Com. v. Fraschetti, A. ( 2020 )


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  • J-S43001-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee                :
    :
    v.                             :
    :
    ALBERT FRASCHETTI                          :
    :
    Appellant               :      No. 1950 MDA 2018
    Appeal from the Judgment of Sentence Entered June 22, 2018
    In the Court of Common Pleas of York County
    Criminal Division at No(s): CP-67-CR-0007677-2016
    BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
    MEMORANDUM BY GANTMAN, P.J.E.:                 FILED: FEBRUARY 7, 2020
    Appellant, Albert Fraschetti, appeals from the judgment of sentence
    entered in the York County Court of Common Pleas, following his jury trial
    conviction for indecent assault of a person with a mental disability.1 For the
    following reasons, we vacate the conviction and judgment of sentence, and
    discharge Appellant.
    The relevant facts and procedural history of this case are as follows. In
    2016, Appellant was an in-home aide for Victim, an adult male with Down
    Syndrome.      In July 2016, Victim’s mother reviewed home-security camera
    footage of Victim and Appellant.          The video showed Appellant had fondled
    Victim’s nipples and had Victim reciprocate the act upon Appellant, kissed
    ____________________________________________
    1   18 Pa.C.S.A. § 3126(a)(6).
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
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    Victim, and exposed and touched himself while Victim played with a doll.
    On November 7, 2016, the Commonwealth filed a criminal complaint
    against Appellant in York County. The York County Court of Common Pleas
    schedules criminal jury trials by term every other month. Additionally, York
    County adopted a local rule to manage criminal cases in compliance with
    Pa.R.Crim.P. 600. See Y.C.L.R.Crim.P. 600. Under York County Local Rule
    600, the York County District Attorney’s Office assembles a “Rule 600 list” that
    ranks all cases the district attorney intends to call to trial that term by Rule
    600 priority, along with an estimated length for the trial for each case. Before
    the start of a trial term, the Commonwealth submits the list to court
    administration, who assigns cases from the Rule 600 list to the five criminal
    courtrooms in the York County Court of Common Pleas as the courtrooms
    become available throughout the trial term.2
    On February 6, 2017, the court conducted a pre-trial conference in this
    case. During the conference, Appellant requested a delay in listing the case
    for trial during the March 2017 trial term, which began on March 6, 2017, to
    allow defense counsel time to communicate with potential trial witnesses. The
    trial court granted Appellant’s request and instructed the Commonwealth to
    ____________________________________________
    2Prior to September 2017, under a previous version of York County Local Rule
    600, the Commonwealth submitted to each individual criminal judge a
    Rule 600 list which included only cases pending before that judge in a
    given trial term. Each judge called cases to trial only from that judge’s own
    Rule 600 list throughout a trial term.
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    list the case during the May 2017 trial term (May 8, 2017, through May 26,
    2017). The Commonwealth, however, did not include Appellant’s case on the
    Rule 600 list for the May 2017 trial term, and Appellant’s case did not proceed
    to trial in May 2017. Instead, the Commonwealth put Appellant’s case for the
    first time on the Rule 600 list for the July 2017 trial term (July 10, 2017,
    through July 21, 2017), and designated the case as number 149 in Judge
    Snyder’s courtroom that term. Approximately 30 cases from Judge Snyder’s
    July 2017 list went to trial in July 2017; Appellant’s case did not go to trial.
    The next trial term was the September 2017 trial term (September 5,
    2017, through September 22, 2017).         The Commonwealth put Appellant’s
    case on the September 2017 trial term Rule 600 list as number 288 out of 370
    overall, and estimated the trial would last one and one-half (1½) days. Court
    administration did not call Appellant’s case for trial during the September 2017
    term or skip over the case. According to the court administrator, he “never
    got that far down the list” in September 2017.         (N.T. Rule 600 Hearing,
    3/19/18, at 25).    Several cases with higher priority numbers involving the
    attorneys in Appellant’s case were among the cases the court administrator
    did call to trial in September 2017.
    The next trial term was the November 2017 trial term (October 30,
    2017, through November 3, 2017, and November 13, 2017, through
    November 17, 2017). Appellant’s case appeared as a two-day trial at number
    177 out of 303 cases on the Rule 600 list for the November 2017 trial term.
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    Again, court administration did not call Appellant’s case to trial. Per the court
    administrator, “we did not get to that case number, 177. We may have [gone]
    past it based on date certain cases.” (Id. at 26). The Commonwealth did not
    request a date certain for the next trial term.
    The next trial term was the January 2018 trial term (January 2, 2018,
    through January 18, 2018).      On the January 2018 term Rule 600 list, the
    Commonwealth put Appellant’s case at number 74 out of 227, and estimated
    the trial would last two and one-half (2½) days. Court administration skipped
    Appellant’s case during the January 2018 term multiple times for various
    reasons. Defense counsel was unavailable on January 5, 2018, and January
    8, 2018, and the prosecutor on the case was unavailable on January 9, 2018.
