Com. v. Ungard, T. ( 2021 )

J-A16034-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS H. UNGARD JR. :
:
Appellant : No. 1394 MDA 2020
Appeal from the Judgment of Sentence Entered October 12, 2011
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001398-2007
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: OCTOBER 4, 2021
Appellant, Thomas H. Ungard, Jr., appeals from the judgment of
sentence entered in the Court of Common Pleas of Lycoming County on two
counts of Tampering with Public Records. Herein, Appellant contends the
court erroneously denied his motion to dismiss all charges for what he argues
was the Commonwealth’s impermissible failure to meet the prompt trial
requirements of Pennsylvania Rule of Criminal Procedure 600. After careful
review, we affirm.
The relevant facts and procedural history of this appeal are as follows.
Appellant served as coordinator for the Lycoming County Drug
Task Force (“Task Force”), which frequently obtained vehicles
through criminal and/or civil forfeiture. In July 2006, the District
Attorney learned that Appellant and the Williamsport police chief
went on a personal trip to Canada in a forfeited vehicle. When
confronted, Appellant paid restitution to the Task Force in an
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* Former Justice specially assigned to the Superior Court.
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amount equal to the fair market rental value of the vehicle. The
Lycoming County District Attorney removed Appellant as
coordinator of the Task Force and referred the case to the Attorney
General of Pennsylvania for possible prosecution.
The Attorney General's investigation revealed that, on two
occasions, Appellant engaged in simulated sales fn1 of two forfeited
vehicles. Appellant and Adrian Heffley (“Heffley”) completed MV-
4ST forms which made it appear as though the forfeited vehicles
were transferred initially to Heffley and, thereafter, to members
of Appellant's family.fn2 During the investigation, Appellant asked
or encouraged Heffley to lie to investigators by stating that he
bought the vehicles, performed maintenance thereon, and then
resold the vehicles to Appellant's family members listed on the
MV-4ST forms.
fn1 See Black's Law Dictionary, 1366 (8th Ed. 1990) (“A
sale in which no price or other consideration is paid or
intended to be paid, and in which there is no intent to
actually transfer ownership.”).
Appellant knew Heffley was a mechanic at a garage
fn2
where Appellant had repair work performed.
On September 25, 2007, the Commonwealth charged Appellant
via criminal information with five counts of tampering with public
records or information (“tampering”),fn3 four counts of theft by
failure to make required disposition of funds (“theft”),fn4
conspiracy to commit tampering,fn5 obstructing the administration
of law or other governmental function (“obstruction”),fn6 and
conflict of interest.fn7
The trial court dismissed four counts of tampering and one count
of theft for failure to make a prima facie showing that Appellant
committed those offenses. The trial court also denied the
Commonwealth leave to amend the criminal information and
suppressed certain evidence.
Later, the Commonwealth [filed an interlocutory appeal by right,
asserting the trial court’s order substantially impaired its ability to
prosecute]. This Court reversed the dismissal of the tampering
and theft charges, reversed the decision barring the
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Commonwealth from filing an amended criminal information,
affirmed the suppression ruling, and remanded for further
proceedings. See Commonwealth v. Ungard, 15 A.3d 540 (Pa.
Super. 2010) (unpublished memorandum).
fn3 18 Pa.C.S.A. § 4911(a)(1), (a)(3).
fn4 18 Pa.C.S.A. § 3927(a).
fn5 18 Pa.C.S.A. §§ 903, 4911.
fn6 18 Pa.C.S.A. § 5101.
fn7 18 Pa.C.S.A. § 1103(a).
On remand, Appellant waived his right to counsel and [elected to
represent] himself at trial. [On December 7, 2010, Appellant filed
a pretrial Motion to Dismiss pursuant to Pa.R.Crim.P. 600. The
trial court held a hearing on this motion on April 29, 2011, and it
denied the motion by Opinion and Order docketed on June 3,
2011].
On July 22, 2011, a jury convicted Appellant of two counts of
tampering and obstruction. Appellant requested the assistance of
counsel during post-trial proceedings, including direct appeal. The
trial court denied that request and, on October 12, 2011,
sentenced Appellant to an aggregate term of 18 months'
probation. This Court affirmed the judgment of sentence and our
Supreme Court denied allowance of appeal. Commonwealth v.
Ungard, 68 A.3d 367, 2013 WL 11279623 (Pa. Super. 2013)
(unpublished memorandum), appeal denied, 77 A.3d 1260 (Pa.
2013). Appellant did not begin serving his probationary term after
our Supreme Court denied allowance of appeal but the record does
not explain the reason for this delay.
On August 8, 2014, Appellant filed a pro se PCRA petition. The
PCRA court appointed counsel who filed an amended petition.
Thereafter, the PCRA court granted in part and denied in part
Appellant's PCRA petition. It reinstated Appellant's direct
appellate rights, together with his right to file a post-sentence
motion, nunc pro tunc. It denied relief on Appellant's remaining
claims. On February 9, 2017, Appellant filed a post-sentence
motion. On July 6, 2017, the trial court denied that motion.
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[Appellant filed a direct appeal, and this Court reversed judgment
of sentence as it pertained to Appellant’s conviction on the charge
of obstruction, which under the Crimes Code requires evidence of
obstructing in the prosecution of “another” rather than in one’s
own prosecution. In all other respects, the court affirmed
judgment of sentence and relinquished jurisdiction.
Commonwealth v. Ungard, No. 1209 MDA 2017, 2019 WL 1057350, at **1–
6 (Pa. Super. Ct. Mar. 6, 2019) (unpublished memorandum).
Appellant’s judgment of sentence became final on April 5, 2019, when
thirty days expired without his filing a petition for allowance of appeal with the
Pennsylvania Supreme Court pursuant to Pa.R.A.P. 1113(a). See 42 Pa.C.S.
§ 9545(b)(3). He timely filed his first PCRA petition on November 8, 2019,
and asserted that the trial court had denied him his right to counsel when it
precluded him from relitigating with the assistance of counsel any issues that
Appellant had previously litigated in his pro se post sentence motion. Among
those issues was a challenge to the trial court’s dismissal of his pro se Rule
600 motion.1 After conducting a hearing on the matter, the PCRA court
reinstated Appellant’s post-sentence motion rights and his direct appeal rights
nunc pro tunc.
