Com. v. Ashton, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BRUCE ASHTON
Appellee No. 3443 EDA 2014
Appeal from the Order of November 3, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0005493-2014
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 24, 2015
In this case, the Commonwealth appeals the trial court’s November 3,
2014 order, which dismissed the Commonwealth’s prosecution of Bruce
Ashton for driving under the influence of a controlled substance (“DUI”), 75
Pa.C.S. § 3802(d), based upon the Commonwealth’s purported failure to
bring Ashton to trial within the applicable speedy trial time limits. We
reverse the order, and we remand for trial.
On August 23, 2013, Ashton was charged in Philadelphia with one
count of DUI, as noted above, and one count of DUI—general impairment.
75 Pa.C.S. § 3802(a). On January 16, 2014, Ashton appeared before the
Philadelphia Municipal Court for trial on these two charges. Before trial, the
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*
Retired Senior Judge assigned to the Superior Court.
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Commonwealth withdrew the DUI—general impairment count. The
municipal court judge convicted Ashton of the DUI—controlled substances
count, which was Ashton’s second DUI conviction.1 On April 14, 2014, the
municipal court judge sentenced Ashton to ninety days to six months’
incarceration, and a concurrent two-year term of probation.
On May 9, 2014, Ashton filed an appeal for a de novo trial in the Court
of Common Pleas of Philadelphia County. The de novo trial was scheduled
for July 18, 2014. On that date, the Commonwealth requested a
continuance because the arresting officer could not appear for trial due to a
previously scheduled medical appointment. The trial court granted the
continuance, and re-scheduled trial for November 3, 2014.
On the trial date, Ashton filed a motion to dismiss the prosecution on
speedy trial grounds pursuant to Pa.R.Crim.P. 1013(G), which we discuss in
more detail infra. The trial court heard argument from both sides on the
motion. Ashton argued that, pursuant to Rule 1013(G), the Commonwealth
was required to bring him to trial after his de novo appeal within 120 days.
Due to the Commonwealth’s request for a continuance, which was granted
by the trial court, trial on November 3, 2014 would have occurred beyond
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1
The facts presented at trial in support of Ashton’s municipal court
conviction are immaterial to our disposition of this case. We will not recite
them here.
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the 120-day deadline. As such, Ashton maintained that the charges had to
be dismissed.
The Commonwealth argued that the continuance was beyond its
control, because the arresting officer was unavailable due to a medical
appointment that was scheduled before the trial date had been set. The trial
court sided with Ashton, granted the motion, and dismissed the charges.
On November 21, 2014, the Commonwealth filed a notice of appeal.
On the same date, the Commonwealth filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), even though the
trial court had not yet ordered the Commonwealth to do so. On February 2,
2015, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
The Commonwealth raises a single question for our review:
Whether the lower court erred in discharging [Ashton] under
Pa.R.Crim.P. 600 by failing to exclude a Commonwealth
continuance that had been granted because, as the docket
states, a police officer witness was unavailable due to a medical
appointment and the time to try [Ashton] had not expired?
Brief for the Commonwealth at 4.
We begin with our standard of review for cases implicating Rule 1013’s
speedy trial rule.
Our standard of review for evaluating claims brought pursuant to
Rule of Criminal Procedure 1013 is the same as that applied to
claims made under Rule of Criminal Procedure 600. The purpose
of the rules is similar, and the case law applies equally to both.
When considering any “speedy trial” claim, the proper scope of
review is limited to the evidence on the record from the
evidentiary hearing and the findings of the trial court. If the
hearing court denied relief under Rule 1013, appellate courts
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must view the facts in the light most favorable to the
Commonwealth as the prevailing party. In assessing a Rule
1013 issue, we are confined to determining whether the trial
court committed an “abuse of discretion” in reaching its decision.
Commonwealth v. Preston, 904 A.2d 1, 9 (Pa. Super. 2006) (en banc)
(footnote and citations omitted).
Pa.R.Crim.P. 1013 provides “[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. In all other respects the provisions of Rule
600 shall apply to such trials in the Court of Common Pleas.” Pa.R.Crim.P.
1013(G). Recently, in Commonwealth v. Lynch, 57 A.3d 120 (Pa. Super.