    On January 9 and 10, 2018, defense counsel, a public defender, was on trial
    in a case with a higher priority number on the January 2018 trial list. Court
    administration did not call Appellant’s case for trial on Thursday and Friday,
    January 11 and 12, 2018, due to the projected length of the case.          Court
    administration again skipped Appellant’s case on January 16 through 18,
    2018, because both attorneys were trying a case together.                  Court
    administration bypassed Appellant’s case on January 19, 2018, as defense
    counsel was to begin trying another case with a higher priority number that
    day. Ultimately, Appellant’s case did not go to trial during the January 2018
    term. On January 31, 2018, the Commonwealth requested a date certain trial.
    The trial court granted the Commonwealth’s request on February 1, 2018, and
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    scheduled Appellant’s trial for March 19, 2018.
    Appellant filed a motion to dismiss pursuant to Pa.R.Crim.P. 600 on
    March 16, 2018, asserting (i) only some of the time from the February 6th pre-
    trial conference through the start of the May 2017 trial term was excludable
    delay and (ii) the Commonwealth failed to exercise due diligence in bringing
    Appellant’s case to trial.   On March 19, 2018, the Commonwealth filed a
    response to Appellant’s motion, in which it stated, inter alia, it had placed
    Appellant’s case on the “ready list” each trial term since July 2017. That same
    day, the court conducted a hearing on Appellant’s Rule 600 motion.
    At the start of the hearing, the parties discussed whether any delay had
    resulted from Appellant’s February 6, 2017 pre-trial conference request to list
    the case for May 2017 term, rather than the March 2017 term. Appellant
    claimed the period February 6, 2017−March 6, 2017, did not constitute
    “delay” but was merely the normal progression of the case, because the first
    possible date for trial was March 6, 2017, the start of the March 2017 trial
    term. Appellant conceded the period from March 6, 2017−May 8, 2017, was
    excludable, in light of his pre-trial conference request to delay listing his case
    until the May 2017 trial term.
    The Commonwealth countered the entire period from February 6, 2017,
    through May 8, 2017, was excludable delay, extending the adjusted trial run
    date to February 7, 2018.     During the exchange, however, the prosecutor
    acknowledged, “The Commonwealth wouldn’t have been able to go to trial
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    either from that February pre-trial conference date until when it was listed out
    a term to the beginning of the May trial term.”       (N.T. Rule 600 Hearing,
    3/19/18, at 5). The trial court agreed with the Commonwealth’s rationale,
    and determined the time from February 6, 2017, through May 8, 2017, was
    excludable delay due to Appellant’s February 6th request.
    Additionally, the Commonwealth presented the testimony of two
    witnesses, a York County assistant district attorney (“ADA”) and the court
    administrator. The ADA testified he is responsible for compiling the Rule 600
    list each trial term. He explained how he composes the Rule 600 list and how
    cases proceed to trial from the list:
    … Obviously, in coordination with [ADA’s]. …I would be
    notified as to what cases were ready for trial. At any given
    time, obviously. One thing that would be played is obviously
    if a case were set by a judge as a date certain, that certainly
    would have gone at the top of that list. …
    *     *    *
    [O]ur attorneys are certainly to let me know which cases
    are ready to and able to proceed to trial at any given time.
    [Under York County Local Rule 600,] we are to check our
    witnesses’ availability…. We are also required to check with
    defense counsel to see if they have any unavailability during
    the term. … [O]ur office and our attorneys have been
    instructed to put that list together in a Rule 600 priority,
    unless for some reason it is unable to go at any given time.
    There may be certain cases based on the nature of the
    offense in which we would want [nameable] case to be
    bumped up ahead of just a mechanical run date. But, again,
    that would be up to the attorney to place it in that order.
    Otherwise, it would be placed again in order of Rule 600
    priority.
    *     *    *
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    [Under the current Local Rule 600,] the list is essentially
    created…, it is all five criminal courtrooms together in a
    combined list in the order in which the Commonwealth
    would like the cases called, barring a date certain or a judge
    certain case, then just court administration would call those
    in that order, again barring that, or, an attorney’s
    unavailability who may be tied up in another courtroom or
    a witness’s unavailability on the Commonwealth or defense
    side.
    (Id. at 15, 17, 19). The ADA added, “Ultimately it is incumbent upon the
    ADA’s” to ensure Rule 600 compliance through the Rule 600 list. (Id. at 18).
    The court administrator testified he assigns cases from the Rule 600 list
    “primarily in the order [in] which they are listed to the courtrooms as they
    become available, taking into consideration the unavailability of any witnesses
    or the attorneys in the case.” (Id. at 22). When he chooses cases to proceed
    to trial, the court administrator also takes into account the projected length
    of a case. For example, court administration will not call a three-day case to
    trial on a Thursday. (Id. at 21-30).