On April 6, 2020, Appellant filed a post sentence motion nunc pro tunc
asserting the trial court had erred in entering its 2011 Order denying his Rule
600 motion to dismiss all charges. In both Appellant’s post sentence motion
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1 Unless indicated otherwise, our references to Pa.R.Crim.P. 600 relate to the
version of the law that was rescinded effective July 1, 2013.
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and his subsequent brief submitted after a hearing on the matter, he set forth
what he contended was a timeline relevant to the Rule 600 issue, as follows:
Complaint Filed: June 12, 2007
Mechanical 600 Run Date: June 12, 2008
[Appellant’s] Pretrial Motions Filed: Nov. 1, 2007
Hearing on [Appellant’s] Pretrial Motions: April 16, 2008
[Appellant’s] Pretrial Motions Decided: Oct. 16, 2008
CW[2] Notice of Interlocutory Appeal Filed: Oct. 27, 2008
Date Transcript of Hearing on [Appellant’s]
Pretrial Motions Available to CW: Nov. 1, 2008[]
Transcript Paid-For by CW: Jan. 26, 2009[]
Date Transcript Filed: Feb. 2, 2009
Date Court filed Pa.R.A.P. 1925(a) Opinion: April 7, 2009
Date Prothonotary Transmitted Record to
Appellate Court: Oct. 2, 2009
CW First Request for Extension to File Brief: Nov. 6, 2009
CW Second Request for Extension to File Brief: Nov. 25, 2009
CW Request to Continue Oral Argument: April 6, 2010
CW Second Request to Continue
Oral Argument: May 10, 2010
CW Interlocutory Appeal Decided: Oct. 25, 2010
[Appellant’s] Pa.R.Crim.P. 600 Motion Filed: Dec. 7, 2010
____________________________________________
2 “CW” refers to the Commonwealth.
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[Appellant’s] Pa.R.Crim.P. 600 Hearing: April 29, 2011
[Appellant’s] Pa.R.Crim.P. 600 Decision: July 18, 2011
Post Sentence Motion nunc pro tunc, 4/6/2020, at 2-3; Post-Hearing Brief at
7.
Appellant argued that the trial court had improperly denied his Rule 600
motion on the erroneous belief that the Commonwealth was relieved of its
obligation to exercise due diligence in bringing its case to trial during the two-
year period the Commonwealth pursued an interlocutory appeal. “Excusable
delay,” Appellant maintained, “is delay that occurs as a result of circumstances
beyond the Commonwealth’s control and despite its due diligence.” Post
Sentence Motion, at 5 (citing Commonwealth v. Goldman, 70 A.3d. 874,
880 (Pa.Super. 2013)) (emphasis added in motion). Therefore, Appellant
asserted that “whether or not a period of delay in bringing [Appellant] to trial
constitutes “excusable delay” . . . requires an analysis of the Commonwealth’s
due diligence. Id.
According to Appellant’s 2020 post-sentence motion, the transcript of
the April 29, 2011, hearing on his Rule 600 motion showed that the
Commonwealth presented only certified copies of the items listed on the
docket sheet associated with the Commonwealth’s interlocutory appeal. The
unsworn representations of the Deputy Attorney General (“DAG”) at the Rule
600 hearing regarding such items did not constitute testimony and were not
evidence, Appellant posited in his motion, and he insisted the lack of live
witnesses or sworn affidavits of such witnesses, transcripts, or file notes
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should have been deemed fatal to the Commonwealth’s requisite
demonstration of due diligence.
Appellant’s motion also maintained that at the Rule 600 hearing, the
Commonwealth not only failed to show it acted with due diligence during all
phases of the litigation—including its interlocutory appeal—but also expressed
the mistaken belief, through the opinion offered by the DAG, that due diligence
became irrelevant once the interlocutory appeal had been filed with this Court.
N.T. 4/29/11 at 115. By the court’s apparent acceptance of this flawed
position, Appellant asserted, it committed reversible error on the Rule 600
issue.
At the July 22, 2020, hearing on Appellant’s post-sentence motion nunc
pro tunc, the Commonwealth acknowledged that it was required to exercise
due diligence during all pretrial phases of the case, but it argued that it met
these requirements notwithstanding the DAG’s statements at the 2011 Rule
600 hearing. N.T., 7/22/2020, at 27.
Appellant contested this position, arguing that both the
Commonwealth’s three-month delay in securing available transcripts
necessary to complete the appellate record and forwarding them to the
Lycoming County Clerk of Courts for transmission to the Superior Court, and
the Clerk of Court’s subsequent six-month delay in transmitting the record to
this Court without the Commonwealth ever seeking a status update on its
stalled interlocutory appeal, should be added to the Rule 600 computation of
time.
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Appellant also claimed that the Commonwealth’s multiple motions to
this Court during the interlocutory appeal seeking continuances of oral
argument and extensions of the briefing schedule caused further delay that
was neither beyond its control nor despite its due diligence, such that this time
also should be added to the Rule 600 computation. In response, the
Commonwealth maintained that the orders granting continuances over the
objections of Appellant reflected this Court’s determination that the requests
therein were necessary despite diligent efforts to comply with the original
appeals schedule.
By the lower court’s Order and Opinion of October 22, 2020, it rejected
Appellant’s post-sentence motion nunc pro tunc. Specifically, the court
determined that the time taken by the trial court to decide Appellant’s pretrial
motion and by the Superior Court to dispose of the Commonwealth’s
interlocutory appeal, was neither within the control of the Commonwealth nor
extended by the Commonwealth’s lack of due diligence to such a degree as to
bring the Rule 600 computation above 365 days prior to trial.
The court offered the following opinion in support of its calculations:
There were two major events that occurred in this case prior to
Appellant filing his motion to dismiss: the litigation of Appellant’s
omnibus pretrial motion and the Commonwealth’s appeal of the
rulings on Appellant’s omnibus pretrial motion. Appellant
contends that none of the time associated with these events
constitutes excludable or excusable time. The court cannot agree.
