Com. v. Krebs, J. ( 2021 )

J-S05035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSHUA KREBS : No. 1578 EDA 2020
Appeal from the Order Entered August 3, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000283-2018
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 16, 2021
The Commonwealth appeals from the order dismissing with prejudice
the charges filed against Joshua Krebs, pursuant to Pa.R.Crim.P. 600. The
Commonwealth argues that the trial court should not have counted against it
the delay that occurred when it filed an untimely interlocutory appeal. We
affirm.
The Commonwealth filed a Complaint on December 18, 2017, charging
Krebs with violations of the Wiretap Act. See 18 Pa.C.S.A. §§ 5703-5728.
Krebs waived a preliminary hearing and, following formal arraignment, the
court scheduled a pretrial conference for May 2, 2018. Krebs moved on April
10, 2018, to extend the period for filing omnibus pretrial motions. The court
granted the motion and extended the deadline to May 2, 2018. That same
day, the court extended the pretrial motion deadline and rescheduled the
J-S05035-21
pretrial conference for August 29, 2018, noting that Krebs expressly waived
the application of Rule 600 for the applicable delay.1
On August 29, 2018, at Krebs’ request, the court rescheduled the
pretrial conference to September 19, 2018. However, on the day for the
pretrial conference, the court again continued it, this time to November 21,
2018.
On October 17, 2019, Krebs sought an extension of the time for filing
omnibus pretrial motions as well as a continuance of the pretrial conference,
as he needed additional time to review discovery. The Commonwealth
concurred in the request. The court ordered that Krebs file the omnibus
pretrial motion by November 21, 2018 and rescheduled the pretrial conference
for December 12, 2018.
Krebs filed an omnibus pretrial motion on November 21, 2018. The court
canceled the pretrial conference and scheduled a hearing on the motion for
January 24, 2019. The Commonwealth filed a motion to reschedule, as its
witness was attached to a trial that week. The hearing on the motion was
rescheduled to February 28, 2019.
After the hearing on Krebs’ pretrial motion, the court gave Krebs 45
days after completion of the transcript to file a brief and gave the
Commonwealth 15 days thereafter to respond. Krebs filed his brief on time.
____________________________________________
1 In August 2018, the Commonwealth submitted a notice of joinder to join
case 1717 CR 2018, with this case. The court did not dismiss that case under
Rule 600, and it is not part of this appeal.
-2-
J-S05035-21
The Commonwealth filed a motion for extension of time to file its brief, which
the court granted, extending the deadline to May 10, 2019. The
Commonwealth filed its brief on May 11, 2019.
The Court issued an opinion and order on July 17, 2019, granting in part
and denying in part the omnibus pretrial motions. Thirty-three days later, on
August 19, 2019, the Commonwealth filed an untimely appeal. This Court
issued a Rule to Show Cause why the appeal should not be dismissed as
untimely. The Commonwealth did not respond, and we quashed the appeal on
November 21, 2019. Commonwealth v. Krebs., No. 2523 EDA 2019. The
Commonwealth filed a petition for reconsideration, on November 25, 2019,
which we denied on December 4, 2019. We remanded the record on January
10, 2020, and the trial court scheduled a March 4, 2020 pretrial conference.
On February 6, 2020, Krebs filed a motion to dismiss pursuant to Rule
600. The court initially denied the motion, but Krebs filed a motion to
reconsider. Krebs argued that the court had erred in excusing the time from
the filing of the Complaint to the date of arraignment, and from the date of
arraignment to the originally schedule pretrial conference, as the time was
due to normal progression of the case. Motion to Reconsider, at 3-4 (citing
Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017)). The court granted
reconsideration and dismissed the charges with prejudice.2 The
Commonwealth filed this appeal.
____________________________________________
2 The court later granted Krebs’ unopposed motion to sever this case from the
case at docket 1717 CR 2018.
-3-
J-S05035-21
The Commonwealth raises the following:
Did the Trial Court abuse its discretion by dismissing the
above-captioned matter pursuant to Pa.R.Crim.P. 600 when
there was evidence of record of due diligence on the part of
the Commonwealth and sufficient excludable time to extend
the expiration of the same?
