and therefore would be misleading to the jury.â Appellantâs
Brief at 29.
Our review of a trial courtâs ruling on the admissibility of evidence is
well-established:
The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness,
or partiality, prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015) (citations
and quotation marks omitted).
When considering the admissibility of demonstrative evidence, our
Supreme Court has explained:
[A] trial court may admit demonstrative evidence whose
relevance outweighs any potential prejudicial effect.
Commonwealth v. Reid, [811 A.2d 530, 552 (Pa. 2002)]. The
offering party must authenticate such evidence. âThe
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its
proponent claims.â Pa.R.E. 901(a). Demonstrative evidence
may be authenticated by testimony from a witness who has
knowledge âthat a matter is what it is claimed to be.â Pa.R.E.
901(b)(1). Demonstrative evidence such as photographs, motion
pictures, diagrams, and models have long been permitted to be
entered into evidence provided that the demonstrative evidence
fairly and accurately represents that which it purports to depict.
See Nyce v. Muffley, [119 A.2d 530, 532 (Pa. 1956)].
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The overriding principle in determining if any evidence, including
demonstrative, should be admitted involves a weighing of the
probative value versus prejudicial effect. We have held that the
trial court must decide first if the evidence is relevant and, if so,
whether its probative value outweighs its prejudicial effect.
Commonwealth v. Hawk, [709 A.2d 373, 376 (Pa. 1998)].
This Commonwealth defines relevant evidence as âhaving any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.â Pa.R.E.
401. Relevant evidence may nevertheless be excluded âif its
probative value is outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.â Pa.R.E. 403.
Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006).
We first note that, contrary to Appellantâs averment, she did not
specifically object to the admission of the demonstrative evidence based on
its relevancy. Accordingly, any attempt now to assert a relevancy challenge
is waived. See Commonwealth v. Stoltzfus, 337 A.2d 873, 881 (Pa.
1975) (stating: âIt has long been the rule in this jurisdiction that if the
ground upon which an objection is based is specifically stated, all other
reasons for [the evidenceâs] exclusion are waived, and may not be raised
post[-]trialâ).
With respect to Appellantâs objection that the evidence contained
inaccurate information and, therefore, should have been excluded, the trial
court stated in its Pa.R.A.P. 1925(a) Opinion:
Due to the complexity of information we were asking the jury to
digest, we believed that the objected-to exhibits would be
helpful to the jury and, so, felt their relevance outweighed any
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prejudice. It cannot be denied that while discussing one of the
charts that included deposits into the Appellantâs account, it was
revealed that the chart included deposits that were reversed by
the bank and were, therefore, no monies obtained by the
Appellant; however, the transactions had gone through (N.T.,
3/4/15, at 547). Defense counsel objected that the chart was
presenting inaccurate information. Id., at 549. Commonwealth
noted that, âthe bottom line is that all those withdrawals were
attempted regardless of whether they were reversed . . . .â Id.
We agreed with the Commonwealth that the objected-to chart
depicted what the Commonwealth said it did.
If the Superior Court disagrees then we would opine that this
was harmless error. The jury heard Chief Loper explain that
specific deposits represented in his chart had been reversed.
Moreover, the reversed deposits were but small amounts in a
much larger picture presented by the Commonwealth. [T]he
jury was clearly informed that the reversed deposits are not
alleged to have been retained by the Appellant[,] and Chief
Loperâs testimony clearly subtracted them from the total amount
deposited by Intuit from the victimâs account into the
Appellantâs.
Trial Court Op., dated 1/7/16 at 15-16.
As noted above, Chief Loper testified to the contents of the charts, and
Appellantâs counsel conducted extensive cross-examination to bring any
inaccuracies to the juryâs attention. The jury was, thus, fully apprised of the
charts and their inaccuracies. In light of the extensive testimony pertaining
to the demonstrative evidence, it is pure speculation on Appellantâs part to
assert that the jury was misled by the charts. After review of the record and
relevant case law, we conclude that the trial court did not abuse its
discretion in admitting the demonstrative evidence.
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J. S69024/16
Issue IV â Special Verdict Slips
Appellant avers that the trial court erred in âallow[ing] special verdict
slips to go to the jury to determine the value of the alleged stolen property.â
Appellantâs Brief at 33. This issue is waived because Appellant failed to raise
it in her Pa.R.A.P. 1925(b) statement, and raises it for the first time in her
appellate brief. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(3)(iv);
Commonwealth v. Hill, 16 A.3d 484, 491 (Pa. 2011) (noting that âany
issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.â
(citation and emphasis omitted)).