A. [Appellant’s] Omnibus Pretrial Motion
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On September 18, 2007, the Lycoming County judges recused
themselves from handling this case. Appellant filed an omnibus
pre-trial motion on November [1], 2007. The Administrative
Office of Pennsylvania Courts (AOPC) assigned Senior Judge
John Reilly to preside over this case. On February 22, 2008,
Judge Reilly held a status conference and issued an order
scheduling the evidentiary hearing on Appellant’s omnibus
pretrial motion for April 16, 2008. The order indicated that
Judge Reilly would set a briefing schedule at the conclusion of
the hearing. Commonwealth’s Exhibit PT-2 (Order dated
2/22/08 and filed 2/29/08).
The hearing and argument on Appellant’s motion was held on
April 16, 2008, as scheduled. At the hearing, the
Commonwealth introduced seven exhibits, marked
Commonwealth’s Exhibit PT-1 through PT-7. Appellant
introduced testimony from Agent Anthony Fiore and the
Lycoming County Prothonotary and Clerk of Courts, William
Burd. Appellant also introduced numerous exhibits, marked .
. . 1 through 14. After the hearing, Judge Reilly entered an
order setting a briefing schedule. Defense counsel’s brief was
due 90 days from the receipt of the transcript and the
Commonwealth’s reply brief was due 10 days thereafter. See
Commonwealth’s Exhibit PT-3 (Order dated 4/16/08 and filed
on 4/30/08).
On July 11, 2008, Judge Reilly entered an order scheduling jury
selection for November 3, 2008 with trial to commence
immediately thereafter. Commonwealth’s Exhibit PT-4 (Order
dated 7/11/08 and 7/14/08).
Appellant filed his brief on August 4, 2008, and the
Commonwealth filed its reply brief on August 7, 2008.
On August 25, 2008, the Lycoming County Court Administrator
scheduled this case for a pretrial conference on October 16,
2008. Commonwealth’s Exhibit PT-5. Judge Reilly announced
his decision on Appellant’s motion on the record on October 16,
2008.
Between the filing of the complaint and the filing of
Appellant’s omnibus pre-trial motion, 142 days elapsed.
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The court finds that the 350 days between the filing of
Appellant’s pre-trial motion on November 1, 2007 and
October 16, 2008, the date Judge Reilly rendered his
decision thereon, is excludable time.
The evidence presented and the reasonable inferences
deducible from the evidence show that Judge Reilly did not
schedule this case for trial on or before June 11, 2008, due to
Appellant’s omnibus pretrial motion. If it were not for
Appellant’s motion, Judge Reilly could have entered an order
at or after the status conference in February 2008 scheduling
this case for trial. Although Judge Reilly entered an order in
July, which scheduled jury selection and trial for November 3,
2008, that trial date was after the time allotted to the parties
for filing their briefs and a reasonable period of time for Judge
Reilly to issue his decision.
Appellant’s omnibus pre-trial motion included a request that
several of the charges be dismissed, which Judge Reilly
granted. Clearly, Appellant did not wish to proceed to trial on
these charges since he believed the Commonwealth did not
present sufficient evidence to establish a prima facie case. Any
assertion that this case could have proceeded to trial prior to a
ruling on Appellants motion is disingenuous. This is not a case
where Judge Reilly deferred hearing the pretrial motions until
the time of trial. Furthermore, the trial did not commence on
November 3, 2008, because the Commonwealth filed an appeal
from Judge Reilly’s rulings on Appellant’s omnibus pretrial
motion. Therefore, the filing of the pre-trial motion caused a
delay in the commencement of trial.
The transcripts, orders and other documents filed of record also
show that the Commonwealth exercised due diligence in
opposing or responding to the motion. Neither party
requested any continuances of the pretrial motion. Both
parties appeared on April 16, 2008, and Judge Reilly heard the
pre-trial motions. The Order entered on April 16, 2008
required the Commonwealth to file its reply brief ten days after
Appellant filed his brief. The Commonwealth, however, filed its
brief within three days. When the parties appeared before
Judge Reilly in October 2008, he made his rulings on
Appellant’s omnibus pre-trial motion. Since the filing of
Appellant’s omnibus pre-trial motion delayed
commencement of trial and the Commonwealth
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exercised due diligence in opposing or responding to the
motion, this time is excludable under Rule 600(C).
Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999).
Another 11 days elapsed between Judge Reilly’s ruling
[on Appellant’s pretrial motion] and the
Commonwealth’s appeal. Therefore, a total of 153 days
passed for Rule 600 purposes prior to the
Commonwealth filing its [interlocutory] appeal. Since
this total is less than 365 days, Appellant was not entitled to
dismissal prior to the Commonwealth’s appeal.
B. The Commonwealth’s Appeal
Appellant asserts that the Commonwealth failed to satisfy its
burden of proof to establish that it acted with due diligence
throughout his case, including the Commonwealth’s appeal.
Additionally, Appellant appears to contend that the court can
review the appellate proceedings and find that the
Commonwealth did not exercise due diligence, particularly
where the Commonwealth requested extensions of the briefing
schedule and continuances of the argument, despite the fact
that the Pennsylvania Superior Court granted these requests.
There is case law that the Commonwealth must exercise due
diligence throughout the proceedings. To date, however, the
due diligence inquiries with respect to an appeal by the
Commonwealth seem to have focused on whether the
Commonwealth has properly certified that the order appealed
will terminate or substantially handicap the prosecution or
whether the Commonwealth took the appeal in bad faith.
[citing decisions, including] Commonwealth v. Risoldi, [238
A.3d 434 (Pa.Super. 2020) (Commonwealth need not be
successful in interlocutory appeal to establish due diligence;
there was no indication in the record that the Commonwealth
took the appeal in bad faith or as a means to delay trial). The
[trial] court has not found any cases where there was an
evaluation of every aspect of the appellate process, including
but not limited to the Commonwealth’s requests for extensions
or continuances, or the appellate court’s decisions thereon.
[The trial court notes the Commonwealth certified that Judge
Reilly’s order terminated or substantially handicapped the
prosecution, the interlocutory appeal was the only opportunity
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the Commonwealth had to challenge Judge Reilly’s order
granting habeas relief and other pretrial rulings, and the
Commonwealth generally prevailed on its issues, as the
Superior Court reversed the trial court’s habeas ruling as well
as some of the pretrial evidentiary rulings.]
