Com. v. Perez, V. ( 2021 )

J-S35039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR PEREZ :
:
Appellant : No. 1950 EDA 2019
Appeal from the Judgment of Sentence Entered May 22, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004137-2017
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 26, 2021
Appellant, Victor Perez, appeals from the aggregate judgment of
sentence of 10 to 20 years of confinement, which was imposed after his jury
trial convictions for: manufacture, delivery, or possession with intent to
manufacture or deliver a controlled substance by a person not registered
(“PWID”); intentionally possessing a controlled or counterfeit substance by a
person not registered; use of or possession with intent to use drug
paraphernalia; persons not to possess, use, manufacture, control, sell or
transfer firearms; possession of firearm with altered manufacturer’s number;
and criminal conspiracy to commit PWID.1 On appeal, Appellant asserts, inter
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (16), (32); 18 Pa. C.S. §§ 6105(a)(1),
6110.2(a), and 903, respectively.
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alia, that the trial court erred in denying his pre-trial motion filed pursuant to
Pa.R.Crim.P. 600. Upon careful review, we concur with Appellant and are
compelled to vacate his judgment of sentence.
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court fully and
correctly set forth the relevant facts of this case. See Trial Court Opinion,
dated October 15, 2019, at 1-3. Therefore, we have no reason to restate
them.
On June 6, 2017, Sergeant Michael Regan of the Cheltenham Township
Police Department executed a written criminal complaint against Appellant.2
On July 11, 2017, Appellant requested discovery. On September 6, 2017, the
Commonwealth e-mailed a discovery packet to defense counsel.
On September 12, 2017, a pre-trial conference was held before the
Honorable Gary S. Silow. Appellant later represented that, at the time of this
conference:
It is also very important to note the Commonwealth had failed to
comply with its[] requirements pursuant PA Rule of Criminal
Procedure 573 as full discovery had not been provided.
[Appellant] and his attorney were not able to properly defend the
case without complete discovery. Assis[t]ant DA
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2 The handwritten date on the complaint was June 5, 2017. The docket lists
the “Initiation Date” as June 6, 2017. The date-stamp on the complaint is
June 7, 2017. In their briefs, both parties state that criminal charges were
filed against Appellant on June 6, 2017, and we will accept this date as the
“start date” for this action. Appellant’s Brief at 11; Commonwealth’s Brief at
4.
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[Robert Joseph] Kolansky agreed to provide full discovery to the
undersigned counsel.
[Appellant]’s Memorandum in Support of Motion to Dismiss Criminal Charges
Pursuant to PA Rule of Criminal Procedure 600, 10/24/2018, at 2 (not
paginated) § C.3 Another pre-trial conference was held before Judge Silow on
October 25, 2017. Appellant again later stated that, at this conference, “the
Commonwealth had failed to comply with its[] requirements pursuant PA Rule
of Criminal Procedure 573 as full discovery had not been provided. [Appellant]
and his attorney were not able to properly defend the case without complete
discovery.” Id. at 3 § D.
On November 30, 2017, Appellant had a scheduled “Call of the Trial List”
court appearance but requested that his case be re-listed for the next term.
For this date, Appellant once again noted that “the Commonwealth had failed
to comply with its[] requirements pursuant PA Rule of Criminal Procedure 573
as full discovery had not been provided. [Appellant] and his attorney were
not able to properly defend the case without complete discovery.” Id. at 3-4
§ E.
Again, on December 21, 2017, Appellant had a scheduled “Call of the
Trial List” court appearance but requested that his case be re-listed. Appellant
also later represented that, by this date,
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3 The Commonwealth did not file a memorandum in response to Appellant’s
memorandum and thus did not contest these representations nor any other
representations therein.
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the Commonwealth had failed to comply with its[] requirements
pursuant PA Rule of Criminal Procedure 573 as full discovery had
not been provided. [Appellant] and his attorney were not able to
properly defend the case without complete discovery. Assis[t]ant
DA Kolansky agreed to provide full discovery to the undersigned
counsel.
Id. at 4 § F.
This sequence repeated on January 24, 2018, and Appellant again
observed, that, on this date:
It is also very important to note the Commonwealth had failed to
comply with its[] requirements pursuant PA Rule of Criminal
Procedure 573 as full discovery had not been provided.