Issue V â Weight of the Evidence
Appellant next challenges the weight given the testimony presented by
Chief Loper. In a one-paragraph critique containing no citations to the
record and one citation pertaining to the trial courtâs standard of review,
Appellant avers that Chief Loper âbased much of his conclusions on
assumptions.â Appellantâs Brief at 33. She then recites what Chief Loper
allegedly failed to do before concluding that the verdict was against the
weight of the evidence.
Appellant has failed to develop her argument and does not provide
citations to the record and relevant supporting authority. See Pa.R.A.P.
2119. Her failure to comply with our rules of appellate procedure pertaining
to proper briefing renders this claim waived. See Pa.R.A.P. 2119(a), (d);
Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998) (finding
- 21 -
J. S69024/16
claim waived where there was a âlack of factual background and citation to
the record, coupled with the anemic state of the argument portion of
Appellant's brief[ ]â); Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super.
2014), appeal denied, 110 A.3d 998 (Pa. 2014).
Even if this issue were not waived, we would conclude that it has no
merit. As we have oft noted, âa true weight of the evidence challenge
concedes that sufficient evidence exists to sustain the verdict but questions
which evidence is to be believed.â Commonwealth v. Morgan, 913 A.2d
906, 909 (Pa. Super. 2006) (citation omitted). As such, an allegation that a
âverdict was against the weight of the evidence is addressed to the
discretion of the trial court.â Commonwealth v. Diggs, 949 A.2d 873, 879
(Pa. 2008). Where the trial court has ruled on a weight claim, an appellate
court's role is not to consider the underlying question of whether the verdict
is against the weight of the evidence. Rather, â[our] review is limited to
whether the trial court palpably abused its discretion in ruling on the weight
claim.â Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2012)
(citation omitted). â[T]he weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court cannot
substitute its judgment for that of the finder of fact.â Id.
- 22 -
J. S69024/16
âThe trial courtâs denial of a motion for a new trial based on a weight
of the evidence claim is the least assailable of its rulings.â Diggs, supra at
879-80.
In the instant case, the trial court aptly noted:
As we state in almost every appeal vis-Ă -vis a weight of the
evidence challenge, it is true that there are certainly pieces of
evidence which arguably undermine [the] Commonwealthâs
cases; however, the test is not whether there is any evidence
that goes against [the] Commonwealthâs assertions. Rather, this
[c]ourt is to examine whether the juryâs verdict was âso contrary
to the evidence as to shock oneâs sense of justice.â This [c]ourtâs
sense of justice was not shocked. We heard the same testimony
as the jurors and were not shocked.
Trial Court Op., 1/7/16, at 19.
The trial court properly exercised its discretion in denying Appellantâs
weight claim. Accordingly, even if it were not waived, this issue would fail.
Issue VI â Admission of Testimony/Discovery Violation
Appellant next avers that the trial court erred by allowing a
Commonwealth witness to testify to evidence that was allegedly in the
possession of the Commonwealth but not turned over to Appellant, namely a
âserver.â Without citation to the record or relevant authority, she avers that
â[t]he Commonwealthâs statement that there is no server is a discovery
violation that had the effect of prejudicing [Appellant] . . . .â Appellantâs
Brief at 36. She contends that âsince there appears to be a factual dispute
as to whether the Commonwealth provided a server or merely a hard drive,
the [t]rial [c]ourt should have ordered an evidentiary hearing on that matter
- 23 -
J. S69024/16
after the filing of [Appellantâs] post-sentence motions.â Appellantâs Brief at
36-37. She also avers that the trial court could have cured the violation
with her suggested jury instruction. See id. at 37-8, citing N.T.
Contrary to her characterization, Appellant does not present a
challenge to the admission of testimony based on allegedly undisclosed
evidence. In fact, Appellant points to no specific witness or testimony that
was admitted based on the allegedly undisclosed âserver.â Rather, Appellant
is asserting a discovery violation. We conclude the issue is waived and,
moreover, meritless.
As with the prior claim, Appellantâs failure to comply with our briefing
requirements set forth in our rules of appellate procedure, by failing to cite
to supporting authority and the record, renders this claim waived. See
Pa.R.A.P. 2119; Miller, supra.
