Com. v. Therrien, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEFFREY EDWARD THERRIEN : No. 1523 WDA 2019
Appeal from the Order Entered September 16, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005429-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 04, 2021
The Commonwealth appeals from the order dismissing the charges
against Jeffrey Edward Therrien pursuant to Pennsylvania Rule of Criminal
Procedure 600. It alleges that the trial court abused its discretion when it
found that the Commonwealth had not acted with due diligence in prosecuting
the case against Therrien. We affirm.
The trial court set forth the procedural history of this case as follows:
On March 16, 2018, a criminal information was filed by the
Office [of] the Attorney General charging [Therrien] with twenty-
eight (28) counts of child pornography, 18 Pa.C.S.A. § 6312(D)
and one (1) count of criminal use of communication facility, 18
Pa.C.S.A. § 7512. The underlying facts are not germane to the
disposition of the appeal, but briefly, the charges stem from media
files retrieved from a computer seized during the execution of a
search warrant. The preliminary hearing scheduled on March 27,
2018 was postponed by the Commonwealth[. The
Commonwealth] received two (2) more continuances on April 10,
2018 and April 24, 2018 with the charges eventually waived to
court on May 1, 2018 without any continuances by the defendant.
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Formal arraignment occurred on June 28, 2018. . . . It was
at this proceeding that the Commonwealth informed the court that
discovery was outstanding and requested to schedule a status
conference. Consequently, the trial date, which is customarily
selected during pre-trial conference, was deferred by agreement
of the parties until the status conference on August 29, 2018.
At the aforementioned status conference, the parties
updated the court that plea negotiations were underway, but as
there was no agreement[,] the case was listed for a jury trial for
November 14, 2018. On the November trial date [Therrien] was
granted a postponement citing [ongoing] plea negotiations and
the ability to view an item of discovery as the reasons for the
request. The Commonwealth consented by email and did not
appear before the court. The case was scheduled as a plea.
On February 19, 2019, the day before the scheduled date,
the defense again sought and received a continuance, indicating
that the parties were close to reaching a plea. The Commonwealth
indicated consent by phone and the case was relisted for April 4,
2019 as a plea. On April 1, 2019, the Commonwealth requested a
postponement citing the sole reason as “an unexpected problem
with one of the CDs provided in discovery”. The court granted the
continuance, indicating that the time was attributable to the
Commonwealth and that no further postponements would be
granted. The parties changed the listing from a plea to a jury trial
and it was scheduled for July 9, 2019.
On June 28, 2019, the Commonwealth again asked the
Court to continue the case stating that [Therrien] recently rejected
a plea offer and that two (2) Commonwealth witnesses were
unavailable. Both counsel were present for the presentation of the
postponement and the court granted the request. This case
remained listed as a jury trial with a new date of October 3, 2019
and with a motions date of August 29, 2019; this was scheduled
to address [Therrien’s] motion in limine filed on June 24, 2019,
seeking to exclude photographs, arguing that they were
inflammatory, and the motion to suppress filed on June 26, 2019,
regarding evidence obtained from an automatic license plate
reader.
On August 14, 2019[, Therrien] filed a motion to dismiss
pursuant to Rule 600. . . .
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Trial Court Opinion, 01/13/20, at 1-3 (footnotes and unnecessary
capitalization omitted).
The trial court conducted a motions hearing on August 29, 2019,
wherein it considered Therrien’s Rule 600 motion. The hearing continued on
September 16, 2019, after which the trial court granted Therrien’s motion to
dismiss. This timely appeal followed.
The Commonwealth raises one question on appeal:
Whether the trial court abused its discretion by granting Therrien’s
motion to dismiss pursuant to Rule 600 because (a) Therrien’s
continuance requests and pretrial motions made him unavailable
for trial where the Commonwealth exercised due diligence during
the pendency of each motion, (b) the Commonwealth diligently
proceeded during and after Therrien’s continuance requests with
the understanding that Therrien would enter a plea, and (c) after
Therrien informed the Commonwealth that he would not enter a
plea, the Commonwealth’s trial witnesses had predetermined
commitments that prevented them from appearing on July 9,
2019, a date on which a trial could not have commenced due to
Therrien’s outstanding motions, and thus the time from the filing
of the Commonwealth’s last continuance request until the court -
scheduled trial date does not count against the Commonwealth
under Rule 600?