Commonwealth’s Br. at x.
The Commonwealth argues there were 484 excludable days, making the
adjusted run date April 15, 2020, i.e., after Krebs filed his Rule 600 motion.
Commonwealth’s Br. at 10-11. It claims there were “multiple periods of
excludable time including continuances consented to by [Krebs], unavailability
of witnesses, and efforts to file[] and perfect an interlocutory appeal.” Id. at
xvi. The Commonwealth concedes that the “timely filing of a Notice of Appeal
is a critical step in perfecting the appeal,” but asserts that “the failure to do
the same does not automatically terminate the proceeding.” Id. at 6. It cites
in support Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), and
Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super. 2007). It also
contends that “the mere existence of human error does not negate due
diligence.” Commonwealth’s Br. at 7 (quoting Commonwealth v. Bradford,
46 A.3d 693, 698 (Pa. 2012)).
It also attempts to distinguish Commonwealth v. Malinowski, 671
A.2d 674, 678 (Pa. 1996). The Commonwealth argues that here, unlike in
Malinowski, it included a certification pursuant to Pa.R.A.P. 311(d) and it did
not voluntarily withdraw the appeal. Rather, it maintains it “diligently
attempted to litigate the matter and pursue the appeal by filing for
-4-
J-S05035-21
reconsideration.” Commonwealth’s Br. at 7. It states it did not engage in
“misconduct or attempts to circumvent Rule 600,” and claims it did not
respond to this Court’s Rule to Show Cause because “the same was
erroneously not known to the Commonwealth and the Commonwealth
believed the appeal was proceeding through its normal course having received
the October 15, 2019, Briefing Schedule.” Id. at 8, 9. It claims that when it
received the order quashing the appeal, it “promptly” requested
reconsideration “due to counsel having been in preparation for a homicide
trial.” Id. at 9. Then, soon after the record was returned, the “Commonwealth
petitioned the [t]rial [c]ourt to schedule a [s]tatus [c]onference.” Id.
We review an order granting or denying a Rule 600 motion for an abuse
of discretion. See Commonwealth v. Roles, 116 A.3d 122, 125 (Pa.Super.
2015). In determining if there was such an abuse, we view the facts in the
light most favorable to the prevailing party. Id. Our scope of review is limited
to the trial court's findings and the evidence of record from the Rule 600
proceeding, which we view in the light most favorable to the prevailing party.
Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa.Super. 2018).
Rule 600 provides that trial “shall commence within 365 days from the
date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). If trial does
not begin before that deadline, taking into account periods of delay in which
the Commonwealth exercised due diligence in bringing the defendant to trial,
as well as delay the defendant caused, the defendant may move to dismiss
the charges. Pa.R.Crim.P. 600(D)(1).
-5-
J-S05035-21
Deciding a Rule 600 motion entails the following analysis. First, the court
must determine the “mechanical run date” – that is, 365 days from the date
of the filing of the complaint. Bethea, 185 A.3d at 371. Second, the court
must determine whether any periods of delay are “excludable.” Id. Excludable
time for this purpose includes several possible periods of time: (1) the time
between the filing of the written complaint and the defendant’s arrest, if the
defendant could not be apprehended because the defendant’s whereabouts
were unknown and could not be determined by due diligence; (2) any time for
which the defendant expressly waives Rule 600; (3) delay resulting from the
unavailability of the defendant or the defendant’s attorney, and (4) any
continuance at the request of the defendant or the defendant’s attorney.
Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004). We “add
the amount of excludable time, if any, to the mechanical run date to arrive at
an adjusted run date.” Bethea, 185 A.3d at 371 (quoting Commonwealth
v. Wendel, 165 A.3d 952, 956 (Pa.Super. 2017)) ( emphasis omitted).
If the trial did not occur before the adjusted run date, we then must
determine whether the additional delay was excusable. Excusable delay for
purposes of Rule 600 is any delay that was outside the control of the
Commonwealth and not the result of the Commonwealth’s lack of diligence.
Hunt, 858 A.2d at 1241. If the Commonwealth does not bring the defendant
to trial within the time required under Rule 600(A)(2)(a), the trial court must
dismiss the charges. Bethea, 185 A.3d at 371.