    At the conclusion of the March 19, 2018 hearing, the court denied
    Appellant’s Rule 600 motion. The court explained its rationale on the record,
    in pertinent part, as follows:
    I understand the due diligence argument, but we are at
    February 7th of 2018. …
    *     *    *
    So, as far as I am concerned, the issue as far as due
    diligence is did due diligence occur after that date.
    *     *    *
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    The Commonwealth has 365 days to bring a case to trial
    from the date the complaint is filed. The question of due
    diligence doesn’t come into play for that period of
    time. Now, it does come into play after that period of
    time has elapsed. To me, the only time that due diligence
    would be of interest prior to that time is if there is an
    allegation the Commonwealth just hasn’t been doing
    anything for the last year on anything.
    So the question then is what is the argument for the period
    of time since February 7th of 2018? Is there any?
    *    *    *
    …     And, frankly, from what I’ve heard, I think [the
    Commonwealth] ha[s] exercised due diligence.             They
    certainly haven’t been sitting on their hands in this case or
    any other case. I think you know, or expect that you would
    agree with the [c]ourt that the public defender’s office, the
    district attorney’s office, and the judges that are assigned
    to do criminal jury trials are pretty busy. … There is nothing
    that tells me that the Commonwealth was not acting with
    due diligence regarding the September or November terms.
    The fact that one case—the fact it may have been a case
    that had some lesser priority than this case, I don’t think
    that in itself is demonstrating lack of due diligence.
    *    *    *
    (Id. at 32-34) (emphasis added). That day, Appellant proceeded to a jury
    trial. On March 22, 2018, the jury convicted Appellant of one count of indecent
    assault of a person with a mental disability. The court sentenced Appellant
    on June 22, 2018, to two and one-half (2½) to five (5) years’ incarceration.
    On July 2, 2018, Appellant filed a timely post-sentence motion, which the
    court denied on October 30, 2018. Appellant timely filed a notice of appeal
    on November 27, 2018. The trial court ordered Appellant on November 29,
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    2018, to file a concise statement of errors complained of on appeal per
    Pa.R.A.P. 1925(b); Appellant timely complied on December 20, 2018.
    Appellant raises two issues for our review:
    DID THE TRIAL COURT ERR IN DENYING [APPELLANT]’S
    MOTION TO DISMISS FOR VIOLATION OF RULE 600 WHERE
    THE MINIMUM DELAY THAT CANNOT BE EXCLUDED WAS
    403 DAYS AND THE COMMONWEALTH’S PURPORTED
    EFFORTS TO TRY THIS CASE ON TIME ESTABLISHED ONLY
    PRO FORMA ACTIONS THAT DO NOT AMOUNT TO DUE
    DILIGENCE?
    DID THE TRIAL COURT ERR IN FINDING [VICTIM]
    INCOMPETENT TO TESTIFY IN THE ABSENCE OF ANY
    INDICATION THAT EITHER PARTY INTENDED TO PRESENT
    HIS TESTIMONY OR ANY OBJECTION TO HIS COMPETENCY,
    AND IN COMPOUNDING THAT ERROR BY INSTRUCTING THE
    JURY THAT [VICTIM] HAD BEEN DEEMED INCOMPETENT IN
    A WAY THAT CONFUSED THE JURY ON A KEY ELEMENT ON
    WHICH THE EVIDENCE WAS CLOSELY BALANCED?
    (Appellant’s Brief at 5).
    In his first issue, Appellant argues his speedy trial rights were violated,
    because trial commenced more than a year after the Commonwealth filed its
    criminal complaint. Appellant contends the trial court incorrectly calculated
    the number of days of excludable time.       Appellant notes Pennsylvania law
    provides time during which neither party is ready or able to proceed to trial is
    not excludable or excusable time, but he concedes the period from March 6,
    2017, through May 8, 2017, was excludable due to his pre-trial conference
    request to postpone the listing of his case for trial.   Appellant claims York
    County Local Rule 600 authorizes the Commonwealth to determine the order
    in which cases proceed to trial based upon the Commonwealth’s prioritization
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    of cases on its Rule 600 list. Appellant insists the Commonwealth’s inclusion
    of Appellant’s case on its Rule 600 lists for each trial term at any priority is
    merely pro forma conduct which, without more, does not demonstrate the
    Commonwealth acted with due diligence to bring Appellant’s case to trial in a
    timely manner. Appellant also avers the Commonwealth’s mere inclusion of
    his case on a given Rule 600 list does not establish the Commonwealth was
    ready to go to trial, as the Commonwealth cannot possibly be ready to proceed
    to trial on all cases on a list that includes between 200 and 300 cases.
