J-S16040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JONATHON DUKE JONES,

                            Appellant                No. 1495 WDA 2016


            Appeal from the Judgment of Sentence August 30, 2016
            in the Court of Common Pleas of Westmoreland County
               Criminal Division at No.: CP-65-CR-0000670-2013


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 24, 2017

        Appellant, Jonathon Duke Jones, appeals from the judgment of

sentence imposed August 30, 2016, following his non-jury trial conviction of

driving under the influence (DUI); DUI—highest rate of alcohol; and failing

to yield the right of way at a stop sign.1 Specifically, he challenges the trial

court’s denial of his Rule 600 motion to dismiss. We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record. The docket confirms that the Commonwealth

filed a complaint on November 29, 2012 charging Appellant with two counts

of DUI and related summary offenses. On July 23, 2013, the court issued a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  75 Pa.C.S.A. §§ 3802(a)(1), (c), and 3323, respectively. The trial court
found Appellant not guilty of careless driving, 75 Pa.C.S.A. § 3714(a).
J-S16040-17



bench warrant for Appellant when he failed to appear for a call of the

criminal list. The court vacated the bench warrant on August 1, 2013, and

ordered that: “The Court Administrator is directed to schedule the matter for

plea during the next available term of Criminal Motions Court.”            (Order,

8/01/13).

      On April 11, 2014, the court administrator scheduled this matter for a

plea on May 20, 2014.         On May 20, 2014, the court granted defense

counsel’s continuance motion and placed the matter on the trial list.          On

June 2, 2014, Appellant filed a motion to dismiss pursuant to Pennsylvania

Rule of Criminal Procedure 600. The court conducted a Rule 600 hearing on

August 14, 2014.

      During the hearing, Marcia Simons, a docket clerk working in the

Westmoreland County Clerk’s office, testified that the standard procedure

when an order comes into the clerk’s office is for the docket clerk to make

eleven copies of the order and to place the copies in baskets for the judge,

the district attorney, the public defender, the court administrator, etc. (See

N.T. Hearing, 8/14/14, at 5-6). Ms. Simons testified that, after receiving a

copy of the August 1, 2013 order, she made copies and placed a copy in

each basket. (See id. at 6-7).

      Pamela Neiderhiser, the criminal court administrator, testified that

someone from her office goes to the clerk’s office at least twice a day to

retrieve    orders   from   their   basket,   and   then   manages   the     court

administration’s business after receiving those orders. (See id. at 11-12).

                                       -2-
J-S16040-17



The standard procedure in her office is for cases with outstanding bench

warrants to be placed in a file until the bench warrant was vacated. (See

id. at 13-14). However, she explained that she did not receive the August

1, 2013 order, and therefore, her office was not aware that the bench

warrant had been vacated until April 2014. (See id. at 13).

       On January 21, 2015, the trial court denied Appellant’s motion to

dismiss, finding that the time between August 1, 2013, and May 20, 2014,

“was caused by a clerical error in the Court Administrator’s Office that was

outside the control of the Commonwealth.”        (Order, 1/21/15).    The court

concluded that the evidence did not establish that the Commonwealth failed

to exercise due diligence in bringing the case to trial. (See id.).

       After a non-jury trial on March 10, 2016,2 the trial court found

Appellant guilty of the DUI and duties at a stop sign charges and deferred

sentencing. On August 30, 2016, Appellant was sentenced to not less than

five days, nor more than six months of incarceration in Westmoreland

____________________________________________


2
  The trial court continued this case on February 17, 2015, because there
was no time remaining during the trial term to try the case, and rescheduled
it for the April trial term. (See Order, 2/17/15). The court granted a
defense motion for continuance on March 26, 2015, and rescheduled the
case until the next available criminal non-jury trial, August 14, 2015. (See
Order, 3/26/15; Notice of Non-Jury Trial, 7/16/15). The trial court granted
the Commonwealth’s motion to postpone trial on August 13, 2015, and
rescheduled the trial for the next available non-jury trial, March 10, 2016.
(See Order, 8/13/15; Notice of Non-Jury Trial, 2/18/16). Appellant did not
raise any challenge to any periods of delay following denial of his Rule 600
motion to dismiss.



                                           -3-
J-S16040-17



County Prison. On September 30, 2016, the trial court granted Appellant’s

petition for leave to file an appeal nunc pro tunc, and Appellant filed notice

of his appeal.3

       Appellant raises one issue on appeal.