Moreover, even if the issue were not waived, the trial court provided a
thorough treatment of this issue in its Opinion denying Appellantâs Post-
Sentence Motions, which, in the absence of waiver, we would adopt as our
own to support our conclusion that this issue lacks merit. See Trial Court
Op., dated 10/14/15, at 4-5 (where the trial court accurately detailed the
facts pertaining to the alleged âserver,â that we also set forth above, before
correctly concluding that there was no discovery violation because Piper
âappeared ⌠to be testifying aboutâ a third Macintosh computer that he
- 24 -
J. S69024/16
referred to as a âserverâ about which âthe defense was plainly aware [ ] and
had opportunity to inspect following the March 17, 2014 hearing.â).
We also conclude that, because Appellant failed to develop her jury
instruction challenge beyond a bare assertion of error, that challenge is also
waived. See Coulter, supra.
Issue VII â Sufficiency of the Evidence
Appellant next challenges the sufficiency of the evidence supporting
the juryâs verdict. She states, in a self-serving, one-paragraph recitation,
that all of Piperâs business records were not produced, and Chief Loper
âsimply took the limited number of financial documents provided by Mr.
Piper, and compared them to payments deposited into [Appellantâs]
accounts,â then made an âassumptionâ for which âthere was no evidence
presentedâ to support a conclusion that Appellant âwas depositing funds into
her account which she did not earn.â Appellantâs Brief at 38. Appellantâs
argument is waived.
Appellant was convicted of Theft by Unlawful TakingâMovable
Property, which provides in relevant part: â[a] person is guilty of theft if he
unlawfully takes, or exercises unlawful control over, movable property of
another with intent to deprive him thereof.â 18 Pa.C.S. § 3921(a).
Appellant does not indicate which element of the crime she believes
was supported by insufficient evidence. Her failure to discuss the elements
of the crime and which of those elements the Commonwealth did not prove
- 25 -
J. S69024/16
renders this claim waived. See Commonwealth v. McDonald, 17 A.3d
1282, 1286 (Pa. Super. 2011) (citing Pa.R.A.P. 2119(a)); Commonwealth
v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (finding âwhere an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waivedâ).
Moreover, even if Appellant had not waived the sufficiency challenge,
the extensive testimony and evidence presented at trial, which the jury
found to be credible, renders her challenge meritless. See N.T., 3/2/15-
3/9/15. See also Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.
Super. 2005) (noting that an appellate court may not substitute its
judgment if the record contains support for the convictions).
Issue VIII â Restitution
Appellant next challenges the legality of the restitution ordered,
averring that it is âbased on speculation,â not on âfindings of fact ⌠as to the
amount of restitution necessary.â Appellantâs Brief at 40-41. She argues
that before ordering restitution in the amount of $84,294.07, the trial court
should have held a separate hearing to determine if that was an appropriate
amount of restitution, and whether she had the ability to pay. Id. We
disagree, and conclude that this issue is without merit.
Initially, we note that:
In the context of criminal proceedings, an order of restitution is
not simply an award of damages, but, rather, a sentence. An
- 26 -
J. S69024/16
appeal from an order of restitution based upon a claim that a
restitution order is unsupported by the record challenges the
legality, rather than the discretionary aspects, of sentencing. The
determination as to whether the trial court imposed an illegal
sentence is a question of law; our standard of review in cases
dealing with questions of law is plenary.
Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa. Super. 2013) (citation
omitted).
Our crimes code mandates the imposition of restitution in cases in
which property has been stolen. In relevant part, it provides:
§ 1106. Restitution for injuries to person or property
(a) General rule.--Upon conviction for any crime wherein
property has been stolen, converted or otherwise unlawfully
obtained, or its value substantially decreased as a direct result of
the crime, or wherein the victim suffered personal injury directly
resulting from the crime, the offender shall be sentenced to
make restitution in addition to the punishment prescribed
therefor.
***
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of
the defendant, so as to provide the victim with the fullest
compensation for the loss . . . .
***
(2) At the time of sentencing the court shall specify the amount
and method of restitution. In determining the amount and
method of restitution, the court:
(i) Shall consider the extent of injury suffered by the victim,
the victim's request for restitution as presented to the district
attorney in accordance with paragraph (4) and such other
matters as it deems appropriate.
- 27 -
J. S69024/16
****
18 Pa.C.S. § 1106 (emphasis added).
The record must support the amount of restitution ordered.
Commonwealth v. Boone, 862 A.2d 639, 643 (Pa. Super. 2004). This
Court has held:
When fashioning an order of restitution, the lower court must
ensure that the record contains the factual basis for the
appropriate amount of restitution. Commonwealth v. Pleger,
934 A.2d 715, 720 (Pa. Super. 2007). The dollar value of the
injury suffered by the victim as a result of the crime assists the
court in calculating the appropriate amount of restitution. Id.