    Appellant maintains the Commonwealth’s request for a date certain trial, after
    his Rule 600 rights had already been violated, does not demonstrate due
    diligence.   Appellant complains the trial court incorrectly determined the
    Commonwealth had acted with due diligence, as the court considered the
    Commonwealth’s conduct (i) during only a portion of the pre-trial period and
    (ii) with regard to its management of other cases called to trial before
    Appellant’s case, rather than its management just of Appellant’s case.
    Appellant concludes this Court should vacate his conviction and judgment of
    sentence and discharge him. We agree relief is due.
    “In evaluating Rule 600 issues, our standard of review of a trial court’s
    decision is whether the trial court abused its discretion.” Commonwealth v.
    Hunt, 
    858 A.2d 1234
    , 1238 (Pa.Super. 2004) (en banc), appeal denied, 
    583 Pa. 659
    , 
    875 A.2d 1073
    (2005). “An abuse of discretion is not merely an error
    of judgment, but if in reaching a conclusion the law is overridden or misapplied
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    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. Andrews, 
    213 A.3d 1004
    , 1010
    (Pa.Super. 2019).
    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.
    
    Hunt, supra
    at 1238-39 (internal citations and quotation marks omitted).
    Our Supreme Court has explained:
    Rule 600 was designed to prevent unnecessary
    prosecutorial delay in bringing a defendant to trial. For
    purposes of calculating whether a defendant is brought to
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    trial within the time constraints of Rule 600, requiring that
    commencement of trial be marked by a substantive, rather
    than a pro forma, event prevents the Commonwealth from
    manipulating the Rule 600 clock by initiating superficial or
    non-substantive court proceedings.       Requiring that the
    commencement of trial be marked by a substantive event
    places an obligation on the Commonwealth to ensure that
    the spirit behind Rule 600 is not compromised.
    Commonwealth v. Brock, 
    619 Pa. 278
    , 290, 
    61 A.3d 1015
    , 1021-22 (2013)
    (emphasis in original).
    Rule 600 sets forth the speedy trial requirements and provides in
    pertinent part:
    Rule 600. Prompt Trial
    (A) Commencement of Trial; Time for Trial
    *     *      *
    (2) Trial shall commence within the following time periods.
    (a) 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.
    *     *      *
    (C) Computation of Time
    (1) For purposes of paragraph (A), periods of delay at any
    stage of the proceedings caused by the Commonwealth
    when the Commonwealth has failed to exercise due
    diligence shall be included in the computation of the time
    within which trial must commence. Any other periods of
    delay shall be excluded from the computation.
    *     *      *
    (3)(a) When a judge or issuing authority grants or denies
    a continuance:
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    (i)   the issuing authority shall record the identity of the
    party requesting the continuance and the reasons for
    granting or denying the continuance; and
    (ii)  the judge shall record the identity of the party
    requesting the continuance and the reasons for granting
    or denying the continuance. The judge also shall record
    to which party the period of delay caused by the
    continuance shall be attributed, and whether the time will
    be included in or excluded from the computation of the
    time within which trial must commence in accordance
    with this rule.
    *       *    *
    (D) Remedies
    (1) When a defendant has not been brought to trial within
    the time periods set forth in paragraph (A), at any time
    before trial, the defendant’s attorney, or the defendant if
    unrepresented, may file a written motion requesting that
    the charges be dismissed with prejudice on the ground that
    this rule has been violated. A copy of the motion shall be
    served on the attorney for the Commonwealth concurrently
    with filing. The judge shall conduct a hearing on the motion.
    *       *    *
    Pa.R.Crim.P. 600(A)(2)(a), (C)(1, 3(a)), (D)(1).3 “Rule 600 generally requires
    the Commonwealth to bring a defendant…to trial within 365 days of the date
    the complaint was filed.” 
    Hunt, supra
    at 1240. To obtain relief, a defendant
    must have a valid Rule 600 claim at the time he files his motion for relief. 
    Id. at 1243.
    ____________________________________________
    3 On October 1, 2012, a new Rule 600 was adopted, effective July 1, 2013.
    The relevant provisions of the current version of the Rule remain substantively
    similar to those in the former version of the Rule.
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    “The mechanical run date is the date by which the trial must commence
    under Rule 600.” Commonwealth v. McNear, 
    852 A.2d 401
    , 406 (Pa.Super.
    2004).
    It is calculated by adding 365 days (the time for
    commencing trial under Rule 600) to the date on which the
    criminal complaint is filed. The mechanical run date can be
    modified or extended by adding to the date any periods of
    time in which delay is caused by the defendant. Once the
    mechanical run date is modified accordingly, it then
    becomes an adjusted run date.
    
    Id. In the
    context of Rule 600, “excludable time” is differentiated from
    “excusable delay” as follows:
    “Excludable time” is defined in Rule 600(C) as the period of
    time between the filing of the written complaint and the
    defendant’s arrest, provided that the defendant could not be
    apprehended because his whereabouts were unknown and
    could not be determined by due diligence; any period of time
    for which the defendant expressly waives Rule 600; and/or
    such period of delay at any stage of the proceedings as
    results from: (a) the unavailability of the defendant or the
    defendant’s attorney; (b) any continuance granted at the
    request of the defendant or the defendant’s attorney.