The Commonwealth’s timely appeal divested the [trial court of
jurisdiction pursuant to Pa.R.A.P. 1701(a) and automatically
tolled the running of Rule 600 until the time of decision and
remand back to the trial court. This time is thus excusable
delay.] Commonwealth v. DeBlase, 665 A.2d 427, 431-32
(Pa. 1995) .
...
Appellant argues that the Commonwealth had an obligation of
due diligence throughout the pendency of the appeal in this
case and, since the Commonwealth was not diligent, the time
attributable to the Commonwealth’s interlocutory appeal is not
excusable.
Appellant seeks to hold the Commonwealth responsible
for delays in the preparation of the transcript of the
October 16, 2008 hearing, the clerk of court’s failure to
send the record to the appellate court in a timely
manner, and various extensions of the briefing schedule
and continuances of oral argument in the appellate
court.
...
Even assuming that [the trial court] has the authority to
review the entire appellate process, including the Superior
Court’s decisions to grant the Commonwealth’s requests for
briefing extensions and continuances of the argument, the
court rejects Appellant’s claim that he is entitled to dismissal.
...
On October 27, 2008, the Commonwealth filed its notice of
appeal . . . [and] also requested a transcript of the proceedings
held on October 16, 2008.
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The court reporter completed the transcript on or about
November 19, 2008, and sent the prosecutor an invoice for
payment. When no payment was received, she again
contacted the prosecutor. The court reporter received payment
from the prosecutor on or about January 26, 2009. The court
reporter filed the transcript on February 2, 2009. Defendant’s
Exhibit 3.
The time from October 27, 2008 to November 19, 2008
(23 days) was not due to a lack of due diligence by the
Commonwealth; it was due to the court reporter
preparing the transcript. This delay occurred despite the
Commonwealth’s due diligence in filing its appeal and
requesting the transcript and was beyond the Commonwealth’s
control. Therefore it is excusable delay.
The delay from November [20], 2008 to January 26,
2009 (68 days) was due to the Commonwealth’s failure
to pay for the transcript. As this delay was attributable
to the Commonwealth’s lack of due diligence, it is
includable time.
The time from January 2[7], 2009, to February 2, 2009
(7 days) was attributable to the court reporter’s failure
to file the transcript upon receipt of payment from the
Commonwealth. This is excusable delay.
Judge Reilly filed his opinion on April 7, 2009. The
Commonwealth had no control over when Judge Reilly
filed his opinion. This time between February 2, 2009
and April 7, 2009 (64 days) is excusable delay.
Although the transcript and Judge Reilly’s opinion were
filed [with the clerk of courts] by April 7, 2009, the clerk
of courts did not send the record to the Superior Court
until October 2, 2009.
Despite the fact it was the Commonwealth’s burden of proof to
establish by a preponderance of the evidence that it acted with
due diligence, Appellant presented testimony and exhibits at
the Rule 600 hearing. In his zealous efforts to prove that the
Commonwealth did not exercise due diligence, Appellant
inadvertently introduced evidence helpful to the
Commonwealth, including the testimony of [Clerk of Courts]
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William Burd and numerous exhibits that showed the reasons
for the delays during the appeal.
Appellant called William Burd, the Lycoming County
Clerk of Courts as a witness at the Rule 600 hearing. Mr.
Burd testified that he would not send the record to the
appellate court until someone from the court directed him to
do so [(emphasis in original)]. N.T., 4/29/2011, at 97-98, 101-
102. The delay from April 7, 2009 to October 2, 2009
(172 days) is excusable delay that occurred due to a
breakdown in the court’s operations.
Defendant argued that if the Commonwealth had been tracking
the appeal and contacted Mr. Burd, he would have sent the
record sooner. This argument is belied by Mr. Burd’s
testimony. Furthermore, it is not the Commonwealth’s
obligation to ensure that the record is sent to the appellant
[sic] court; it is the court’s duty. Pa.R.A.P. 1931(b). The
Commonwealth is permitted to rely on the court’s compliance
with the Rules. Commonwealth v. Bradford, [ ] 46 A.3d 693(Pa. 2012).
After the record was sent to the appellate court, the
Commonwealth filed two requests for extensions of the
briefing schedule. The Commonwealth’s brief was
originally due on November 16, 2009. See Defendant’s
Exhibit 6 (Commonwealth’s First Application for Extension),
para. 3. On November 6, 2009 the Commonwealth requested
an extension to file its brief, which the Superior Court granted.
Defendant’s Exhibit 5 (Appellate Court Docket Sheet). The
prosecutor’s heavy workload was the reason for the request for
extension. Specifically, the prosecutor needed to file other
briefs that were due in the Pennsylvania Supreme Court; file a
brief in a capital case that was due in the Pennsylvania
Supreme Court; file an answer and brief that were due in a
federal habeas proceeding; prepare for and participate in an
evidentiary hearing in a capital PCRA case; and fulfill
responsibilities pursuant to the Investigating Grand Jury Act.
Defendant’s Exhibit 6, paras. 4 and 5. This first request
extended the Commonwealth’s briefing deadline from
November 16, 2009 to December 16, 2009.
On November 25, 2009, the Commonwealth requested a
second extension of time to file its brief and the reproduced
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record. Defendant’s Exhibit 5. The Commonwealth requested
a second extension until January 16, 2010. Defendant’s Exhibit
7. The reasons for this request were that the prosecutor had
briefs due in several separate murder cases, including three
capital cases. Id. On November 30, 2009, the Pennsylvania
Superior Court granted an extension from December 16, 2009
to January 4, 2010 (19 days). Defendant’s Exhibit 5. The
Commonwealth filed the reproduced record on December 31,
2009, and it filed its brief on January 4, 2010[, 49 days beyond
the original filing date of November 16, 2009].
The [trial court] also does not believe the
Commonwealth’s requests for extensions of the briefing
schedule showed a lack of due diligence. Due diligence
does not require perfect vigilance or punctilious care, but
merely a showing that the Commonwealth has put forth a
reasonable effort. Commonwealth v. Selenski, [] 994 A.2d
1083, 1089 (Pa. 2010). If the Superior Court did not think
that the Commonwealth offered good reasons for its
requests, it would have denied them. . . . Furthermore,
even if the Commonwealth failed to exercise due diligence in
filing its brief, it only resulted in [49] days of delay.