The amount of the restitution award may not be excessive or
speculative. Commonwealth v. Rush, 909 A.2d 805, 810 (Pa.
Super. 2006)[ ]. It is well-settled that â[a]lthough it is
mandatory under section 1106(c) to award full restitution, it is
still necessary that the amount of the âfull restitutionâ be
determined under the adversarial system with considerations of
due process.â Commonwealth v. Ortiz, 854 A.2d 1280, 1282
(Pa. Super. 2004).
Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010).
Appellant here does not cite or otherwise acknowledge the applicability
of the mandatory statute pertaining to restitution. Rather, she cites to, inter
alia, Pa.R.Crim.P. 706 and Commonwealth v. McLaughlin, 574 A.2d 610,
617 (Pa. Super. 1990), to support her averment that â[i]n determining the
amount of restitution, the court must consider the defendantâs ability to
pay.â Appellantâs Brief at 39. Her reliance on these authorities is misplaced.
Rule 706 pertains to fines and costs, not restitution, and is thus,
inapplicable here. McLaughlin involved restitution ordered at the courtâs
discretion after review of the pre-sentence report in connection with a third-
- 28 -
J. S69024/16
degree murder conviction, not a case involving stolen property, as in the
instant case where restitution is mandatory.
Moreover, as noted supra, there was extensive testimony and other
evidence submitted at Appellantâs trial. At sentencing, the court noted that
it had reviewed the pre-sentence investigative report and indicated that it
ordered the restitution amount based on the trial testimony and record
documents. See N.T. Sentencing, 5/27/15, at 15. In denying Appellantâs
post-sentence motion seeking a restitution hearing, the trial court opined:
With the above recitation of the basics of law regarding
restitution, we are left with a fairly straightforward proposition.
As it is the Commonwealthâs burden, what restitution did the
Commonwealth show that there is an entitlement to? At trial,
Chief Loper testified that it was his belief after analyzing the
inordinate number of extravagant checks to the Defendant from
the business accounts of the victim that the Defendant had
wrongfully taken $86,737.47. We note, here, that we imposed
restitution of $84,294.07, which we felt addressed the issues of
sentencing.
We do not believe that the law requires us to compute restitution
down to the exact cent stolen in a case where the Defendantâs
intentional obfuscation makes such an endeavor impossible.
Rather, we seek a factual basis, in the record, upon which we
can, as reliably as possible, fix restitution. We believe that we
did that based upon Chief Loperâs testimony. Moreover, we
remember that the dollar value of injury to the victim only
assists in computing restitution. Having considered the factors
appropriate to sentencing, we decline to grant Defendantâs
motion for a restitution hearing.
Trial Ct. Opinion, dated 10/14/15, at 3. In its Rule 1925(a) Opinion, the trial
court added:
. . . 18 Pa.C.S. § 1106(c)(1) states, in relevant part, that âthe
court shall order full restitution . . . regardless of the current
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J. S69024/16
financial resource of the defendant, so as to provide the victim
with the fullest compensation for the loss.â . . . Chief Loper
detailed how he figured the amount unlawfully taken by [ ]
Appellant from Mr. Piper and we sentenced in an amount slightly
less than that based upon the original charging information. In a
case such as this, the Appellantâs crime is predicated upon
obfuscation that does not readily lend itself to neat valuations of
loss. We have done our utmost to award full restitution without
allowing that award to be excessive or speculative.
Trial Court Op., dated 1/6/16, at 22.
Our review of Section 1106 and relevant case law supports the trial
courtâs denial of Appellantâs post-sentence motion. Because the restitution
amount was âdetermined under the adversarial system with consideration of
due process,â we conclude Appellantâs sentence is legal. Ortiz, supra, at
1282.
Accordingly, in light of our conclusion that Appellantâs issues are either
waived or without merit, we affirm the Judgment of Sentence.9
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2017
9
The parties are instructed to annex the trial courtâs Opinions dated August
1, 2014 (Rule 600 Motion), and October 14, 2015 (Post-Sentence Motion), to
all future filings.
- 30 -
Circulated 12/27/2016 10:14 AM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH
NO. CP-67-CR-5471-2011
v.