    “Excusable delay” is not expressly defined in Rule 600, 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.
    
    Hunt, supra
    at 1241 (internal citations and footnote omitted).
    Rule   600   requires   the   trial   court   to   determine   whether   the
    Commonwealth exercised due diligence. Commonwealth v. Selenski, 
    606 Pa. 51
    , 59, 
    994 A.2d 1083
    , 1088 (2010); Pa.R.Crim.P. 600, Comment. “The
    Commonwealth bears the burden of proving due diligence by a preponderance
    of the evidence.” Commonwealth v. Burno, 
    638 Pa. 264
    , 14, 
    154 A.3d 764
    ,
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    794 (2017).
    Due 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.
    Commonwealth v. Brown, 
    875 A.2d 1128
    , 1138 (Pa.Super. 2005), appeal
    denied, 
    586 Pa. 734
    , 
    891 A.2d 729
    (2005) (quoting 
    Hunt, supra
    at 1241-42)
    (emphasis in original). “Due diligence includes, among other things, listing a
    case for trial prior to the run date, preparedness for trial within the run date,
    and keeping adequate records to ensure compliance with Rule 600.”
    Commonwealth v. Ramos, 
    936 A.3d 1097
    , 1102 (Pa.Super. 2007) (en
    banc), appeal denied, 
    597 Pa. 705
    , 
    948 A.2d 803
    (2008). “To effectuate the
    purpose of Rule 600, the Commonwealth should be held to the requirement
    that it exercise due diligence at all times during the pendency of a case.”
    Commonwealth v. Robbins, 
    900 A.2d 413
    , 415 (Pa.Super. 2006), appeal
    denied, 
    589 Pa. 720
    , 
    907 A.2d 1102
    (2006) (internal quotation marks
    omitted) (emphasis added). See also 
    Burno, supra
    at 
    313-14, 154 A.3d at 793-94
    (explaining excusable delay is not calculated against Commonwealth
    in Rule 600 analysis, as long as Commonwealth acted with due diligence at
    all relevant times).
    Absent a demonstration of due diligence, establishing that
    the Commonwealth has done everything reasonable within
    its power to guarantee that the trial begins on time, the
    Commonwealth’s failure to bring the defendant to trial
    before the expiration of the Rule 600 time period constitutes
    grounds for dismissal of the charges with prejudice.
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    Commonwealth v. Barbour, 
    647 Pa. 394
    , 399-400, 
    189 A.3d 944
    , 947
    (2018) (internal citation and quotation marks omitted).
    “[T]ime attributable to the normal progression of a case simply is not
    ‘delay’ for purposes of Rule 600.” Commonwealth v. Mills, 
    640 Pa. 118
    ,
    122, 
    162 A.3d 323
    , 325 (2017). Where the court enters a continuance:
    If the defense does indicate approval or acceptance of the
    continuance, the time associated with the continuance is
    excludable under Rule 600 as a defense request.
    Significantly,   when     the    defendant     signs   the
    Commonwealth’s motion for postponement and registers no
    objection to the postponement…the signed consent without
    objection can be interpreted as consent to the new date….
    
    Hunt, supra
    at 1241 (internal citations omitted). Additionally, “where a trial-
    ready prosecutor must wait…due to a court calendar, the time should be
    treated as ‘delay’ for which the Commonwealth is not accountable.” 
    Mills, supra
    at 
    122, 162 A.3d at 325
    (emphasis added). Further, it is “inconsistent
    with both the letter and spirit of Rule 600” to state “time during which no one
    is prepared for trial—or even possibly could be ready—is ‘delay.’” 
    Id. See also
    Robbins, supra 
    at 415 (stating: “Where the Commonwealth was
    prepared to proceed throughout the pendency of a case, it demonstrated that
    it was prosecuting the defendant’s case with due diligence”).
    Generally, “delays caused by pretrial motions constitute excludable time
    where    the   pretrial   motion   renders    the   defendant    unavailable.”
    Commonwealth v. Hill, 
    558 Pa. 238
    , 250, 
    736 A.2d 578
    , 585 (1999).
    However, the mere filing of a pretrial motion by a defendant
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    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. If a delay is created, in order to establish that the
    delay is excludable, the Commonwealth must demonstrate,
    by a preponderance of the evidence, that it exercised due
    diligence in opposing or responding to the pretrial motion.
    
    Id. at 254-55,
    736 A.2d at 587 (internal citations and footnote omitted).
    York County Local Rule 600 provides, in relevant part, as follows:
    Rule 600. Prompt Trial
    (A) The purpose of this rule is to ensure the efficient use
    of judicial resources, to provide sufficient judicial resources
    to the Commonwealth’s prosecuting agencies for the cases
    they intend to call for trial, and to ensure defendants receive
    reasonable notice of the jury term during which their trials
    will commence. Nothing in this rule shall limit or expand
    upon the provisions of Pa.R.Crim.P. 600 regarding
    calculation of time for commencement of trial.