[Appellant] and his attorney were not able to properly defend the
case without complete discovery. Assis[t]ant DA Kolansky agreed
to provide full discovery to the undersigned counsel.
Id. at 5 § G. Unlike the previous continuances, the “Call of the Trial List
Order” included a handwritten notation: “600 Waiver Signed /for RL
Motions.”4 However, no such waiver appears in the certified record nor listed
on the certified docket. Appellant would later represent that “[t]here was no
Rule 600 Waiver executed by” him on that date. Id. at 4-5 § G.
On February 21, 2018, Appellant requested that his matter be re-listed
for the May 2018 “Call of the Trial List.” He once more later asserted about
this date:
It is also very important to note the Commonwealth had failed to
comply with its[] requirements pursuant PA Rule of Criminal
Procedure 573 as full discovery had not been provided.
[Appellant] and his attorney were not able to properly defend the
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4We believe that “RL Motions” means that the case was relisted for a hearing
on certain motions, but there is no additional explanation in the record.
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case without complete discovery. Assis[t]ant DA Kolansky agreed
to provide full discovery to the undersigned counsel.
Id. at 5 § H. Two days later, Appellant made a further request that his case
be moved to the June 2018 “Call of the Trial List,” which was granted.
On May 11, 2018, Appellant filed an omnibus pretrial motion that
included the following motion to compel additional discovery:
6. The initial discovery packet, provided on September 6, 2017
via email, is not complete.
7. The Commonwealth has failed to provide any written
statements of other individuals who were arrested along with
[Appellant], namely: Robert Stephenson, Ronald Raffle,
Pamela Desantis and Jeffrey Christianson.
8. The Commonwealth has failed to provide the criminal record
of Robert Stephenson, Ronald Raffle, Pamela Desantis and
Jeffrey Christianson.
9. The Commonwealth has failed to provide the results and
reports of any scientific tests of all evidence recovered by the
Cheltenham Police Department.
10. The Commonwealth has failed to provide all documents,
photographs, and fingerprint analysis of all evidence recovered by
the Cheltenham Police Department.
11. The Commonwealth has failed to provide the names and
addresses of any witnesses it intends to call at trial against
[Appellant].
12. The Commonwealth has failed to provide fingerprint
impressions, blood samples, clothing, hair, fiber, or other
materials that have been tested by any scientific laboratory as
part of this investigation[.]
Omnibus Pre-trial Motion, 5/11/2018, at ¶¶ 6-12. The omnibus pre-trial
motion also included a motion to suppress evidence. Id. at ¶¶ 19-23.
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A hearing was scheduled on the suppression motion on May 16, 2018.
Although all parties were present, the Commonwealth requested a
continuance, which the trial court granted, rescheduling the hearing for
July 27, 2018. While Appellant’s counsel and the prosecutor were in the
courtroom in May 2018, the Commonwealth gave Appellant’s counsel a
statement of a witness, Pamela Desantis, that had been taken on the day of
the incident on June 5, 2017; this statement had not previously been provided
in discovery. N.T., 10/24/2018, at 5-6.
On July 19, 2018, Appellant again had a scheduled “Call of the Trial List”
court appearance but requested a re-list. The suppression hearing was then
continued again due to a court conflict.
On August 30, 2018, the trial court held a hearing on the suppression
motion, at which the Commonwealth provided a dash-cam video of Appellant’s
arrest; defense counsel noted for the record that he was seeing the video for
the first time that day, as it had not been provided in discovery. N.T.,
8/30/2018, at 56. The trial court denied the suppression motion.
On October 11, 2018, Appellant’s counsel filed a Motion to Dismiss
Charges Pursuant to PA Rule of Criminal Procedure 600 (“Rule 600 Motion”),5
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5Appellant had filed a pro se motion to dismiss on August 27, 2018. His
motion was incorporated into the counseled Rule 600 Motion.
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contending that the Commonwealth had violated Pa.R.Crim.P. 600(A)(2).6
Rule 600 Motion, 10/11/2018, at ¶ 6. The Rule 600 Motion pleaded that, as
of the date that it was filed, “the case has been pending for 493 days,”7
because the Commonwealth “did not exercise due diligence” in bringing
Appellant’s case to trial. Id. at ¶¶ 8, 13. On October 15, 2018, the
Commonwealth filed an Answer to the Rule 600 Motion; the answer did not
discuss whether the Commonwealth had failed to provide any discovery to
Appellant nor give any reasons for any delay in delivering discovery to him.
