Com. v. Neidig, N.

J-S76009-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NEIL ANDREW NEIDIG
Appellant No. 2135 MDA 2012
Appeal from the Judgment of Sentence entered October 18, 2012,
in the Court of Common Pleas of Northumberland County,
Criminal Division, at No(s): CP-49-CR-0000756-2011
and CP-49-CR-0000295-2012
BEFORE: ALLEN, LAZARUS, and FITZGERALD, JJ.*
CONCURRING STATEMENT BY FITZGERALD, J.: FILED FEBRUARY 03, 2015
I respectfully disagree with the majority’s conclusion that the
Commonwealth commenced trial within 365 days of the filing of the
complaint. However, for the reasons that follow, I concur in the
determination that Appellant was not entitled to relief on his Rule 600 claim.
The underlying criminal complaint in CR-756-2011 was submitted to,
and accepted for filing by, the magisterial district court on June 20, 2011.
That same day, the magisterial district judge issued process under which
Appellant remained in custody after failing to post bail. The complaint,
*
Former Justice specially assigned to the Superior Court.
J-S76009-13
however, was not stamped and docketed as filed in the Court of Common
Pleas until July 26, 2011.
Although the majority and the trial court apply the July 26, 2011 filing
date for their Rule 600 analyses, I would hold the start date for Rule 600 is
the filing of the complaint that begins the criminal proceeding. See
Pa.R.Crim.P. 600(G) & cmt. (“It is intended that ‘complaint’ also includes
special documents used in lieu of a complaint to initiate criminal proceedings
such as criminal proceedings instituted by a medical examiner or coroner”),
rescinded & replaced by Pa.R.Crim.P. 600(A)(2)(a) & cmt., eff. July 1,
2013;1 Commonwealth v. Mitchell, 372 A.2d 826, 829 (Pa. 1977)
(discussing question of “when is a complaint deemed filed” for purposes of
Rule 1100, noting “in the situation where a complaint is presented to a court
and a warrant issued, the criminal proceedings begin with the presentation
of the complaint to the court[,]” and holding “it is clear that Rule 1100
contemplates the commencement of the running of the mandatory period at
the point criminal proceedings are initiated”); see also Pa.R.Crim.P. 504-
509 (discussing institution of proceedings by “filing” complaint with
appropriate issuing authority).
Thus, I would conclude the complaint was “filed” on June 20, 2011, for
the purposes of Rule 600, and the mechanical run date expired 365 days
1
The provisions and comments are substantially similar in the both the
current and former versions of Rule 600, as well as former Rule 1100.
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J-S76009-13
later, on June 19, 2012. See Pa.R.Crim.P. 600(G), rescinded eff. July 1,
2013. Trial, for the purposes of Rule 600, commenced on July 9, 2012,
when a jury was selected. See Commonwealth v. Kluska, 399 A.2d 681,
682 (Pa. 1979); Pa.R.Crim.P. 600, cmt. (discussing commencement of trial),
rescinded eff. July 1, 2013. Thus, there was a twenty-day delay from
expiration of the mechanical Rule 600 run date and the commencement of
trial.
Unfortunately, the trial court did not address this prima facie violation
of former Rule 600(G). Therefore, the court did not render specific findings
of fact regarding excludable or excusable time, but assumed the
Commonwealth’s view of the record was correct. However, Appellant fails to
demonstrate that the court erred in its assumption that more than eighty
days were attributable to his inability to obtain counsel after this matter was
transferred to the Court of Common Pleas. Because Appellant has not
demonstrated error in that calculation, I would discern no basis to disturb
the court’s assumption and conclude that those eighty days did not run
against the Commonwealth. Accordingly, I would conclude Appellant was
not entitled to discharge under former Rule 600(G).
Therefore, I concur.
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