    (B)   Definitions.
    *    *    *
    (3) Date-certain scheduling means the assigned judge,
    upon request of either party or sua sponte, orders that the
    trial shall commence on a specific date before any judge. …
    (4) Date-and-judge-certain      scheduling    means     the
    assigned judge, upon request of either party or sua sponte,
    orders that the trial shall commence on a specific date
    before that same judge. …
    (C) No later than five business days prior to the first day
    of the trial term, the district attorney shall provide to the
    district court administrator, in a format to be prescribed by
    the district court administrator, a written list of all cases the
    district attorney intends to call to trial in the trial term.
    (1) The district attorney shall compile the list in order of
    priority for which the district attorney desires the court to
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    J-S43001-19
    allocate judicial resources for trial.
    *     *      *
    (3) Prior to submission of the list, the district attorney
    shall consult with each defendant’s attorney or the self-
    represented defendant to determine the following
    information:
    (a) the estimated length of time in days the parties
    jointly anticipate the trial to last from voir dire through
    closing instructions;
    (b) any dates during the forthcoming term when either
    party will be unable to conduct the trial for any reason,
    including but not limited to unavailability of witnesses or
    attorneys;
    (c)    the reason, if any exists, either party believes any
    specific judge of this court would be precluded from
    presiding over the trial in the event the currently
    assigned judge is unavailable when the district attorney
    calls the case to trial; and,
    (d) the reason, if any exists, why either party will
    require more than one hour of notice when directed to
    appear for trial.
    (D) Beginning no later than one business day prior to the
    first day of the jury trial term, the district court
    administrator shall assign cases for trial as each judge
    becomes available.
    (1) The district court administrator shall start with
    the first case on the list provided by the district
    attorney and proceed through the list in sequence,
    continuing until either the list is exhausted or the trial term
    ends. Any cases ordered for date-certain or date-and-judge
    certain scheduling shall be assigned out of sequence as
    necessary to comply with the order. The district court
    administrator may make minor deviations to the
    sequence in which cases are assigned, to facilitate the
    efficient use of judicial resources.
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    J-S43001-19
    (2) If the next case on the list cannot proceed to trial for
    any of the following reasons, the district court administrator
    shall skip to the next case on the list and return to the
    skipped cases when the next judge becomes available:
    (a) the court has previously ordered a date-certain or
    date-and-judge certain for the trial to commence later in
    the trial term;
    (b) the prosecuting attorney, defendant or defendant’s
    attorney is already in trial with another case or is
    scheduled for an imminent date-certain or date-and-
    judge-certain trial in another case; or
    (c)   one or more factors previously documented in
    section (C)(3) above preclude commencement of trial
    before the available judge.
    (E) The district court administrator shall notify the judge
    of the trial assignment, and the judge shall direct the parties
    to appear to commence jury selection.
    *     *      *
    Y.C.L.R.Crim.P. 600(A), (B)(3-4), (C)(1, 3), (D) (E) (emphasis added)
    (effective by September 2017).
    Instantly, the Commonwealth filed a complaint against Appellant on
    November 7, 2016. Therefore, the mechanical run date for Rule 600 purposes
    was November 7, 2017. See 
    McNear, supra
    . During the February 6, 2017
    pre-trial conference, the court (i) granted Appellant’s request to delay listing
    the case during the March 2017 trial term to allow Appellant time to contact
    potential trial witnesses and (ii) ordered the Commonwealth to list Appellant’s
    case for the May 2017 trial term, which began on May 8, 2017. As of the
    February 6, 2017 pre-trial conference, the earliest Appellant could have
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    J-S43001-19
    proceeded to trial was March 6, 2017, when the March 2017 trial term began.
    Thus, the 28-day period from February 6, 2017, through March 6, 2017, is
    neither excludable nor excusable delay; the parties could not have gone to
    trial during that time, which is attributable to the normal progression of the
    case. See 
    Mills, supra
    .
    To the extent Appellant appears to assert the period from March 6,
    2017, through the start of the May 2017 trial term on May 8, 2017, is not
    excludable or excusable because neither party was ready to proceed to trial,
    that argument is waived. Appellant did not raise that argument before the
    trial court and does not raise it expressly on appeal. See Pa.R.A.P. 2119(a);
    Commonwealth v. Johnson, 
    604 Pa. 176
    , 191, 
    985 A.2d 915
    , 924 (2009),
    cert. denied, 
    562 U.S. 906
    , 
    131 S. Ct. 250
    , 
    178 L. Ed. 2d 165
    (2010) (stating
    claim is waived where appellate brief does not include citation to relevant
    authority or fails to develop issue in any meaningful fashion capable of
    review). See also Pa.R.A.P. 302(a) (explaining general rule that issues not
    raised before trial court are waived and cannot be raised for first time on
    appeal).