See generally Answer to Rule 600 Motion, 10/15/2018.
On October 15 and 24, 2018, the trial court held hearings on the Rule
600 Motion. At the hearings, Appellant’s counsel stated:
[T]here [are] a number of continuances that I would propose to the
Court that were not requested by the defense. . . . And essentially,
I would point out to Your Honor that, throughout the pendency of this
case, I had consistently requested from Mr. Kolansky discovery to be
complete and full and provided, so that my client and I are able to
prepare for trial.
N.T., 10/24/2018, at 4. Appellant’s counsel continued that, on the day that
the suppression hearing was originally scheduled to occur in May 2018,
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6 Pa.R.Crim.P. 600(A)(2) lists five “time periods” by which “[t]rial shall
commence[.]” The only one applicable to Appellant is Pa.R.Crim.P.
600(A)(2)(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.”
7The Commonwealth did not dispute Appellant’s figure of 493 days. See
generally Answer to Rule 600 Motion, 10/15/2018.
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I’m getting a witness statement that has been handed to me on
May 16th, 2018 that was taken June 5th of 2017. It says it right
on the witness statement. The woman’s name is
Pamela Desant[i]s. She is one of the individuals that was
allegedly part of the car stop and was in one of the cars.
Id. at 6. Appellant’s counsel added that, when the suppression hearing
finally occurred on August 30, 2018, the Commonwealth –
hands me for the first time a copy of a [d]ash[-]cam video from
the police car of one of the witnesses who testified at the
suppression hearing of the whole incident on video.
Now, once again, obviously, that is 14 months post arrest. The
video was created contemporaneously right with when the
incident occurred. And once again, my client and I are not able
to properly prepare for a hearing or for the case in general when
we are not being provided full discovery.
Id. at 7. The Commonwealth answered these allegations as follows:
[W]ith regard to the discovery issues brought up by [Appellant’s
counsel] today, I think [Appellant’s counsel] would agree with me
that on both of those occasions when discovery was turned over
pursuant to my continuing duty to disclose, both items were made
-- I was made aware of on the day they were disclosed. It was
never a situation where I knew of the existence of something,
I sat on it for a while, I chose not to give it to the defense and
then I gave it to them.
On both of those dates, because they were, in fact, court dates
that we should be here to litigate the case or to handle a matter
related to the case, I was provided with new discovery from police,
made copies immediately and came prepared to turn them over
to defense counsel that day. So I don’t believe that there is any
delay that was caused by either of those.
In fact, on one of those days, we went forward with [Appellant]’s
motion to suppress. We litigated it that day. So there was no
delay that should be attributed to the disclosure of discovery
pursuant to my continuing duty to disclose when I became aware
of something.
Id. at 8.
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On October 25, 2018, the trial court entered an order denying the Rule
600 Motion and determining the final Rule 600 run date – i.e., the date by
which trial must commence – to be April 19, 2019, which had not yet occurred
as of the date of the order. Order, 10/25/2018. The order was accompanied
by findings of fact and conclusions of law, which included the following:
[Appellant] continued the case numerous times:
a. On November 30, 2017[, Appellant] requested a relist -
exclude 21 days.
b. On December 21, 2017, [Appellant] requested a relist -
exclude 34 days.
c. On January 24, 2018, [Appellant] requested a relist -
exclude 28 days.
d. On February 21, 2018, [Appellant] requested a relist -
exclude 84 days.
e. On July 19, 2018, [Appellant] requested a relist - exclude
27 days.
f. On September 26, 2018, [Appellant] requested a relist -
exclude 85 days.
Th[e trial c]ourt finds that all the above-mentioned defense
continuances are excludable time and should not be included in
the calculation of the Adjusted Run Date.[8] Further, th[e trial
c]ourt finds that the July 18, 2018, scheduling order from th[e
trial c]ourt rescheduling [Appellant]’s Suppression hearing from
July 27, 2018 until August 30, 2018 was not the result of any lack
of due diligence on the part of the Commonwealth and therefore
this additional 34 days is excusable time within the meaning of
Rule 600. . . . In conclusion, th[e trial c]ourt finds that there is a
total of 313 days of excludable and/or excusable time[.]