-6-
J-S05035-21
The Commonwealth must demonstrate by a preponderance of the
evidence that it exercised due diligence. Bradford, 46 A.3d at 701. Due
diligence “is fact-specific, to be determined case-by-case; it does not require
perfect vigilance and punctilious care, but merely a showing the
Commonwealth has put forth a reasonable effort.” Id. at 701-02 (quoting
Commonwealth v. Selenski, 994 A.2d 1083,1089 (Pa. 2010)). If the court
determines the Commonwealth did not act with due diligence, the court must
dismiss the charges and discharge the defendant. Id. at 702.
Certainly, the “Commonwealth’s good-faith interlocutory appeal
constitute[s] excusable delay under Rule 600, even if the Commonwealth was
unsuccessful on the merits of its claim.” Commonwealth v. Risoldi, 238
A.3d 434, 452 (Pa.Super. 2020). Nonetheless, the Commonwealth’s duties
under Rule 600 extend throughout all stages of a case, Commonwealth v.
Hawk, 597 A.2d 1141, 1145 (Pa. 1991), and require it to act with reasonable
diligence pursuing an interlocutory appeal by right. See Commonwealth v.
Matis, 710 A.2d 12 (Pa. 1998). Thus, if the Commonwealth unreasonably fails
to take proper steps to invoke this Court’s jurisdiction in such an appeal, the
delay incurred counts against the Commonwealth. See Malinowski, 671 A.2d
at 678.
Unless otherwise provided by law, a notice of appeal must be filed within
30 days after the entry of the order from which the appeal is taken, or the
appellate court lacks jurisdiction. Pa.R.A.P. 903(a); Commonwealth v.
Gaines, 127 A.3d 15, 17 (Pa.Super. 2015) (en banc). When calculating the
-7-
J-S05035-21
deadline, the time “shall be so computed as to exclude the first and include
the last day of such period.” 1 Pa.C.S.A. § 1908; Pa.R.Crim.P. 101(C) (“To the
extent practicable, these rules shall be construed in consonance with the rules
of statutory construction”).
The dispute in this appeal centers on the Commonwealth’s contention
that the trial court erred in concluding that it did not exercise due diligence
when it filed the untimely appeal.3, 4 The Commonwealth agrees that, if the
delay the late appeal caused was excusable, the adjusted run date had not
run at the time of the Rule 600 motion, but if it was not excusable, the
adjusted run date had expired. See Commonwealth Br. at 10-11 (claiming
there were 484 excludable days, with an April 2020 adjusted run date,
including the more than 100 days the case was on appeal).
Here, the trial court found the Commonwealth did not act with
reasonable diligence during the appeal:
First, the circumstances that led to the untimely appeal were
not outside the Commonwealth’s control, as excuse of time
requires. The Commonwealth acted on its own discretion
____________________________________________
3 The trial court calculated the delay from the appeal as 147 days. The
Commonwealth in effect concedes that the time from the rule to show cause
to the motion to reconsider is not excusable. See Commonwealth’s Br. at 11
(arguing 101 days of the appeal time – from the filing of the appeal to the
filing of the order to show cause, from the motion to reconsider to the denial
of the motion, and from the denial until the return of the record – is
excusable).
4 The Commonwealth’s calculations differed from the trial court by one day.
The Commonwealth appears to have included the first day, which, pursuant
to the rules of construction, is not correct. See 1 Pa.C.S.A. § 1908;
Pa.R.Crim.P. 101(C); Rule 600, comments.
-8-
J-S05035-21
when it appealed our Order. The Commonwealth could have
observed the time remaining to file an appeal when it chose
to do so. This alone prevents the delay from being excused.
See [Commonwealth v.] Hunt, 858 A.2d [1234,] 1241
[Pa.Super. 2004] (excusable time requires diligence under
circumstances beyond Commonwealth's control); Pa. R.
Crim. P. 600(C)(1).
As to the separate diligence condition required to excuse
time, no case has dealt with facts like those now presented.
But under Rule 600 in general, prosecutors have a duty to
keep themselves informed of the time remaining before trial
must commence. See, e.g., Commonwealth v. Sloan, 67
A.3d 1249 (Pa. Super. 2013) (district attorneys have non-
delegable duty to monitor the timely progression of the
case); Commonwealth v. Payton, 673 A.2d 631 (Pa.