    Rather, Appellant has conceded throughout the life of this case,
    including on appeal, that the time from March 6, 2017, through May 8, 2017,
    was excludable, due to his postponement request at the February 2017 pre-
    trial conference. Thus, the 62-day period from March 6, 2017, through May
    8, 2017, was excludable delay.       See 
    Hunt, supra
    .        Contrary to the
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    J-S43001-19
    Commonwealth’s contention at the Rule 600 hearing, only the 62 days
    between the start of the March 2017 trial term and the start of the May 2017
    trial term were excludable. As a result, the adjusted run date changed from
    November 7, 2017, to January 7, 2018, and not to February 7, 2018, as the
    Commonwealth claims. See 
    McNear, supra
    .
    Subsequently, the Commonwealth did not list Appellant’s case for the
    May 2017 trial term, and the case did not go to trial in May 2017. The record
    lacks any indication of the parties’ readiness to proceed to trial in May 2017
    or an explanation for the Commonwealth’s omission of the case from its Rule
    600 list. Thus, the 63-day period between the start of the May 2017 trial term
    (May 8, 2017) and the start of the July trial term (July 10, 2017) is neither
    excludable nor excusable time. See 
    Mills, supra
    .
    In July 2017, the Commonwealth placed Appellant’s case on a Rule 600
    list for the first time. In keeping with the previous version of Local Rule 600,
    the Commonwealth listed Appellant’s case for the July 2017 trial term, as case
    number 149 in Judge Snyder’s courtroom. Judge Snyder called approximately
    30 cases to trial in July 2017. Appellant’s case was not called.
    In   September    2017,   under   the   current   Local   Rule   600,   the
    Commonwealth listed Appellant’s case at number 288 of 370 cases. The court
    administrator did not call Appellant’s case to trial in September 2017. The
    record indicates, and the parties agree, that Judge Snyder and the court
    administrator did not call Appellant’s case to trial during the July and
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    J-S43001-19
    September 2017 trial terms, respectively, due to the position of Appellant’s
    case on the Commonwealth’s Rule 600 lists for those trial terms. The adjusted
    run date remained January 8, 2018. The period from the start of the July
    2017 trial term through the end of the September 2017 term constituted
    normal progression of the case, in light of the local practice in York County of
    prioritizing and selecting cases for trial as well as the January 8, 2018 adjusted
    run date, and was neither excludable nor excusable. See 
    id. For the
    November 2017 trial term, the Commonwealth designated
    Appellant’s case as number 177 out of 303 cases on the Rule 600 list. The
    court administrator did not call Appellant’s case to trial during the November
    2017 trial term, because he “did not get to that case number 177.” The 56-
    day period between the end of the September 2017 trial term through the
    November 2017 trial term (September 22, 2017, through November 17, 2017)
    constituted normal case progression, given the local practice in York County
    and January 2018 adjusted run date, and was neither excludable nor
    excusable delay. See 
    id. For the
    January 2018 trial term, the Commonwealth listed Appellant’s
    case as number 74 out of 227 cases on the January 2018 Rule 600 list.
    Appellant’s case did not go to trial in the January 2018 trial term for various
    reasons, several of which relate to the Commonwealth’s composition of the
    January 2018 Rule 600 list. For example, both attorneys were called into trials
    on other cases with higher priority numbers on the list throughout the January
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    J-S43001-19
    2018 trial term. Although the adjusted run date was January 8, 2018, the
    Commonwealth did not request a date-certain trial until January 31, 2018, 23
    days after the adjusted run date had passed and 13 days after the January
    2018 trial term had concluded.       Contrary to the trial court’s rationale the
    Commonwealth was required to act with due diligence for purpose of Rule 600
    throughout the course of Appellant’s case, not only after the adjusted run date
    had expired.    See 
    Burno, supra
    ; 
    Robbins, supra
    .             Consequently, the
    Commonwealth’s mere inclusion of Appellant’s case on its January 2018 Rule
    600 list, particularly at a position of only moderate priority, was insufficient to
    establish the Commonwealth acted with due diligence ahead of the January 8,
    2018 adjusted run date.      See 
    Ramos, supra
    ; 
    Brown, supra
    .            See also
    Commonwealth v. Williams, 
    125 A.3d 425
    , 430 n.6 (Pa.Super. 2015)
    (quoting Commonwealth v. Keller, 
    477 A.2d 523
    , 526 n.3 (Pa.Super.
    1984)) (providing local rules may not be utilized to render Pennsylvania Rules
    of Criminal Procedure meaningless). The 75-day period from the end of the
    November     2017    trial   term   or    November   17,   2017,    through    the
    Commonwealth’s request on January 31, 2018, for a date certain for trial does
    not constitute excludable or excusable delay. The Commonwealth’s failure to
    request a date-certain trial ahead of the January 2018 trial term shows the
    Commonwealth failed to act with due diligence in bringing Appellant’s case to
    trial in a timely manner. See 
    Ramos, supra
    ; 
    Brown, supra
    .