NANCY HAAS,
Defendant
COUNSEL OF RECORD:
Kelley L. Nelson, Esquire Joseph D. Caraciolo, Esquire
Assistant District Attorney Counsel for Defendant
OPINION IN SUPPORT OF ORDER
The Defendant filed a motion to dismiss under Pennsylvania Rule of Criminal Procedure 600,
docketed on April 14, 2014. A hearing was held on May 27, 2014, at which time the Court heard
testimony and argument from both parties. At the conclusion of the hearing, the Court took the matter
under advisement. After consideration of all evidence, argument and case law, the Court has DENIED the
Defendant's motion to dismiss. It now issues this opinion in support of that order.
The criminal complaint was filed against the Defendant for theft on March 3, 2011. The
Defendant's preliminary arraignment was held on March 9, 2011. The Defendant's first preliminary
hearing was scheduled for April 11, 2011. On March 16, 2011, the Defendant requested a continuance of
her preliminary hearing, and the hearing was rescheduled for May 3, 2011. (See Commonwealth's Exhibit
15, Hearing 5/27/2014). On May 3, 2011, the Defendant requested another continuance to June 8, 2011.
On June 8, 2011, the preliminary hearing began but was later continued on the record by the Defendant
1
¡ . .._/¡
until July 20, 2011. (See Commonwealth's Exhibit 16, 5/27/2014). The Defendant requested a final
continuance of her preliminary hearing until August 31, 2011, and on that date, the hearing concluded.
The Defendant's formal arraignment was scheduled for October 14, 2011. The Defendant
received a pretrial conference date for November 17, 2011. On October 21, 2011, the Defendant filed a
written motion for a continuance, and the Defendant's pretrial conference was continued to January 5,
2012. The Defendant expressly waived Rule 600 time in this motion. (See Commonwealth's Exhibit 17,
5/27/2014 ). On January 5, 2012, the Defendant requested a continuance until March 22, 2012. On March
22, the Defendant requested a continuance until April 19, 2012. On April 19, the Defendant requested a
continuance until July 19, 2012. On July 19, the Defendant again requested a continuance until September
20, 2012.
On September 20, 2012, the Defendant requested another continuance until December 27, 2012.
Also on September 20, the Defendant filed her omnibus pretrial motion, and the Court scheduled a hearing
for October 23, 2012. By joint motion, the parties requested a continuance of this hearing until December
19, 2012. This joint motion expressly states that the time would run against the Defendant for any Rule
600purposes. (See Commonwealth's Exhibit 18, 5/27/2014). On December 19, theCourtheldahearing
on the Defendant's motion. The Court disposed of the Defendant's motion by order, dated March 15,
2013.
Also on December 19, 2012, the Commonwealth came into possession of a computer that had
been formally requested by the Defendant. On that date, Detective Hundertmark placed the computer into
temporary evidence storage. On January 7, 2013, Detective Buckwash began employment with the York
County District Attorney's Office in the vacant computer forensic position. On January 28, 2013,
Detective Buckwash removed the computer from temporary evidence storage and began his analysis. On
2
February 7, 2013, then-ADA Mueller contacted Attorney Caraciolo via email. This email advised defense
counsel that the computer would be made available for inspection at the DA's office or that a blank hard
drive could be provided. Defense counsel responded on February 14, 2013, and requested the hard drive
specifications. The Commonwealth provided the specifications to defense counsel via email on March 1,
2013. On or about April 3, 2013, the Defendant provided a hard drive to the Commonwealth; however,
this hard drive did not meet the specifications provided by the Commonwealth. On April 19, 2013, the
Commonwealth advised defense counsel of the error. On May 15, 2013, defense counsel provided the
Commonwealth with a hard drive that matched the specifications provided by ADA Mueller. On May 30,
2013, Detective Buckwash informed ADA Mueller that the second hard drive provided by the Defendant
was not large enough.
On November 18, 2013, ADA Jeff Rigby contacted the Court's chambers to schedule a¡status
conference in this case. The Court held a status conference on November 25, 2013. During this status
conference, the Defendant requested a continuance until the February 2014 trial term. As agreed to under
this continuance, the Defendant accepted the time from November 25 through F ebruary 14-the last day
of the February 2014 trial term. The Defendant conceded during the hearing on the Defendant's Rule 600
motion that the Commonwealth has acted with due diligence in this case since the end of the February
2014 trial term. The Defendant filed the current motion to dismiss under Rule 600 on April 14, 2014, and
the Court received supporting memoranda from both parties by June 18, 2014.
II. Motion to Dismiss
Under Rule 600 of the Pennsylvania Rules of Criminal Procedure, ''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)(2Xa). "Trial shall be deemed to commence on the date the
3
,:
trial judge calls the case to trial, or the defendant tenders a plea of guilty ornolo contendere" Pa. R. Crim.