Commonwealth’s Br. at 3.
When presented with a speedy trial claim arising under Pennsylvania
Rule of Criminal Procedure 600, our standard of review is well settled.
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
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unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.
The proper scope of review is limited to the evidence on the record
of the Rule [600] evidentiary hearing, and the findings of the
[trial] court. An appellate court must view the facts in the light
most favorable to the prevailing party.
Additionally, when considering the trial court’s ruling, this Court is
not permitted to ignore the dual purpose behind Rule [600]. Rule
[600] serves two equally important functions: (1) the protection
of the accused’s speedy trial rights, and (2) the protection of
society. In determining whether an accused’s right to a speedy
trial has been violated, consideration must be given to society’s
right to effective prosecution of criminal cases, both to restrain
those guilty of crime and to deter those contemplating it.
However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
So long as there 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. In
considering [these] matters . . ., courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa.Super. 2018) (citation
and emphases omitted), appeal denied, 219 A.3d 597 (Pa. 2019). The
Commonwealth bears the burden of proving, by a preponderance of evidence,
that it acted with due diligence throughout the proceedings. See
Commonwealth v. Kearse, 890 A.2d 388, 393 (Pa.Super. 2005).
Pennsylvania Rule of Criminal Procedure 600 provides that “[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.”
Pa.R.Crim.P. 600(A)(2)(a). However, in computing the Rule 600 deadline, we
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do not necessarily count all time following the filing of the complaint. Rather,
“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).
The Rule 600 analysis thus entails three steps:
First, Rule 600(A) provides the mechanical run date. Second, we
determine whether any excludable time exists pursuant to Rule
600(C). We add the amount of excludable time, if any, to the
mechanical run date to arrive at an adjusted run date.
If the trial takes place after the adjusted run date, we apply the
due diligence analysis set forth in Rule 600([D]). As we have
explained, Rule 600[] encompasses a wide variety of
circumstances under which a period of delay was outside the
control of the Commonwealth and not the result of the
Commonwealth’s lack of diligence. Any such period of delay
results in an extension of the run date. Addition of any Rule 600[]
extensions to the adjusted run date produces the final Rule 600
run date. If the Commonwealth does not bring the defendant to
trial on or before the final run date, the trial court must dismiss
the charges.
Commonwealth v. Wendel, 165 A.3d 952, 956–57 (Pa.Super. 2017)
(citation omitted).
In the instant case, the trial court found, and the parties agree, that the
complaint was filed March 16, 2018, and the mechanical run date was March
16, 2019. Additionally, the court found that the time from November 13, 2018
through February 20, 2019, and from February 20, 2019 through April 4,
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2019, was 143 days of excludable time attributable to defense continuances.1
Accordingly, this created a Rule 600 adjusted run date of August 6, 2019. See
Trial Ct. Op., at 5-6.
The Commonwealth argues that the trial court abused its discretion
because it should have excluded the time from the filing of Therrien’s pretrial
motion in limine, on June 24, 2019, and his motion to suppress, on June 28,
2019, until the time of the trial court’s dismissal of the charges. The
Commonwealth argues that Therrien’s pretrial motions made him unavailable
for trial starting the day he filed the first pretrial motion, on June 24, 2019.
The Commonwealth relies on Commonwealth v. Hill, 736 A.2d 578 (Pa.
1999), to argue that the time from the filing of the pretrial motions, and
disposition of the same, should not count against it. The Commonwealth
maintains that the motions delayed the commencement of trial, and it was
diligent in opposing to the motions. See Commonwealth’s Br. at 20-21.