    Upon the Commonwealth’s January 31, 2018 date-certain request, the
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    J-S43001-19
    court scheduled Appellant’s trial for March 19, 2018. The Commonwealth’s
    date-certain request after the January 8, 2018 adjustable run date does not
    constitute due diligence. See 
    Ramos, supra
    ; 
    Brown, supra
    . On March 16,
    2018, Appellant filed a motion to dismiss per Rule 600. The court conducted
    a hearing and denied the motion on March 19, 2018. That same day, the
    parties proceeded to trial. The filing of Appellant’s Rule 600 motion did not
    delay the start of trial or cause any excludable delay. See 
    Hill, supra
    . Thus,
    the 46-day period from the Commonwealth’s January 31, 2018 date-certain
    request through the start of trial on March 19, 2018, is not excludable or
    excusable.
    The following chart summarizes the delays prior to trial:
    DATES                 ACTIVITY                  DAYS    EXCLUDABLE OR     ADJUSTED
    DELAY     EXCUSABLE       RUN DATE
    2/6/17-    At       pre-trial   conference, 28           No; first date 11/7/17
    3/6/17     Appellant requested delay in                  case could go to
    listing case until May 2017 trial             trial after pre-
    term to allow time to interview               trial conference
    potential witnesses                           was March 6,
    2017;      normal
    progression     of
    case
    3/6/17-    Appellant’s  requested      delay 62          Excludable;        1/8/18
    5/8/17     postponed his case for trial from             Appellant
    the March 2017 trial term until               conceded     time
    the May 2017 trial term                       was excludable
    5/8/17-    Commonwealth did not include 63               No; normal       1/8/18
    7/10/17    Appellant’s case on Rule 600 list             progression of
    for the May 2017 trial term;                  case
    Appellant did not proceed to trial
    - 24 -
    J-S43001-19
    7/10/17-    Commonwealth               listed 57         No;       normal 1/8/18
    9/5/17      Appellant’s case as number 149               progression   of
    for the July 2017 trial term;                case
    Appellant did not proceed to trial
    9/5/17-     Commonwealth                  listed    17   No;       normal 1/8/18
    9/22/17     Appellant’s case as number 288               progression   of
    out of 370 cases for the                     case
    September 2017 trial term;
    Appellant did not proceed to trial
    9/22/17-    Commonwealth                  listed    56   No;       normal 1/8/18
    11/17/17    Appellant’s case as number 177               progression   of
    out of 303 cases for the                     case
    November 2017 trial term;
    Appellant did not proceed to trial
    11/17/17    Commonwealth did not request            75   No;               1/8/18
    -1/31/18    a date-certain trial after the               Commonwealth
    November 2017 trial term but                 failed to request
    listed   Appellant’s     case     as         date certain for
    number 74 out of 227 cases for               trial before the
    the January 2018 trial term;                 adjusted run date
    Appellant did not proceed to trial
    1/31/18-    Commonwealth first requested a          46   No;                 1/8/18
    3/19/18     date certain for trial on 1/31/18;           Commonwealth
    court scheduled trial for 3/19/18            requested     date
    certain trial after
    adjusted run date
    had expired
    Given this record, viewed in the light most favorable to the
    Commonwealth, as well as Appellant’s concession of 62 days of excludable
    time, Appellant still proceeded to trial two months after the adjusted run date
    in his case and had a valid Rule 600 claim when he filed his motion. See
    
    Hunt, supra
    .      Here, the Commonwealth was primarily responsible for the
    delay in Appellant’s trial because it failed to list the case appropriately to
    ensure its priority, particularly when Appellant’s adjusted run date drew near.
    The Commonwealth must bear the burden of its own miscalculation of the
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    J-S43001-19
    adjusted run date. Further, the court administration took its cue from the
    Commonwealth’s Rule 600 priority list throughout the case, while trying to
    manage the caseloads during the various trial terms. It was incumbent chiefly
    upon the Commonwealth to list Appellant’s case to ensure trial would proceed
    within the reasonable parameters of Rule 600, including a timely request for
    a date certain for trial. Although other factors were involved, they do not
    serve to explain or excuse the Commonwealth’s failure to act with due
    diligence in this case. Accordingly, we vacate Appellant’s conviction and the
    judgment of sentence, and discharge Appellant.4
    Conviction and judgment of sentence vacated; Appellant is discharged.
    Jurisdiction is relinquished.
    Judge Dubow joins this memorandum.
    President Judge Emeritus Stevens files a dissenting memorandum.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 02/07/2020
    ____________________________________________
    4Due to our disposition, we decline to address Appellant’s remaining issue on
    appeal.
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