       1. Did the trial court abuse its discretion when it denied the
       Appellant’s motion to dismiss for the Commonwealth’s failure to
       bring the matter to trial in a speedy fashion as required by Rule
       600 of the Pennsylvania Rules of Criminal Procedure?

(Appellant’s Brief, at 4) (most capitalization omitted).

       In his issue, Appellant argues that the trial court erred in denying his

motion to dismiss pursuant to Rule 600, because he was not brought to trial

within 365 days after the complaint was filed, and the Commonwealth failed

to exercise due diligence in bringing him to trial. (See id. at 8-13).      We

disagree.

       We review Appellant’s Rule 600 argument according to the following

principles:

             In evaluating Rule [600] issues, our standard of review of
       a trial court’s decision is whether the trial court abused its
       discretion. Judicial discretion requires action in conformity with
       law, upon facts and circumstances judicially before the court,
       after hearing and due consideration. An abuse of discretion is
       not merely an error of judgment, but if in reaching a conclusion
       the law is overridden or misapplied or the judgment exercised is
____________________________________________


3
  Pursuant to the court’s order, Appellant filed a concise statement of errors
complained of on appeal on October 18, 2016. See Pa.R.A.P. 1925(b). On
October 27, 2016, the trial court entered a decree that the reasons for its
ruling could be found in the court’s January 21, 2015 order denying the Rule
600 motion to dismiss. See Pa.R.A.P. 1925(a).



                                           -4-
J-S16040-17


     manifestly unreasonable, or the result of partiality, prejudice,
     bias, or ill will, as shown by the evidence or the record,
     discretion is abused.

            The proper scope of review is limited to the evidence on
     the record of the Rule [600] evidentiary hearing, and the
     findings of the [trial] court. An appellate court must view the
     facts in the light most favorable to the prevailing party.

           Additionally, when considering the trial court’s ruling, this
     Court is not permitted to ignore the dual purpose behind Rule
     [600]. Rule [600] serves two equally important functions: (1)
     the protection of the accused’s speedy trial rights, and (2) the
     protection of society. In determining whether an accused’s right
     to a speedy trial has been violated, consideration must be given
     to society’s right to effective prosecution of criminal cases, both
     to restrain those guilty of crime and to deter those
     contemplating it. However, the administrative mandate of Rule
     [600] was not designed to insulate the criminally accused from
     good faith prosecution delayed through no fault of the
     Commonwealth.

            So long as there has been no misconduct on the part of
     the Commonwealth in an effort to evade the fundamental speedy
     trial rights of an accused, Rule [600] must be construed in a
     manner consistent with society’s right to punish and deter crime.
     In considering [these] matters . . . , courts must carefully factor
     into the ultimate equation not only the prerogatives of the
     individual accused, but the collective right of the community to
     vigorous law enforcement as well.

Commonwealth v. Armstrong, 74 A.3d 228, 234–35 (Pa. Super. 2013),

appeal denied, 84 A.3d 1061 (Pa. 2014) (citation omitted).

     Rule 600 provides in pertinent part: “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.”             Pa.R.Crim.P.

600(A)(2)(a). The rule further states:

     (1) For purposes of paragraph (A), periods of delay at any stage
     of the proceedings caused by the Commonwealth when the
     Commonwealth has failed to exercise due diligence shall be

                                    -5-
J-S16040-17


        included in the computation of the time within which trial must
        commence. Any other periods of delay shall be excluded from
        the computation.

Pa.R.Crim.P. 600(C)(1).

                To summarize, the courts of this Commonwealth
          employ three steps . . . in determining whether Rule 600
          requires dismissal of charges against a defendant. First,
          Rule 600(A) provides the mechanical run date. Second,
          we determine whether any excludable time exists pursuant
          to Rule 600(C). We add the amount of excludable time, if
          any, to the mechanical run date to arrive at an adjusted
          run date.

                If the trial takes place after the adjusted run date,
          we apply the due diligence analysis set forth in Rule
          600([D]). As we have explained, Rule 600[ ] encompasses
          a wide variety of circumstances under which a period of
          delay was outside the control of the Commonwealth and
          not the result of the Commonwealth’s lack of diligence.
          Any such period of delay results in an extension of the run
          date.    Addition of any Rule 600[ ] extensions to the
          adjusted run date produces the final Rule 600 run date. If
          the Commonwealth does not bring the defendant to trial
          on or before the final run date, the trial court must dismiss
          the charges.