P. 600(A )( 1 ). When computing the 365-day time period for trial commencement, "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)(l). "Any other periods of delay shall be excluded from the computation." Id. When a
defendant is not brought to trial in accordance with this rule, that defendant, at any time before trial, may
file for the dismissal of the charges with prejudice. Pa. R. Crim. P. 600(D)(l).
Before any dismissal under Rule 600, the Court "must account for any excludable time and
excusable time." Commonwealth v. Colon, 2014 PA Super. 45, 2014 WL 895216 (Pa. Super.).
"Excludable time is time that is attributable to the defendant or [her] counsel." Id. "Excusable [time] is
delay that occurs as a result of circumstances beyond the Commonwealth's control and despite its due
diligence." Id.
When arguing for due diligence, the Commonwealth "has the burden of demonstrating by a
preponderance of the evidence that it exercised due diligence." Commonwealth v. Bradford, 46 A.3d 693,
702 (Pa. 2012). The inquiry for the Court is whether the delay is caused solely by the Commonwealth
when the Commonwealth has failed to exercise due diligence. See Commonwealth v. Matis, 710 A.2d 12
(Pa. 1998). It is a firmly established principle under Pennsylvania law that '" due diligence is fact-specific,
to be determined case-by-case; it does not require perfect vigilance and punctilious care, but merely a
showing the Commonwealth has put forth a reasonable effort." Bradford, 46 A.3d at 704 (quoting
Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). If the delay resulted from circumstances
beyond the Commonwealth's control and despite its due diligence, the time is excusable. See
Commonwealth v. Browne, 584 A.2d 902 (Pa. 1990).
4
First, the Court must establish the mechanical run date. Since the criminal complaint was filed on
::
March 3, 2011, the mechanical run date would be March 2, 2012, which accounts for the 2012 leap year.
From March 3, 2011, until the filing of the Rule 600 motion on April 14, 2014, the Court calculates that
1,128 days elapsed, which exceeds the 365-day period enunciated in Rule 600.
Since over 365 days have elapsed, the Court must then consider whether any excludable time
exists that is attributable to the Defendant or his counsel. See Colon, supra. The Court finds numerous
lengths of time attributable to the Defendant in this case. Those lengths of time include the following:
1. April 11 to May 3, 2011; Defendant continued preliminary hearing (22 days)
2. May 3 to June 8, 2011; Defendant continued preliminary hearing (36 days)
3. June 8 to July 20, 2011; Defendant continued preliminary hearing (42 days)
4. July 20 to August 31, 2011; Defendant continued preliminary hearing (42 days)
5. November 17, 2011 to January 5, 2012; Defendant continued pretrial conference (49
days)
6. January 5 to March 22, 2012; Defendant continued pretrial conference (77 days)
7. March 22 to April 19. 2012; Defendant continued pretrial conference (28 days)
8. April 19 to July 19, 2012; Defendant continued pretrial conference (91 days)
9. July 19 to September 20, 2012; Defendant continued pretrial conference (63 days)
10. September 20, 2012 through March 15, 2013; Defendant filed pretrial motion (176 days)
11. November 25, 2013 to February 14, 2014; Defendant requested continuance (81 days)
The numerous continuances during the preliminary hearing stage, from April 11 to August 31, 2011, total
142 days. The Defendant is also responsible for the block of time between November 17, 2011, through
March 15, 2013, due to numerous continuance requests and an outstanding pretrial motion. This period
5
.,¡
:~
accounts for 484 days. Finally, the period mentioned in #11 accounts for 81 days.
The Court calculates that a total of707 days are attributable to the Defendant or her counsel and,
therefore, are excludable under Rule 600. After deducting the 707 days of excludable time from the 1, 128
days that have elapsed, the Court concludes that 421 days elapsed before the Defendant filed his Rule 600
motion on April 14, 2014. This time period still exceeds the 365-day period enunciated in Pa. R. Crim. P.
600(A)(2)(a), so the Court must continue its Rule 600 analysis.
The Court must now consider whether the Commonwealth is entitled to any excusable time under
Rule 600. See Colon, supra. For excusable time, the issue for the Court is whether the delay resulted from
circumstances beyond the Commonwealth's control and despite its due diligence. See Colon, supra (citing
Commonwealth v. Goldman, 70 A.3d 874, 879-80 (Pa. Super. 2013)).