Appellant filed his appellate brief on February 1, 2010,
and the Superior Court scheduled oral argument for April
7, 2010. . . . This delay was not due to a lack of due
diligence on the Commonwealth and was beyond its
control. Therefore, January 4, 2010 to April 7, 2010 (93
days) was excusable delay.
[On April 6, 2010, the Commonwealth requested a
continuance of oral argument due to illness of the
prosecutor. This Court granted the continuance and
rescheduled to June 8, 2010. The trial court concluded, “No
matter how diligent an individual may be, he has no
control over an inability to attend a hearing due to an
illness. The court finds the time from April 7, 2010 to
June 8, 2001 (62 days) is excusable delay.
On May 10, 2010, the Commonwealth again requested a
continuance. Defendant’s Exhibit 5. The reason was that
several days earlier the Superior Court had scheduled
another case of the prosecutor’s for an argument in
Philadelphia on the same date and at the same time that
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the Superior Court scheduled this case for an argument
in Harrisburg. Defendant’s Exhibit 8. Obviously, the
prosecutor could not be in two different places at the same
time. The Superior Court granted the Commonwealth’s
continuance request and rescheduled the argument to August
24, 2010. The court finds that the time from June 8, 2010
to August 24, 2010 (77 days) is excusable delay.
The Superior Court rendered its decision on October 25, 2010,
and remitted the record on or about December 2, 2010. The
time from the oral argument on August 24, 2010 to the remittal
of the record on December 2, 2010 (100 days) was judicial
delay that occurred despite the Commonwealth’s diligence and
was beyond the Commonwealth’s control; therefore, it
constitutes excusable delay.
Lower Court Opinion, 10/22/20, at 2-5. This timely appeal followed.
In Appellant’s brief, he raises one issue for our review:
Whether the trial court abused its discretion when it denied
Appellant’s motion to dismiss pursuant to Pa.R.Crim.P. 600 and
subsequently denied Appellant’s post-sentence motion nunc pro
tunc seeking review of the trial court’s Rule 600 opinion where the
Commonwealth failed to produce any evidence that it acted
diligently to bring the instant matter to trial during the more than
four years the instant case was pending between the filing of the
complaint and commencement of trial?
Appellant’s brief at 8.
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).
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Pursuant to the version of Pa.R.Crim.P. 600 that was in effect during all
periods pertinent to this case, the Commonwealth had 365 days to bring
Appellant to trial. Specifically, Rule 600(A)(3) provided, “Trial in a court case
in which a written complaint is filed against the defendant, when the defendant
is at liberty on bail, shall commence no later than 365 days from the date on
which the complaint is filed.” See Rule 600 (effective July 1, 2000–June 30,
2013). Subsection (B) of Rule 600 provided “[f]or the purpose of this rule,
trial shall be deemed to commence on the date the trial judge calls the case
to trial, or the defendant tenders a plea of guilty or nolo contendere.”
Pa.R.Crim.P. 600(13).
Herein, however, we calculate the 365 days under Rule 600 by starting
on when the complaint was filed and ending when Appellant filed his motion
to dismiss. Commonwealth v. Hyland, 875 A.2d 1175, 1189 (Pa.Super.
2005).
Former Rule 600(C) identified certain periods of excludable time that
are not included in the calculation to determine whether the Commonwealth
violated the 365–day period. Those periods stem from, inter alia, a
defendant's express waiver of Rule 600, delays resulting from the defendant's
unavailability, or a request for a continuance. Commonwealth v.
Miskovitch, 64 A.3d 672, 677 (Pa.Super. 2013). In addition, our case law
recognizes the legal construct of excusable delay to “account [for] delays
which occur as a result of circumstances beyond the Commonwealth's control
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and despite its due diligence.” Commonwealth v. Peterson, 19 A.3d 1131,
1137 (Pa.Super. 2010) (en banc), aff'd, 44 A.3d 655 (Pa. 2012).
Notably, the current iteration of Rule 600, which became effective in
2013 after the relevant time in the case sub judice, instructs in its subsection
(C) that the 365-day computation of time shall include periods of delay caused
by the Commonwealth when the Commonwealth has failed to exercise due
diligence, whereas any other period of delay shall be excluded from the
computation:
(C) Computation of Time
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.
Rule 600(C).
The comment to the current Rule 600(C), however, makes clear that it
derives from controlling decisional law interpreting the requirements of the
prior iteration of Rule 600:
For purposes of determining the time within which trial must be
commenced pursuant to paragraph (A), paragraph (C)(1) makes
it clear that any delay in the commencement of trial that is not
attributable to the Commonwealth when the Commonwealth has
exercised due diligence must be excluded from the computation
of time. Thus, the inquiry for a judge in determining whether
there is a violation of the time periods in paragraph (A) is whether
the delay is caused solely by the Commonwealth when the
Commonwealth has failed to exercise due diligence. See, e.g.,
Commonwealth v. Dixon, 589 Pa. 28, 907 A.2d 468 (2006);
Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12 (1998). If
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the delay occurred as the result of circumstances beyond the
Commonwealth's control and despite its due diligence, the time is
excluded. See, e.g.[,] Commonwealth v. Browne, 526 Pa. 83,
584 A.2d 902 (1990); Commonwealth v. Genovese, 493 Pa.
65, 425 A.2d 367 (1981). In determining whether the
Commonwealth has exercised due diligence, the courts have
explained that “[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 Commonwealth has put forth a
reasonable effort.” See, e.g., [ ]Selenski, 606 Pa [at] 61, 994
A.2d [at] 1089 [ ] (citing Commonwealth v. Hill and
Commonwealth v. Cornell, 558 Pa. 238, 256, 736 A.2d 578,
588 (1999)).
Pa. R. Crim. P. 600, comment.