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8The concepts of “adjusted run date,” “excludable time,” and “excusable time”
are discussed in more detail below.
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Findings of Fact and Conclusions of Law, 10/25/2018, at 4-5.
On January 29, 2019, jury selection finally occurred, and Appellant’s
trial commenced the next day.9 After a two-day trial, Appellant was convicted
of the aforementioned charges. On May 22, 2019, the trial court sentenced
Appellant. On June 3, 2019, trial counsel filed a motion for reconsideration of
sentence, which was denied.
Appellant thereafter filed this timely direct appeal.10 On December 24,
2020, this Court ordered --
the Commonwealth and/or the trial court to produce the written
waiver referenced in the “Call of the Trial List Order” dated
January 24, 2018, within thirty days after receipt of this order. If
no written waiver is located, the trial court must indicate as much
to us. The record, including the waiver if located, should
thereafter be forwarded back to this Court.
Order, 12/24/2020, at 2. On January 5, 2021, the Commonwealth responded:
“The Commonwealth was ordered by this Court to produce the written Rule
600 waiver in the above-captioned case. After a diligent search, the
Commonwealth has concluded that it is not in possession of the defendant’s
written Rule 600 Waiver.” Letter from Marissa A. Booth, Assistant District
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9 The total number of calendar days that elapsed between the filing of the
criminal charges on June 6, 2017, and the commencement of Appellant’s trial
on January 30, 2019, was 603 days – which is greater than the 365 days
allotted by Pa.R.Crim.P. 600(A)(2)(a). However, Appellant’s challenge only
applies to the period prior to the suppression hearing on August 30, 2018.
Appellant’s Brief at 12.
10On October 1, 2019, Appellant filed his statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). On October 15, 2019, the trial court
entered its opinion pursuant to Pa.R.A.P. 1925(a).
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Attorney, to Benjamin Kohler, Esquire, Deputy Prothonotary (January 5,
2021).
Appellant now presents the following issues for our review:
1. Did the trial court err in failing to dismiss the criminal
charges against Appellant for violation of his speedy trial rights
under Rule 600 of the Pennsylvania Rules of Criminal Procedure?
2. Did the trial court err in failing to suppress evidence derived
from Appellant’s illegal seizure?
3. Did the trial court abuse its discretion in sentencing the
Appellant to an aggregate ten (10) to twenty (20) year prison
sentence?
4. Did the Commonwealth violate the Appellant’s due process
right guaranteed under Article 1, Section 9 of the Pennsylvania
Constitution and the 14th Amendment of the United States
Constitution in failing to disclose evidence in its possession and
control until commencement of trial?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Appellant first challenges the trial court’s denial of his Rule 600 Motion
and its “finding excusable and excludable delay where the Commonwealth
failed to exercise due diligence by failing to disclose mandatory discoverable
materials.” Id. at 10.
“[P]rompt-trial rulings are reviewed by the appellate courts for an abuse
of discretion.” Commonwealth v. Barbour, 189 A.3d 944, 953 (Pa. 2018)
(citation omitted).
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
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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.
Commonwealth v. Peterson, 19 A.3d 1131, 1135 (Pa. Super. 2011) (en
banc) (emphasis added) (citations and internal ellipses omitted).
“By the terms of Rule 600, the Commonwealth must bring a defendant
to trial within 365 days from the date upon which a written criminal complaint
is filed.” Barbour, 189 A.3d at 947. This first step “provides the mechanical
run date.” Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super.
2018) (emphasis in original) (citation omitted). “A defendant, however, is not
automatically entitled to discharge under Rule 600 where trial starts more
than 365 days after the filing of the complaint.” Commonwealth v. Roles,
116 A.3d 122, 125 (Pa. Super. 2015).
[T]he Rule 600 run date may be adjusted pursuant to the
computational directives set forth in Subsection (C) of the Rule.
For purposes of the Rule 600 computation, “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)(1). “Any other periods
of delay,” including those caused by the defendant, “shall be
excluded from the computation.” Id.Barbour, 189 A.3d at 947 (emphasis added).
“[D]ue diligence is fact-specific, to be determined case-by-case; it does
not require perfect vigilance and punctilious care, but merely a showing the
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Commonwealth has put forth a reasonable effort.” Commonwealth v.