2012) (en banc), this Court set forth the principles that govern issues that
implicate Rule 1013(G), and by implication, Rule 600, as follows:
Similar to Criminal Rule 600, Rule 1013 has excludable time and
excusable delay:
The first step in determining whether a technical violation
of Rule 600 or Rule 1013 has occurred is to calculate the
“mechanical run date.” The mechanical run date is the
date by which trial must commence under the relevant
procedural rule. In a municipal court case, the mechanical
run date is ascertained by counting the number of days
from the triggering event—e.g., the date on which the
preliminary arraignment occurred or on which the criminal
complaint was filed—to the date on which trial must
commence under Rule 1013. The mechanical run date can
be modified or extended by adding periods of time in which
the defendant causes delay. It then becomes an “adjusted
run date.”
Rules 600 and 1013 take into account both “excludable
time” and “excusable delay.” “Excludable time” is defined
by Rule 1013 itself as any period of time during which a
defendant expressly waives his rights under the Rule.
Delays caused by the unavailability of the defendant or
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counsel also are excludable, as are delays for continuances
granted at the request of the defendant or counsel.
“Excusable delay” is not expressly defined in either Rule
600 or in Rule 1013, but the legal construct takes into
account delays which occur as a result of circumstances
beyond the Commonwealth’s control and despite its due
diligence.
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).
Lynch, 57 A.3d at 123-24.
As noted earlier, our standard of review requires us to determine
whether the trial court has abused its discretion in granting Ashton’s motion.
The trial court did not engage in the required analysis set forth in Lynch.
Rather, the trial court determined the mechanical run date, observed that
the November 3, 2014 trial date was beyond that date, and then granted the
motion. See T.C.O. at 2-3. The court failed to consider whether the delay
constituted excusable time, or whether the Commonwealth acted with due
diligence. As such, the court’s decision misapprehended the applicable law,
and was an abuse of discretion.
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On May 9, 2014, Ashton filed an appeal for a de novo trial. Per Rule
1013(G), the Commonwealth had 120 days to bring Ashton to trial. Thus,
the mechanical run date was approximately September 9, 2014. There were
no defense postponements. Thus, the adjusted run date is the same as the
mechanical run date.
The trial originally was scheduled for July 18, 2014. However, because
the arresting officer had a previously scheduled medical appointment, the
Commonwealth requested, and received, a continuance. Trial was
rescheduled for November 3, 2014, which was well beyond the
mechanical/adjusted run date. We must consider whether the delay was
excusable, and whether the Commonwealth nonetheless acted with due
diligence.
As explained in Preston and Lynch, excusable delays are those that
occur as a result of circumstances beyond the Commonwealth’s control and
despite its due diligence. Here, it is undisputed that the arresting officer was
a necessary witness, and that the officer was unavailable because of a
medical appointment that was scheduled before the July 18, 2014, trial date
was set. This event was not within the means of the Commonwealth to
control. It involved the personal life of a necessary witness, and it was an
event that was scheduled before a trial date was set. Moreover, there is
nothing in the record to suggest that the Commonwealth did not act with
due diligence. “Due diligence does not require perfect vigilance and
punctilious care, but rather a showing by the Commonwealth that a
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reasonable effort has been put forth.” Booze, supra. We observe nothing
in the record that would permit us to conclude that the Commonwealth did
not put forth a reasonable effort, particularly where the continuance was due
to an event that was beyond the control of the Commonwealth. The
relevant time period that caused the trial to be scheduled beyond the
applicable date was excusable.
Lastly, we note that the only factor that the court considered in its
analysis was the fact that the record did not demonstrate that November 3,
2014, was the earliest possible available trial date. However, that is not the
relevant question. The analysis entails determining first the mechanical run
date, then the adjusted run date. Once that date is established, the court
then must ascertain whether any time that is attributable to the
Commonwealth is excusable time, and whether the Commonwealth acted
with due diligence. Neither excusable time nor due diligence hinge
exclusively upon whether the Commonwealth sought the earliest possible
trial date at all times throughout the proceedings. The fact that the
Commonwealth did not scour the judicial calendar for the first available trial
date does not mean, ipso facto, that the Commonwealth did not act with due
diligence. Rather, the record demonstrates that the Commonwealth put
forth a reasonable effort to bring Ashton to trial, which is the standard for
due diligence.
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The trial court not only reached the incorrect legal conclusion, but also
failed to consider a substantial portion of the relevant legal analysis.
Consequently, the trial court’s decision was an abuse of discretion.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2015
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