As such, the former and current Rule 600 are substantially similar for
our present purposes of discerning the Commonwealth’s exercise of due
diligence during the relevant time. See Commonwealth v. Harth, 252 A.3d
600, 617 (Pa. 2021) (“requiring the Commonwealth to demonstrate that it
acted with due diligence before a trial court excludes time from its Rule 600
time computation on the basis of “judicial delay” comports with the language
of Rule 600(C)(1) and its commentary, the purpose behind the rule, and our
prior jurisprudence interpreting Rule 600 and its predecessor.”) (emphasis
added); Commonwealth v. Wiggins, 248 A.3d 1285 (Pa.Super. 2021)
(observing general dictates of new Rule 600 remained the same as they were
prior to adoption, but noting prior distinctions between excludable time and
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excusable delay were abandoned for streamlined review of Commonwealth’s
due diligence, with any lack thereof constituting “includable time”).3
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
Selenski, 994 A.2d at 1089). This standard reflects the recognition that Rule
____________________________________________
3 The Pennsylvania Supreme Court has aptly set forth an overview of the
requirements and computational approach of current Rule 600, as follows:
Rule of Criminal Procedure 600 requires that “[t]rial in a court case
in which a written complaint is filed against the defendant shall
commence within 365 days from the date on which the complaint
is filed.” Pa.R.Crim.P. 600(A)(2)(a). Per the associated
computational guidance, periods of delay at any stage of the
proceedings caused by the Commonwealth when it has failed to
exercise due diligence are to be counted in the 365–day tally. See
id. 600(C)(1). The rule further directs that “[a]ny other periods
of delay shall be excluded from the computation.” Id. (emphasis
added). Failure to meet the rule's prompt-trial requirement
constitutes grounds for dismissal. See id. 600(D)(1).
Commonwealth v. Mills, 162 A.3d 323, 324 (Pa. 2017) (emphasis in
original). See also Pa.R.Crim.P. 600, cmt. (“[A]ny delay in the
commencement of the trial that is not attributable to the Commonwealth when
the Commonwealth has acted with due diligence must be excluded from the
computation of time.”) (emphasis added).
“[T]he Commonwealth is required to demonstrate that it acted with due
diligence during a time period before that period can be deemed excludable.”
Harth, 252 A.3d at 617. Therefore, “[j]udicial delay becomes relevant only
after the Commonwealth has proven its compliance with the due diligence
mandate.” Id. (quoting Mills, 162 A.3d at 327 (Wecht, J., concurring)); see
also Commonwealth v. Hawk, 597 A.2d 1141, 1145 (Pa. 1991)
(recognizing requirement that Commonwealth exercise due diligence at all
times during pendency of a case).
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600 has the dual purpose of protecting defendants’ constitutional right to a
speedy trial and society's countervailing right to effective prosecution of
criminal cases, Commonwealth v. Barbour, 647 Pa. 394, 189 A.3d 944, 955
(2018).” Harth, 252 A.3d at 617. Due diligence must be demonstrated by a
preponderance of the evidence. Commonwealth v. Bradford, 46 A.3d 693,
701 (Pa. 2012).
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).
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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.
A defendant who has not been brought to trial within the time
specified in Rule 600(A) may, at any time prior to trial, “file a
written motion requesting that the charges be dismissed with
prejudice on the ground that [the] rule has been violated.”
Pa.R.Crim.P. 600(D)(1). If the trial court determines that the
Commonwealth violated Rule 600, it shall dismiss the charges and
discharge the defendant. See [Commonwealth v.] Burno, 154
A.3d [764, 793. Pa. 2017)].
Harth, 252 A.3d at 615.
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.” Risoldi, 238 A.3d at 452.
Nonetheless, because the Commonwealth's duties under Rule 600 extend
throughout all stages of a case, Harth, 252 A.3d at 616; Hawk, 597 A.2d at
1145, it is required to act with reasonable diligence pursuing an interlocutory
appeal by right. See Matis, supra.Thus, for example, 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 Commonwealth v.
Malinowski, 671 A.2d at 678. Another example of where the Commonwealth
has not used time to bring a defendant’s case closer to trial is when an appeal
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cannot be decided and merely awaits a dismissal; such a record goes against
diligence. See Dixon, supra (“Commonwealth must do everything
reasonable within its power to guarantee that a trial begins on time”).
Appellant argues the Commonwealth failed to show at the post
sentence hearing nunc pro tunc that it had acted with due diligence to advance
its interlocutory appeal, but the record demonstrates that the preponderance
of evidence admitted at the hearing supported each of the trial court’s line-
by-line due diligence determinations.
On the issue of what effect the Commonwealth’s interlocutory appeal
should have on the Rule 600 computation in the case sub judice, the trial court
appropriately found guidance in Matis and its progeny. Recently, in Risoldi,
this Court provided a most salient discussion of Matis and the principles that
informed it:
Risoldi argues that 648 days of non-excusable delay occurred
when the Commonwealth motioned for the trial court's recusal and
appealed from the denial of that motion. Again, Risoldi argues
that the recusal motion and subsequent appeal were entirely
frivolous, such that the time attributed to those proceedings
cannot be excusable delay under Rule 600.
As acknowledged by Risoldi, the case most directly on point
addressing the effect of a Commonwealth appeal on a Rule 600
motion is [Matis].[] There, the Commonwealth sought a
continuance of a trial date, averring that it had been unable to
subpoena an essential witness for trial and would be unable to
prove the elements of its case without her. Id. at 14. The trial
court denied the motion and the Commonwealth filed a notice of
appeal on the day of trial, certifying that the trial court's denial
had substantially impaired the prosecution. Id. at 15. Ultimately,
this court quashed the appeal and denied the Commonwealth's
motion for reconsideration. Id. When the case was remanded to
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the trial court, the defendant filed a Rule 600 motion alleging that
the Commonwealth “failed to exercise due diligence in bringing
him to trial and filed a frivolous appeal in bad faith from a non-
appealable interlocutory order for the sole purpose of delaying the
trial.” Id.
The trial court granted the motion, finding that while the
Commonwealth had not acted in bad faith, it did not exercise due
diligence in bringing the defendant to trial. Id. The
Commonwealth appealed and this court reversed. Id. On further
review, our Supreme Court held that “[i]f the Commonwealth files
a pre-trial appeal in bad faith without the right to do so, it fails to
exercise due diligence pursuant to [Rule 600].” Id. at 17 (citation
omitted). However, the Court further recognized that “a pre-trial
appeal by the Commonwealth can serve as a proper basis to
extend the period for commencement of trial pursuant to [Rule
600],” such as when the Commonwealth certifies that a trial
court's suppression order has substantially handicapped the
prosecution. Id. at 17-18 (citing Jones v. Commonwealth, 495
Pa. 490, 434 A.2d 1197 (1981)). The court noted that such a
certification is sufficient to protect against the filing of frivolous
interlocutory appeals. Id. at 18.