Bradford, 46 A.3d 693, 701–02 (Pa. 2012).
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.
Barbour, 189 A.3d at 947 (internal brackets, citation, and quotation marks
omitted).
In the current action, the Commonwealth presented no evidence that it
ever contacted the investigating officer to request Desantis’s statement or the
dash-cam video or to inquire about any possibly missing discovery after
Appellant filed his omnibus pre-trial motion. See Omnibus Pre-trial Motion,
5/11/2018, at ¶¶ 6-12. In a Rule 600 proceeding, it is the Commonwealth’s
burden to demonstrate, by a preponderance of the evidence, that it put forth
reasonable effort. Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa.
2010); Commonwealth v. Rigoberto Ramos, 936 A.2d 1097, 1102 (Pa.
Super. 2007) (en banc) (“the Commonwealth bears the burden of proving its
efforts were reasonable and diligent”).
In Commonwealth v. Taylor, 598 A.2d 1000, 1001 (Pa. Super. 1991),
this Court held that a defense continuance, requested in order to conduct an
investigation based on newly-received discovery, was properly charged to the
Commonwealth, where the Commonwealth failed to act with due diligence in
obtaining the discovery materials from police. In that appeal, the
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Commonwealth made “two or three” follow-up requests to the police over a
period of slightly more than three months. Id. at 1002. In reversing the trial
court’s finding of due diligence, this Court stated that “[s]urely, the
Commonwealth could have done more in its attempt to secure the report from
the police than merely requesting the report two or three times.” Id. This
Court concluded that “[i]ts failure to do so show[ed] a lack of due diligence.”
Id. at 1002-03. See also Commonwealth v. Preston, 904 A.2d 1, 12 (Pa.
Super. 2006) (“[I]f the delay in providing discovery is due to either intentional
or negligent acts, or merely stems from the prosecutor’s inaction, the
Commonwealth cannot claim that its default was ‘excusable.’”) (emphasis
added).
Likewise, in the recent case of Commonwealth v. Felix Ramos, No.
3634 EDA 2018, unpublished memorandum at 10-11 (Pa. Super. filed May 22
2020),11 this Court found that the Commonwealth’s efforts “or lack thereof”
to obtain video evidence were not reasonable based on the record before it,
explaining:
More than one year passed between the date the investigating
officer requested the video surveillance evidence . . . and the date
the video evidence was passed to the defense. In that time, the
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11 Pursuant to Pa.R.A.P. 126(b) (effective May 1, 2019):
(1) As used in this rule, “non-precedential decision” refers to an
unpublished non-precedential memorandum decision of the
Superior Court filed after May 1, 2019 . . .
(2) Non-precedential decisions as defined in (b)(1) may be cited
for their persuasive value.
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prosecution apparently made no efforts to ascertain the status of
that request; nor did the Commonwealth provide an explanation
for the failure of the police to act more diligently in obtaining the
video. . . . When defense counsel—who was otherwise prepared
to proceed to trial—was compelled to ask for additional time to
review the video, it was as a direct result of the Commonwealth’s
lack of due diligence in obtaining the evidence and providing it to
the defense. As such, the trial court improperly excluded the
ensuing 217-day delay from its Rule 600 calculation.
Id. at 11.
Analogously, we do not find that the Commonwealth’s efforts to provide
outstanding discovery, including Desantis’s statement and the dash-cam
video, were reasonable based on the record before us. See id. at 10-11.
More than 11 months passed between the date of the investigation and the
date that Desantis’s statement was passed to the defense, and more than 14
months passed between the date of the investigation and the date that the
video evidence was passed to the defense. Compare id. at 11 with N.T.,
8/30/2018, at 56; N.T., 10/24/2018, at 5-7. In that time, the Commonwealth
apparently made no efforts to ascertain additional discovery, as requested in
Appellant’s omnibus pre-trial motion, nor did it provide an explanation for the
failure of the police to hand over the witness statement and video evidence
promptly and diligently. Compare Felix Ramos, No. 3634 EDA 2018, at 11,
with Omnibus Pre-trial Motion, 5/11/2018, at ¶¶ 7, 10; Answer to Rule 600
Motion, 10/15/2018; N.T., 10/24/2018, at 8. Even though the prosecutor
represented that he handed over all discovery to Appellant’s counsel as soon
as it was given to him, N.T., 10/24/2018, at 8, he could have done more to
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secure this additional discovery, and his inaction amounted to a lack of due
diligence. See Taylor, 598 A.2d at 1002 (“[s]urely, the Commonwealth could
have done more in its attempt to secure the report from the police”; “[i]ts
failure to do so shows a lack of due diligence”); see also Preston, 904 A.2d
at 12 (if delay “merely stems from the prosecutor’s inaction,” its time cannot
be excluded from the Rule 600 calculation). Appellant’s counsel was
compelled to ask for continuances as a direct result of the Commonwealth’s
lack of due diligence in obtaining the evidence and providing it to the defense.