Super. 1996) (diligence requires informing oneself that a
deadline is approaching and taking appropriate actions).
Unnecessarily allowing a trial to be scheduled after the run
date has been deemed a breach of diligence. See
Commonwealth v. Johnson, 852 A.2d 315 (Pa. Super.
2004); Commonwealth v. Lewis, 804 A.2d 672 (Pa.
Super. 2002). The same due diligence that requires
monitoring of the time remaining for trial should also require
the monitoring of the time to file an appeal.
In one case, the Commonwealth failed to diligently
prosecute when it filed an appeal the Superior Court did not
have jurisdiction to hear. Commonwealth v. Malinowski,
671 A.2d 674 (Pa. 1996) (Commonwealth purported to
appeal interlocutory order granting suppression motion
without certifying that it would substantially impair the
prosecution). Not taking that step deprived the higher court
of jurisdiction, and an untimely Notice of Appeal does the
same, requiring automatic dismissal. Commonwealth v.
Patterson, 940 A.2d 493 (Pa. Super. 2007) (untimely
Notice of Appeal requires dismissal absent extraordinary
circumstances not applicable here). In either situation, we
have an appeal the reviewing court cannot decide on the
merits. Where the appeal cannot be decided and merely
awaits a dismissal, the appellant has not used the time to
bring the case closer to trial. This goes against diligence.
See Commonwealth v. Dixon, 140 A.3d 718 (Pa. Super.
2016) ("Commonwealth must do everything reasonable
within its power to guarantee that a trial begins on time").
-9-
J-S05035-21
Filing the untimely appeal in this case was not a
circumstance beyond the Commonwealth’s control and is
similar to unnecessarily allowing trial to be scheduled
beyond the Rule 600 period. Similarly, the Commonwealth
cannot diligently pursue an appeal the reviewing court does
not have the jurisdiction to hear, as this will not advance the
case toward trial. This means the Commonwealth has failed
to prove that it exercised due diligence during this part of
the case, and we cannot excuse the time.
Trial Court Opinion, filed July 2, 2020, at 10-12 (footnote omitted).
The court did not abuse its discretion. A Rule 311 certification is not the
sole requirement for this Court to have jurisdiction over the Commonwealth’s
interlocutory appeal. Rather, the Commonwealth must also file a timely notice
of appeal. Here, the Commonwealth’s appeal of the order addressing the
pretrial motion was untimely, and it has not asserted any excuse for missing
the deadline other than its failure to calculate the correct due date.
Further, after filing the untimely appeal, we issued a Rule to Show
Cause, allowing the Commonwealth a chance to convince us that the appeal
was timely. The Commonwealth failed to respond. The Commonwealth claims
that it was “unaware”5 that we had issued the Rule, but offers no explanation;
indeed, our Prothonotary sent the prosecutor handling the appeal notice by
email. That this Court also issued a briefing schedule, which did not purport
____________________________________________
5 Com. Br. at xiv.
- 10 -
J-S05035-21
to dispose of the Rule to Show Cause, did not relieve the Commonwealth of
its obligation to respond.6
The Commonwealth’s citations to Bass and Patterson are inapposite.
Bass was a case in which the Supreme Court found a non-negligent failure to
take a timely appeal was excusable. 401 A.2d at 1135. Here, the
Commonwealth has not proffered a non-negligent excuse for the untimely
appeal. In Patterson this Court concluded that the trial court’s failure when
it denied the defendant’s untimely post-sentence motion to advise defendant
of the time for filing an appeal constituted a “breakdown” in court operations
that excused untimely filing of the appeal. 940 A.2d at 499. The
Commonwealth has not identified any similar “breakdown” in this case. The
trial court did not abuse its discretion dismissing the charges pursuant to Rule
600.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2021
____________________________________________
6 Further, in its Motion for Reconsideration of our quashing of the appeal, the
Commonwealth argued that its appeal was, in fact, timely. It was not. Thirty
days from July 17, 2019 was Friday, August 16, 2019.
- 11 -