Thus, notwithstanding the fact that this court had quashed the
Commonwealth's interlocutory appeal, the Supreme Court in
Matis held that the time period during which the interlocutory
appeal had been pending was excusable delay during which the
Commonwealth had exercised due diligence. Id. at 19. Moreover,
since the trial court had found that the Commonwealth did not act
in bad faith in filing the appeal, it was a valid interlocutory appeal.
Id. Because the Commonwealth exercised due diligence in
certifying the interlocutory appeal, the Supreme Court affirmed
this court's reversal of the order discharging the defendant. Id.;
compare [ ]Malinowski, 671 A.2d [at] 679-80 [ ](holding that
the Commonwealth failed to exercise due diligence in filing an
interlocutory appeal when it did not certify that the suppression
order substantially handicapped the prosecution, rendering the
order unappealable).
Matis is consistent with prior holdings of this court that the
Commonwealth's good-faith interlocutory appeal constituted
excusable delay under Rule 600, even if the Commonwealth was
unsuccessful on the merits of its claim. See, e.g.,
Commonwealth v. Ferri, 410 Pa.Super. 67, 599 A.2d 208, 210
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(1991) (holding that four-year delay for Commonwealth's appeal
of a denied motion for severance did not violate Rule 600);
Commonwealth v. Coleman, 341 Pa.Super. 160, 491 A.2d 200,
202 (1985) (holding that Commonwealth's interlocutory appeal
did not violate Rule 600 when the Commonwealth had a right to
appeal that would be moot after trial and there was no evidence
that the Commonwealth took the appeal as a delay tactic). Thus,
the Commonwealth need not be successful in its interlocutory
appeal to establish due diligence for the purposes of Rule 600.
The Commonwealth is entitled to a pre-trial appeal in some
circumstances in a criminal case. See Pa.R.A.P. 311(d)
(Interlocutory Appeals as of Right); Pa.R.A.P. 313 (Collateral
Orders).[] Given the length of the appellate process, this right
would be largely illusory if the Commonwealth could not exercise
it without certainty that it would succeed on the merits. This court
has previously recognized that the Commonwealth may appeal an
order denying its recusal motion pursuant to Pa.R.A.P. 313.
Commonwealth v. Stevenson, 829 A.2d 701, 704 (Pa. Super.
2003). In Stevenson, we emphasized that double jeopardy
protections preclude the Commonwealth from challenging the
denial of a recusal motion if it loses its case, while a defendant
who wishes to challenge the denial of a recusal motion retains the
right to post-sentencing appellate review. Id. An appeal pursuant
to Pa.R.A.P. 313 protects the Commonwealth's interest in a trial
free from bias, prejudice, unfairness or the appearance thereof.
Under all of these circumstances, the Commonwealth in this case
was entitled to appeal from the trial court's order denying its
motion to recuse, regardless of the fact that this court ultimately
affirmed the trial court's order. There is no indication in the record
that the Commonwealth took the appeal in bad faith or as a means
to delay trial. Matis, supra. Even though the Commonwealth
was unsuccessful on appeal, it had a legitimate interest in
ensuring the fairness and impartiality of the trial court and it was
entitled to protect that interest through appellate review. As such,
the Commonwealth exercised due diligence and the period during
which the motion to recuse and subsequent appeal were litigated
is excusable delay under Pa.R.Crim.P. 600(C)(1). As neither of
the periods of delay challenged by Risoldi result in a violation of
Rule 600, the trial court did not abuse its discretion in denying the
motion to dismiss.
Risoldi, 238 A.3d at 451–53.
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We find the rationale in Risoldi applies with full force to support the
trial court’s determination that the time dedicated to the Commonwealth’s
interlocutory appeal in the present matter qualified as excusable delay. Here,
the Commonwealth’s certification of its appeal was accepted by this Court, as
was its filing of the record, appellate brief, and its presentation of oral
argument, all of which contributed to a largely successful outcome of gaining
reinstatement of most charges that had been dismissed by order of the trial
court. Under the Matis rubric as discussed in Risoldi, therefore, we agree
the Commonwealth was duly diligent during the time of its interlocutory
appeal.
Though the trial court relied on Matis to conclude the Commonwealth’s
interlocutory appeal constituted excusable delay, it nevertheless elected to act
in an abundance of caution by engaging in a more granular due diligence
assessment of the Commonwealth’s post-notice of appeal actions that were
preconditions to gaining Superior Court review on the merits. Specifically,
these actions included the requisite tasks of assembling a complete record
with transcripts for transmission and presenting its issues through written
brief and oral argument. We find that, in so doing, the court’s more particular
due diligence review conforms to the Harth/Mills paradigm, outlined infra, of
applying excusable delay or excludable time only after determining that the
Commonwealth was duly diligent during the relevant pretrial period.
We, therefore, accept the scope of the court’s extended due diligence
review and adopt its explanation as to why the Rule 600 computation should
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add time for the three-month period in which the Commonwealth failed to
secure complete and available transcripts from the stenographer and forward
them to the Lycoming Clerk of Courts for inclusion in the certified record to be
sent to the Superior Court.
As such, it becomes clear that the outcome of Appellant’s Rule 600 claim
in its post-sentence motion nunc pro tunc turns on whether the six-month
delay associated with the Clerk of Court’s failure to transmit the certified
record to the Superior Court is included in or excluded from the computation,
as the remaining points of contention regarding delay associated with
receiving briefing extensions and continuances from this Court are neither
meritorious nor of sufficient magnitude to take the computation above 365
days. See infra.
After consideration of precedent, we find that Bradford compels the
decision that the Commonwealth satisfied due diligence standards of the era
when it delivered a complete and transmissible record to the clerk of courts
and thereafter relied on the court to discharge its duties under the
Pennsylvania Rules of Appellate Procedure to transmit the record to the
Superior Court within 60 days. See Pa.R.A.P. 1931. The six-month delay
occasioned by the clerk of courts’ inexplicable inaction therefore constituted a
period of judicial delay excludable from the Rule 600 calculations.