See Felix Ramos, No. 3634 EDA 2018, at 11. As such, this period of delay
was properly chargeable to the Commonwealth as a result of its delay in
producing mandatory discovery, and the trial court improperly excluded this
period of delay from its Rule 600 calculation. See id.We note that the time period challenged in Appellant’s Rule 600 Motion
ends on August 30, 2018. Appellant’s Brief at 12. The trial court improperly
excluded a total of 194 days from its Rule 600 calculation prior to August 30,
2018. Findings of Fact and Conclusions of Law, 10/25/2018, at 5 ¶¶ a.-e. We
reach that total based on the following calculation:
21 days + 34 days + 28 days + 84 days + 27 days = 194 days
We include the 28 days between January 24 and February 21, 2018, because
(1) no signed waiver appears in the certified record nor on the certified docket,
even after this Court explicitly ordered the Commonwealth and/or the trial
court to produce said written waiver; (2) the note on the “Call of the Trial
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Order” for January 24, 2018, that the action was relisted for a hearing on
motions could refer to the outstanding suppression claims – it is ambiguous
as to whether the waiver related to Appellant’s challenges to the incomplete
discovery; and (3) Appellant represented in his memorandum in support of
his Rule 600 Motion that no waiver was signed that day, a claim that the
Commonwealth, by failing to file a response to Appellant’s memorandum, did
not contest. [Appellant]’s Memorandum in Support of Motion to Dismiss
Criminal Charges Pursuant to PA Rule of Criminal Procedure 600, 10/24/2018,
at 4-5 § G; Order, 12/24/2020, at 2; Letter from Marissa A. Booth, Assistant
District Attorney, to Benjamin Kohler, Esquire, Deputy Prothonotary
(January 5, 2021). In other words, there is no factual support in the record
for the trial court’s conclusion that these 28 days are excludable time. See
Findings of Fact and Conclusions of Law, 10/25/2018, at 5.
Adding that sum of 194 days to the 180 undisputed includable days12
between the filing of the complaint and the suppression hearing brings the
Rule 600 calculation to 374 days – nine days in excess of the 365-day period
provided by Rule 600. Accordingly, we are constrained to vacate Appellant’s
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12 493 days – 313 days = 180 days. See Rule 600 Motion, 10/11/2018, at
¶ 8 (“the case has been pending for 493 days”); Findings of Fact and
Conclusions of Law, 10/25/2018, at 5 (“th[e trial c]ourt finds that there is a
total of 313 days of excludable and/or excusable time”).
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judgment of sentence and to discharge him.13 See Barbour, 189 A.3d at 947
(“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”).
In doing so, we share in the sentiment expressed by our colleagues in
Felix Ramos, No. 3634 EDA 2018:
We are cognizant of the dual purposes underpinning Rule 600—
i.e., the protection of society, as well as of an accused’s speedy
trial rights. We do not take lightly the nullification of a duly
entered jury verdict. However, where the Commonwealth’s
sustained lack of due diligence over the pendency of a relatively
uncomplicated prosecution deprives a defendant of his right to a
speedy trial under our rules of court, we are left with no choice
but to vindicate that right, unfortunately at the expense of
society’s right to effective prosecution of criminal cases. The
Commonwealth can and must do better.
Id. at 14-15 n.5; see also Peterson, 19 A.3d at 1135 (discussing dual
purpose behind Rule 600).
Judgment of sentence vacated. Appellant discharged. Jurisdiction
relinquished.
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13As we vacate Appellant’s judgment of sentence on his first claim, we need
not address his remaining issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2021
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