Delay that occurs because of circumstances beyond the
Commonwealth’s control, and despite its due diligence, is “excusable delay”
that extends the Rule 600 deadline. See Commonwealth v. Preston, 904
A.2d 1, 11 (Pa.Super. 2006) (en banc). “Due-diligence is a fact-specific
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1 The Commonwealth’s brief states that Therrien’s requested trial continuance
commenced on November 14, 2018, and ended April 4, 2019, which would
constitute 142 days of excludable time. However, as the trial court explained
in its opinion, it calculated the time using the date the postponement was
submitted and signed. See Trial Ct. Op., at 6 n.6. The Commonwealth has not
argued that the trial court’s calculations were in error; therefore, we shall
accept the trial court’s dates as set forth in its January 13, 2020 opinion.
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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. Lynch, 57 A.3d 120, 124 (Pa.Super. 2012) (quoting Commonwealth v.
Booze, 953 A.2d 1263, 1273 (Pa.Super. 2008)). The Commonwealth bears
the burden of proving by a preponderance of the evidence that it exercised
due diligence. See Kearse, 890 A.2d at 393.
The trial court reasoned, “There is no per se rule that the filing of pre-
trial motions makes a defendant unavailable.” Trial Ct. Op., at 7 (citing Hill,
736 A.2d at 587). It explained that such time is excludable only if the pretrial
motions delayed the start of trial, and the Commonwealth proved that it
exercised due diligence in opposing or responding to the pretrial motions. See
id.
Applying these precepts, the court then concluded that the time
following the filing of the pretrial motions was not excusable. It explained that,
concurrently with Therrien’s pretrial motions, the Commonwealth had also
sought and obtained a continuance of trial until after the Rule 600 deadline:
Following the holding in Hill and viewing the facts in the light most
favorable to [Therrien] who was the verdict winner, the
Commonwealth did not satisfy its burden of establishing due
diligence. The June 28, 2019 postponement submitted by the
Commonwealth made no mention of the pre-trial motions, but
indicated that it did not have the necessary witnesses for the July
9, 2019 trial date. There is no explanation as to why the
Commonwealth was not prepared to move forward on the pretrial
motions. Although the suppression motion required witnesses, the
Motion in Limine involved strictly a legal question. Furthermore,
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the Commonwealth did not file any written response or answer to
any of the pending pre-trial motions prior to the August 29, 2019
hearing. In short, there was nothing offered by the
Commonwealth during the evidentiary hearings of August 29,
2019 or September 16, 2019, or in the postponement form itself,
or anywhere else in the record to satisfy even by a preponderance
of the evidence that the Commonwealth exercised due diligence
in opposing these pretrial motions, which it claims made the
defendant unavailable.
Id. at 7-8 (emphasis omitted).
The trial court did not abuse its discretion when it declined to exclude
the time from the filing of Therrien’s pretrial motions until their disposition. As
explained by our Supreme Court in Hill, “the mere filing of a pretrial motion
by a defendant does not automatically render him unavailable. Rather, a
defendant is only unavailable for trial if a delay in the commencement of trial
is caused by the filing of the pretrial motion.” Hill, 736 A.2d at 587. We agree
with the trial court that, here, Therrien’s motions did not delay the
commencement of trial. Hence, we conclude that the trial court appropriately
did not exclude the time from its Rule 600 calculations.
In its second argument, the Commonwealth also contends that the delay
that its continuance request caused was excludable because its witnesses
were unavailable for trial and it was duly diligent. The Commonwealth asserts
that it exercised due diligence because it quickly asked for a new trial date
upon learning that Therrien rejected the plea agreement.
Witness unavailability in some circumstances can constitute excusable
delay. See, e.g., Wendel, 165 A.3d at 957 (holding that time during officer’s
unavailability because of previously scheduled training was beyond
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Commonwealth’s control, and constituted excusable delay); Commonwealth
v. Hunt, 858 A.2d 1234, 1243 (Pa.Super. 2004) (en banc) (reasoning that
postponement of trial because of unavailability of witness was out of
Commonwealth’s control); see also Commonwealth v. Hyland, 875 A.2d
1175, 1191 (Pa.Super. 2005) (“The Commonwealth cannot be held to be
acting without due diligence when a witness becomes unavailable due to
circumstances beyond its control”).