Bradford involved a Rule 600 motion to dismiss charges when the
Commonwealth failed to bring defendant to trial for more than one year after
defendant’s preliminary hearing. In fact, the Commonwealth had lost track of
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defendant’s case after the preliminary hearing because the court of common
pleas never received the file of defendant’s case from the magisterial district
judge (“MDJ”). The Commonwealth thus claimed that it had relied on the MDJ
to forward timely to the court of common pleas the relevant file pursuant to
Pennsylvania Rule of Criminal Procedure 547(B) (requiring the MDJ to prepare
and transmit the preliminary hearing transcript to the clerk of the proper court
within 5 days).
After a hearing, the trial court entered an order granting the defendant’s
motion to dismiss, and a divided panel of this Court affirmed, with the majority
finding the Commonwealth failed to act with due diligence which required it to
employ a record keeping system to track cases for Rule 600 purposes.
Bradford, at 632. The dissent opined the Rule 600 violation resulted not from
lack of due diligence but from judicial noncompliance with our rules of
procedure, which caused a breakdown in the operations of the court over
which the Commonwealth had no control. Id. at 639-49.
The Supreme Court granted review on the question of whether this
Court erred in ruling the trial court correctly determined the Commonwealth
had failed to act with due diligence in bringing the defendant to trial. In
reversing, the Court distinguished the case before it from prior decisions in
which Rule 600 violations were caused by the Commonwealth’s failure to carry
out the routine duties of its office through use of simple case tracking systems.
Bradford, 46 A.3d at 704-705.
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On this point, our Supreme Court observed, the duties in Bradford lay
with the MDJ who bore responsibility to follow “the specific, mandatory Rules
of Criminal Procedure, which placed upon the District Judge the obligation to
transmit timely papers to the common pleas court.” Id. at 704. We,
therefore, “[did] not find it unreasonable for the District Attorney to have
relied upon the Magisterial District Judge’s compliance with the Rules of
Criminal Procedure to trigger its internal tracking system,” which consisted of
receiving an electronic message from the Office of Court Records upon receipt
of the file from the MDJ.4 Id.
Having performed the work necessary to place the minor judiciary in the
position of carrying out its duty under not a “self-designed custom or practice”
but, instead, “the specific, mandatory Rules of Criminal Procedure, which
placed upon the District Judge the obligation to transmit timely papers to the
common pleas court[,]” the Commonwealth had put forth, in the Supreme
Court’s estimation, the reasonable effort necessary to a showing of due
diligence on its part. Id. at 704, 705.
“Even assuming the facts in a light most favorable to the Defendant as
the prevailing party,” the Court concluded, “the trial court abused its discretion
by misapplying the law when it concluded that reliance upon the Magisterial
____________________________________________
4 We take judicial notice of the virtually identical modes of notification at work
in Bradford (common pleas court sends electronic notice to Commonwealth
that it has received file) and in the case sub judice (appellate court
prothonotary immediately gives notice to all parties of the date on which
record was received and filed, and shall give notice to all parties of the date,
if any, for the filing of the brief of the appellant. See Pa.R.A.P. 1934).
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District Judge’s obligation to comply with the Rules of Criminal Procedure did
not constitute due diligence.” Id. at 705.
The Bradford decision was endorsed by both the Mills majority and
concurrence: “As the Majority notes, we recognized ‘judicial delay’ as a
concept, and ultimately determined that the delay in Bradford’s case was
attributable to the judiciary, not to the Commonwealth. Bradford, 46 A.3d
at 702-05. However, we did so only after finding the Commonwealth had
exercised due diligence by relying upon the MDJ’s office to advance the case.
Id.” Mills, 162 A.3d at 327 (Wecht concurring).5
Nevertheless, the Mills concurrence admonished that a future case
repeating Bradford’s peculiar facts of reliance-without-verification followed
by significant delay may not be met with the same favorable result, given
recent advances in case/record tracking capabilities. Of import for our present
purposes, however, is that the Commonwealth’s 2008 reliance at issue in the
case sub judice preceded the 2017 admonition in Mills by nine years.
Therefore, we deem no error with the trial court’s decision to categorize
as excludable “judicial delay” the Lycoming County Clerk of Court’s six-month
delay in transmitting the record to this Court.
Finally, as noted, we briefly address this Court’s series of orders granting
the Commonwealth’s motions requesting extensions of the briefing schedule
____________________________________________
5 The concurring opinion’s observation in Rule 600 of a “linear construction”
mandating due diligence review prior to addressing judicial delay was later
adopted by the majority in Harth.
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and continuances of oral argument. With respect to the Commonwealth’s
receipt of a 49-day extension of its briefing deadline, a review of the record
shows the Commonwealth’s detailed explanation that an unusually heavy
appellate workload, much of which involved synchronous, pressing obligations
on the Supreme Court’s capital docket, was offered to and accepted by this
Court, thus allaying any concern that the Commonwealth was idly “sitting on
its hands” in disregard of its obligations to put forth a reasonable effort to
complete its brief in light of Appellant’s speedy trial rights.
As for the motions to continue oral argument, the first alleged the
prosecutor’s illness, which this Court accepted. The second request for
continuance explained that this Court had listed the prosecutor’s other case
about one week prior to listing the present case to the same argument date,
Tuesday, June 8, 2010, at 8:30 a.m. The motion therefore sought to retain
the listing for the first case scheduled for this date and time and to reschedule
the present matter “to a future date,” because counsel could not be in two
places at the same time.
This open-ended request, as stated, suggested readiness for argument
on any future date, including the following day of oral argument, Wednesday,
June 9, 2010, particularly where the motion also indicated that undersigned
counsel was familiar with the record and had thoroughly researched the law
governing the issues raised, formulated the arguments to be presented to the
Superior Court, and written the briefs that were filed in this Court. The
circumstances surrounding the motion, therefore, are consistent with a finding
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of continued due diligence in preparing for oral argument throughout the
relevant time. Cf. Harth, 252 A.3d at 616 (citing precedent acknowledging
Commonwealth is not accountable for delay where prosecutor is ready for trial
but court calendar did not accommodate it).
For the foregoing reasons, we conclude that the lower court
appropriately denied Appellant’s post sentence motion for Rule 600 relief as
devoid of merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/04/2021
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