The Defendant concedes that the Commonwealth has acted with due diligence from February 10,
2014, to April 14, 2014, the date on which the Defendant filed her motion. This time period accounts for
63 days. After deducting the 63 days of excusable time from the 421 days (including excludable time), the
Court concludes that 3 5 8 days elapsed before the Defendant filed his Rule 600 motion on April 14, 2014.
This time period falls within the 365-day period enunciated in Pa. R. Crim. P. 600(A)(2)(a).
Additionally, the Court finds that the Commonwealth acted with due diligence prior to the
conceded 63 days previously mentioned. Specifically, the evidence presented during the Rule 600 hearing
persuades the Court that the Commonwealth acted with due diligence between March 15 and May 30,
2013, which accounts for 76 days. The Court finds that March 15, 2013, is the date to start considering
due diligence because on that date, the Court issued its opinion on the Defendant's pretrial motion. Time
before that date would run against the Defendant because her motion was outstanding. The
Commonwealth presented evidence of numerous communications between defense counsel and ADA
6
Mueller regarding information contained in a computer. (See Commonwealth Exhibits 1 through 13,
5/27/2014). Although some complications arose while trying to copy the computer's hard drive for the
Defendant, the Court finds that the Commonwealth's constant contact and efforts to provide defense
counsel with a copied hard drive show due diligence in this case. These communications show a
reasonable effort to comply with the Defendant's discovery request and to keep the case moving forward.
See Bradford, supra. The Court concludes that these 7 6 days are excusable time for the Commonwealth.
After deducting these 76 days of additional excusable time from the 3 3 8 days (previously calculated total),
the Court concludes that 262 days elapsed before the Defendant filed her Rule 600 motion on April 14,
2014. This time period falls within the 365-day period enunciated in Pa. R. Crim. P. 600(A)(2)(a).
The Court additionally notes that any time accumulating between April 14, 2014, and the date this
order is docketed is excludable time against the Defendant. Since the Defendant filed a motion to dismiss
requiring the Court to issue a decision, the Defendant is responsible for the time between the filing of the
motion and the date of decision. The Court concludes that only 262 days have elapsed for Rule 600
purposes. At this point in the case, the Court further concludes that the Commonwealth has 103 days from
the date that this decision is docketed to bring the Defendant to trial and to comply with the parameters of
Rule 600.
7
!./*
(::: III. Conclusion
For the reasons stated above, the Court hereby DENIES the Defendant's Motion to
f¡¡' Dismiss.
.!),
BY THE COURT,
l 'â˘..
T'- ~/..,.;' !'.'.-1.t-¢.
r- â˘.. DATED: AugustL_, 2014 MICHAELE.BORTNER, JUDGE
8
Circulated 12/27/2016 10:14 AM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH NO. CP-67-CR-0005471-2'21
~g
v. ~~
00
""'n~- if>
-
NANCY HAAS, c:;,¡¡'
Defendant s~
~-
-'a
en
--0
,.c::,
COUNSEL OF RECORD:
Kelley L. Nelson, Esquire Joseph D. Caraciolo, Esquire
Counsel for the Commonwealth Counsel for the Defendant
OPINION IN SUPPORT OF ORDER
The Defendant filed a Post-Sentence Motion on June 8, 2015. A hearing was held on
those motions on August 4, 2015. The parties having agreed that testimony was unnecessary,
this Court heard argument from counsel and, at the conclusion of the Hearing, took the matter
under advisement. After consideration of all relevant testimony, evidence, and case law, this
Court has Denied the Defendant's Post-Sentence Motion and now issues this Opinion in
Support of that Order.
I. Post-Sentence Motions
A. Restitution
In her first motion, the Defendant challenges our finding of restitution. The Defendant's
challenges are wide-ranging and touch upon all pertinent areas of consideration in setting
restitution. In total, the Defendant was ordered to pay restitution of $84,294.07. The Defendant's
1
¡-¡¡
sought-after remedy is for a restitution hearing to be set.
18 Pa.C.S.A. § l 106(c)(2)(i), which governs the setting of restitution, states, in
pertinent part:
(c) Mandatory restitution.-
(2) At the time of sentencing the court shall specify the amount
and method of restitution. In determining the amount and
method of restitution, the court:
(i) Shall consider the extent of injury suffered by
the victim, the victim's request for restitution ..
. and such other matters as it deems appropriate.