        Due diligence is a fact-specific concept that must be determined
        on a case-by-case basis. Due diligence does not require perfect
        vigilance and punctilious care, but rather a showing by the
        Commonwealth that a reasonable effort has been put forth.

Armstrong, supra at 236 (citations and quotation marks omitted).

“[D]elays caused by administrative decisions of the court, decisions over

which    the   Commonwealth     has   no    control,   are   generally   excused.”

Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa. Super. 2011) (citation

omitted).      Furthermore, “where a period of delay is caused by the

defendant’s willful failure to appear at a court proceeding of which he has



                                      -6-
J-S16040-17



notice, exclusion is warranted.” Commonwealth v. Baird, 975 A.2d 1113,

1118 (Pa. 2009) (citation omitted).

             Most significantly, both the Rule and the cases in which we
      have applied it proceed from the premise that so long as there
      has been no misconduct on the part of the Commonwealth in an
      effort to evade the fundamental speedy trial rights of an
      accused, Rule 600 must be construed in a manner consistent
      with society’s right to punish and deter crime. Thus, we do not
      apply the Rule mechanically nor will we affirm its application
      where the trial court’s construction of it fails to acknowledge the
      policies it serves. The Commonwealth’s stewardship therefore
      must be judged by what was done . . . rather than by what was
      not done.

Commonwealth v. Selenski, 919 A.2d 229, 232 (Pa. Super. 2007),

affirmed, 994 A.2d 1083 (Pa. 2010) (case citations, some punctuation and

internal quotation marks omitted).

      Here, the Commonwealth filed a complaint charging Appellant on

November 29, 2012.         (See Complaint, 11/29/12).       Therefore, Appellant’s

mechanical    run   date    was   November   29,    2013.      See   Pa.R.Crim.P.

600(A)(2)(a).

      After Appellant was arraigned, he failed to appear for the call of the

criminal list on July 23, 2013, and the trial court issued a bench warrant for

his arrest.   (See Bench Warrant, 7/23/13).        On August 1, 2013, the trial

court issued an order vacating the bench warrant and directing the court

administrator to schedule the matter for a plea during the next available

term of criminal motions court.         (See Order, 8/01/13).          The court

administrator did not receive a copy of the order. (See N.T. Hearing, at 13).



                                      -7-
J-S16040-17



She testified that upon learning about the order in April 2014, she scheduled

the matter for the next available plea court, on May 20, 2014. (See id. at

14).

        The record from the Rule 600 hearing supports the trial court’s

conclusion that the 292-day delay between August 1, 2013, and May 20,

2014,    was   a   clerical   error   that   should   not   be   attributed   to   the

Commonwealth.       (See Order, 1/21/15); see also Riley, supra at 1149;

Armstrong, supra at 237 (quoting Commonwealth v. Preston, 904 A.2d

1, 14 (Pa. Super. 2006) (en banc), appeal denied, 916 A.2d 632 (Pa. 2007))

(“It is long-established that judicial delay may serve as a basis for extending

the period of time within which the Commonwealth may commence trial[.]”).

The record is devoid of any suggestion of Commonwealth misconduct. See

Selenski, supra at 232. In addition, we conclude that the eight-day period

between July 23, 2013—when Appellant did not appear at the call of the

criminal case—and August 1, 2013—when the court vacated the bench

warrant—was caused by Appellant’s willful failure to appear, and therefore

that time is excludable as well. See Baird, supra at 1118.

        Therefore, we conclude that 300 days should be added to the

mechanical run date, bringing the adjusted run date to September 25, 2014.

See Pa.R.Crim.P. 600(C)(1) (“Any other periods of delay [i.e., not caused by

the Commonwealth,] shall be excluded from the computation.”).                 Because

the adjusted run date had not yet occurred when Appellant filed his motion




                                         -8-
J-S16040-17



to dismiss on June 2, 2014, we conclude that the trial court did not abuse its

discretion in denying that motion.

      Accordingly, Appellant’s challenge to the trial court’s denial of his Rule

600 motion to dismiss is meritless.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2017




                                      -9-
