OPINION BY MUSMANNO, J.:
John Lynch ("Lynch") appeals from the judgment of sentence imposed following his conviction of harassment. See 18 Pa. C.S.A. § 2709(a). We affirm.
The trial court has set forth the relevant underlying facts as follows:
Trial Court Opinion, 10/4/11, at 2-3 (citations omitted).
Lynch was arrested and charged with one count each of terroristic threats and harassment. On August 11, 2010, Lynch proceeded to a bench trial in the Philadelphia Municipal Court before the Honorable Thomas Gehert. After hearing the evidence, Judge Gehert found Lynch guilty of harassment and not guilty of terroristic threats. Judge Gehert sentenced Lynch to three to twelve months in prison with credit for time served and immediate parole. On August 19, 2010, Lynch filed an appeal for a trial de novo before the Philadelphia County Court of Common Pleas.
The de novo trial was initially listed for November 29, 2010; however, DeMarco did not appear. The trial court then scheduled the trial for the earliest possible date, January 14, 2011. Lynch filed a Motion to dismiss the charges under Pennsylvania Rule of Criminal Procedure 1013(G) because the de novo trial did not occur within 120 days of the appeal from the Municipal Court. The trial court denied this Motion. Thereafter, Lynch waived his right to a jury trial and proceeded to a bench trial. After hearing the evidence, the trial court found Lynch
Lynch filed a timely Notice of appeal. The trial court ordered Lynch to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Lynch filed a timely Concise Statement and the trial court issued an Opinion.
On appeal, Lynch raises the following questions for our review:
Brief for Appellant at 3.
In his first claim, Lynch contends that the trial court improperly denied his Motion to dismiss the case pursuant to Criminal Rule 1013(G) because the trial occurred 148 days after he had filed a Notice of appeal from the Municipal Court decision. Id. at 9. Lynch argues that the Commonwealth did not exercise due diligence in making sure DeMarco was present at the trial scheduled for November 29, 2011. Id. at 9, 11. Lynch asserts that the Commonwealth did not present any evidence that they attempted to issue DeMarco a subpoena. Id. Lynch claims that the mechanical and adjusted run date was December 17, 2010, because there were no delays by the defense and no excludable time. Id. at 10. Lynch argues that Criminal Rule 1013(G) does not support the trial court's reliance on the congestion of the court docket to deny his Motion to dismiss. Id. at 11-12.
Commonwealth v. Preston, 904 A.2d 1, 9 (Pa.Super.2006) (en banc) (footnote and citations omitted).
Pa.R.Crim.P. 1013 provides in relevant part that "[a] trial de novo in the Court of Common Pleas shall commence within a period of 120 days after the notice of appeal from the Municipal Court is filed." Pa.R.Crim.P. 1013(G). Similar to Criminal Rule 600, Rule 1013 has excludable time and excusable delay:
Preston, 904 A.2d at 11 (citations omitted). The Commonwealth is entitled to an extension of time "upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth." Pa.R.Crim.P. 1013(C)(1)(c). "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).
Here, Lynch filed his appeal from the Municipal Court's finding of guilt on August 19, 2010. Thus, the mechanical run date was December 17, 2010. Initially, the trial was set for November 29, 2010, well within the mechanical run date.
On that date, the main witness for the Commonwealth, DeMarco, did not appear. N.T., 1/14/11, at 6. DeMarco later testified that she was on vacation on November 29, 2010, and had not received notice of a trial on that date. Id. at 11. The Commonwealth noted that a subpoena had been sent to DeMarco pursuant to the Court of Common Pleas Case Management System ("CPCMS").
Here, the trial court denied Lynch's Rule 1013 Motion because DeMarco did not appear at the November 29, 2010 trial based upon a misunderstanding and the rescheduled trial was given the earliest possible date on the trial court's calendar. See N.T., 1/14/11, at 15-16; see also Trial Court Opinion, 10/4/11, at 5. Based upon our review of the record, we conclude that the trial court did not abuse its discretion in making its finding. Indeed, in this case, the Commonwealth sent a subpoena to DeMarco for the November 29, 2010 trial to an address that it had previously sent subpoenas received by DeMarco. However, due to a failure to include the floor where DeMarco's office is located, and the failure of the person receiving the subpoena to deliver it to DeMarco, DeMarco did not receive the subpoena. Furthermore, DeMarco was on vacation on the date of the trial. Under these facts, the Commonwealth exercised due diligence in subpoenaing DeMarco as it had on previous occasions, and her absence was beyond the Commonwealth's control. See Commonwealth v. Jones, 886 A.2d 689, 701 (Pa.Super.2005) (stating that "[t]he matters of availability and due diligence must be judged by what was done by the authorities rather than by what was not done.") (citation omitted); see also Commonwealth v. Hunt, 858 A.2d 1234, 1243 (Pa.Super.2004) (en banc) (stating that circumstances occasioning the postponement of the trial due to the unavailability of a minor witness was out of the Commonwealth's control). Thus, the Commonwealth attempted to bring Lynch to trial prior to the expiration of the mechanical run date. Moreover, the trial court issued a new trial date that was past the mechanical run date due to a congested court calendar. See Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa.Super.2007) (stating that "the Commonwealth cannot control the schedule of the trial courts[.]"); Preston, 904 A.2d at 14 (confirming that trial courts are not required to rearrange their schedules to accommodate deadlines imposed by Pennsylvania's speedy trial procedural rules). Based upon the foregoing, we conclude that Lynch's first claim is without merit. See Preston, 904 A.2d at 13-14; Hunt, 858 A.2d at 1244.
In his second claim, Lynch contends that the trial court abused its discretion in allowing evidence of prior bad acts without providing him with written notice as required by Pennsylvania Rule of Evidence 404(b). Brief for Appellant at 12, 14. Lynch argues that he was charged with a single incident of harassment on April 16, 2010, and that the Commonwealth introduced prior incidents where he had allegedly threatened DeMarco. Id. at 12. Lynch asserts that the Commonwealth did not show "good cause" as required under Rule 404(b) for the lack of notice. Id. Lynch claims that he relied upon the Commonwealth's "implicit representation" that it would not introduce the evidence. Id. at 14. Lynch argues that he was surprised by the evidence and was unprepared to deal with it. Id. at 13.
"In criminal cases, the prosecution shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Pa.R.E. 404(b)(4). The purpose of this rule "is to prevent unfair surprise, and to give the
Here, the affidavit of probable cause stated that DeMarco had numerous conversations with Lynch with regards to his suspended license and towed vehicles. See Affidavit, 4/19/10, at 1. The affidavit further indicated that Lynch had encountered DeMarco at the PPA and that Lynch had been argumentative and aggressive toward the PPA staff. See id. Further, Lynch was provided with discovery, which included DeMarco's statements referring to Lynch's conduct over a five-year period. N.T., 1/14/11, at 22-23. Moreover, DeMarco testified to her prior dealings with Lynch at the trial in Municipal Court. See N.T., 8/11/10, at 4-5, 7-9, 13; see also N.T., 1/14/11, at 22. Accordingly, we conclude that Lynch has not demonstrated unfair surprise and that he had sufficient notice of the proffered evidence. See Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110, 118, n. 2 (2001) (concluding that defendant had notice pursuant to Rule 404(b)(4) where the Commonwealth provided defendant with discovery containing evidence of the prior bad acts); Mawhinney, 915 A.2d at 110 (concluding that defendant had reasonable notice of the proffered evidence where the evidence had been discussed during pre-trial conferences).
Judgment of sentence affirmed.