Commonwealth v. Atanasio, 997 A.2d 1181,1183 (Pa. Super. Ct. 2010). As the Superior
Court has stated, "[i]t is the Commonwealth's burden of proving its entitlement to
restitution." Id. (citing Commonwealth v. Boone, 862 A.2d 639, 643 (Pa. Super. Ct. 2004)). In
Commonwealth v. Atanasio, the Superior Court made clear that the restitution amount must
have a factual basis that can be found in the record. 997 A.2d 1181, 1183 (citing
Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa. Super. Ct. 2007)). The Atanasio court goes
on to say that, "the dollar value of the injury suffered by the victim as a result of the crime
assists the court in calculating the appropriate amount of restitution." Id. And, the restitution
ordered cannot be excessive or speculative. Atanasio, 997 A.2 at 1183 (citing Commonwealth
v. Rush, 909 A.2d 805, 810 (Pa. Super. Ct. 2006)). To this end, we are cognizant that, ''[a]
restitution award must not exceed the victim's losses." Commonwealth v. Pleger, 934 A.2d
2
715, 720 (Pa. Super. Ct. 2007) (citing Commonwealth v. Fuqua, 407 A.2d 24, 26 (Pa. Super.
Ct. 1979)).
With the above recitation of the basics of law regarding restitution, we are left
with a fairly straightforward proposition. As it is the Commonwealth's burden, what restitution
did the Commonwealth show that there is an entitlement to? At trial, Chief Loper testified that it
was his belief, after analyzing the inordinate number of extravagant checks to the Defendant
from the business accounts of the victim that the Defendant had wrongfully taken $86,73 7.4 7.
We note, here, that we imposed restitution of $84,294.07, which we felt addressed the issues of
sentencing.
We do not believe that the law requires us to compute restitution down to the exact cent
stolen in a case where the Defendant's intentional obfuscation makes such an endeavor
impossible. Rather, we seek a factual basis, in the record, upon which we can, as reliably as
possible, fix restitution. We believe that we did that based upon Chief Loper's testimony.
Moreover, we remember that the dollar value of injury to the victim only assists in computing
restitution. Having considered the factors appropriate to sentencing, we decline to grant
Defendant's motion for a restitution hearing.
B. Discovery Violations
The Defendant's second post-sentence motion concerns the existence of a server. In her
Post-Sentence Motion, Defendant avers that the Commonwealth violated the rules pertaining to
discovery by making definite statements that there was no server as alleged by the defense, which
3
the Defendant further avers was disproven by the victim's statements at trial. We believe this
motion fails factually.
At a status hearing on March 17, 2014, counsel for the Defendant identified a specific
hard drive that the defense alleged might have been utilized as a server and that the defense
therefore wished to examine. (Notes of Testimony, 3/17/14, at 4.) The Commonwealth then
described the hard drive in question as belonging to a Macintosh computer and disputed that it
was ever used as a server. Id., at 5. Commonwealth noted that another employee had access to a
second Macintosh. Id., at 7. In addition, Commonwealth divulged that there was an additional
PC. Id., at 5 and 7. At the March 17, 2014 hearing, defense counsel stated that he had only been
made aware of the Macintosh "server" on the day of the hearing. Defendant's Post-Sentence
motions note that the defense was aware of this server prior to the hearing and as early as March
12, 2014. See Defendant's Post-Sentence Motion at unnumbered page 5. At the conclusion of the
March 17, 2014 hearing, it was agreed that the victim would deliver the Macintosh "server" in
question to the Fairview Township Police station for inspection by the defense. Id., at 9-10.
At trial, Mr. Piper testified that his companies had five computers in the office consisting
of three Macintosh computers and two PC computers. As recounted above, the defense was
aware of two PC computers. And from the March 17, 2014 hearing, defense counsel was aware
of two Macintosh computers at the businesses. Mr. Piper's trial testimony may have revealed a
third Macintosh; however, it is not this Court's recollection that this third Macintosh was a
potential server. Rather, Mr. Piper appeared, to this Court, to be testifying about the Macintosh
4
"server" that the defense was plainly aware of and had opportunity to inspect following the
March 17, 2014 hearing. We see no discovery violation here and therefore deny Defendant's
requests to set aside the verdict of the jury, compel discovery, and order a new trial.
II. Conclusion
For the reasons stated above, the Court hereby Denies the Defendant's post-sentence
motions.
BY THE COURT,
~_./~~
DATED: October) 'f , 2015 . MICHAEL E. BORTNER, JUDGE
5
Case Information
- Court
- Pa. Super. Ct.
- Decision Date
- January 26, 2017
- Status
- Precedential