Here, however, the trial court found the facts of instant case
distinguishable from those where witness unavailability constituted excusable
delay. The court explained,
There was no assertion by the Commonwealth during either
evidentiary hearing that it had exercised due diligence by placing
these two (2) witnesses under subpoena for the July 9, 2019 trial
date. Based on the [Commonwealth’s] repeated assertion that it
believed the case would be a plea on the upcoming July 9, 2019
trial date, and statements that it proceeded diligently with this
understanding, the court is without evidence thereof, and cannot
assume that these witnesses were under subpoena in the present
case. Accordingly, even if the witnesses had legally-recognizable
excuses for being unavailable, there is no evidence that [the
Commonwealth] made the necessary and reasonable effort of
issuing subpoenas for the very witnesses it claims were
unavailable.
Trial Ct. Op., at 9 (quotation marks and unnecessary capitalization omitted).
Upon review, we conclude that the trial court did not abuse its discretion
when it found that the granting of the Commonwealth’s motion for
continuance was not excusable delay because of witness unavailability.
Further, we agree with the trial court that asking for a continuance of a trial
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date because the defendant failed to agree to a plea bargain and a trial may
actually take place on the scheduled date, does not in itself constitute due
diligence. Where compliance with the Rule is a potential issue, due diligence
requires the Commonwealth to be proactive and bring the problem to the
court’s attention. See Commonwealth v. Aaron, 804 A.2d 39, 44 (Pa.Super.
2002) (en banc).2 The record here shows only that the Commonwealth asked
for the continuance. It contains nothing to suggest that it put the court on
notice of the Rule 600 issue or otherwise took steps to attempt to comply with
Rule 600. The Commonwealth’s second argument in meritless.
Finally, in its third argument, the Commonwealth contends that judicial
delay should have been responsible for some of the time 3 from June 28, 2019,
until the trial date. It states that when the court scheduled the motions hearing
for August 29, 2019, and the trial for October 3, 2019, it was not required to
ask for any earlier date than the first available date, as provided by the trial
court.
Delay caused by the limitations of the court system, known as “judicial
delay,” is excluded from the Rule 600 calculation. Judicial delay may serve as
a basis for extending the Rule 600 deadline, “where the Commonwealth is
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2 See also Commonwealth v. Smith, 383 A.2d 1280, 1282 (Pa. 1978)
(“When a case has possible Rule [600] problems, prosecutors must do
everything reasonable within their power to see that the case is tried on
time”).
3The Commonwealth never establishes an exact period following the June 28,
2019 continuance that it claims is attributable to judicial delay.
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prepared to commence trial prior to the expiration of the mandatory period
but the court, because of scheduling difficulties or the like, is unavailable.”
Bethea, 185 A.3d at 371 (brackets and citation omitted)). For example,
“where a trial-ready prosecutor must wait several months due to a court
calendar, the time should be treated as ‘delay’ for which the Commonwealth
is not accountable.” Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).
However, time attributable to the normal progression of the case is not
excludable. Id. The Commonwealth must therefore keep track of the
progression of the case to ensure compliance with Rule 600. See
Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.Super. 2007) (en
banc) (holding due diligence “includes, among other things, listing a case for
trial prior to the run date, preparedness of trial within the run date, and
keeping adequate records to ensure compliance with Rule 600”); accord
Commonwealth v. Sloan, 67 A.3d 1249, 1254 (Pa.Super. 2013). Again,
where compliance with the Rule is a potential issue, due diligence requires the
Commonwealth to be proactive and bring the problem to the court’s attention.
See Aaron, 804 A.2d at 44.
In the instant case, when the trial court rescheduled the trial to its first
available date, the Commonwealth did not alert the court to any potential Rule
600 issue. See N.T. Hearing, 8/29/29, at 20. Accordingly, we agree with the
trial court that the Commonwealth did not prove that it exercised due diligence
during the period following the June 28, 2019 continuance. As such, we
conclude that the court did not abuse its discretion when it found that delay
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attributable to the Commonwealth, and granted Therrien’s Rule 600 motion to
dismiss because the Commonwealth had not brought Therrien’s case to trial
within the allocated time.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/04/2021
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