J-S45015-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

PHILLIP BRANDEN ROBINSON, JR.,

                          Appellee                   No. 2116 MDA 2014


             Appeal from the Order Entered November 10, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0005437-2013


BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.

MEMORANDUM BY BOWES, J:                          FILED DECEMBER 22, 2015

       The Commonwealth of Pennsylvania appeals from the November 10,

2014 order that dismissed the criminal charges against Phillip Branden

Robinson, Jr., pursuant to Pa.R.Crim.P. 600. In a prior memorandum, we

disposed of one aspect of the Commonwealth’s argument and remanded the

case for the trial court to prepare a revised trial court opinion that addressed

the Commonwealth’s remaining claim. The trial court has filed its opinion,

and we now examine the merits of the Commonwealth’s challenge to the




*
    Former Justice specially assigned to the Superior Court.
J-S45015-15



trial court’s speedy-trial determination pursuant to Rule 600.1    We reverse

and remand.

       In our prior memorandum, we outlined the facts and relevant

procedural history as follows.

       At approximately 5:00 p.m. on April 30, 2013, the West
       Manchester Township Police Department conducted an
       undercover operation in the parking lot of an Ollie’s Bargain
       Outlet department store in West Manchester. During the sting,
       then-Police Officer, now-District Justice,1 Jeffrey Oberdorf
       observed Robinson and Moses Jerome Autry deliver cocaine to a
       confidential informant (“CI”) in exchange for pre-recorded buy
       money. Robinson was operating the vehicle used to deliver the
       cocaine. He was also transporting a five-year-old child who was
       seated in the rear of the vehicle. The drug transaction occurred
       while Robinson, Autry, and the child were in the vehicle with the
       CI.

             After the transaction, the CI immediately relinquished the
       cocaine to police, who stopped Robinson’s vehicle as it
       attempted to leave the parking lot. A check of Robinson’s
       Pennsylvania driver’s license revealed that his driving privileges
       had been suspended. Field tests on the suspected contraband
       revealed the presence of cocaine, and the officers sent the
       substance to the Pennsylvania State Police laboratory for
       additional testing.

             Robinson was arrested immediately and charged with
       criminal conspiracy to deliver a controlled substance, possession
       with intent to deliver a controlled substance, driving while
       operating privilege is suspended, and endangering the welfare of
       children. The preliminary hearing was initially scheduled on May
       10, 2013; however, the presiding magistrate postponed the
       hearing to June 11, 2013.         The Commonwealth’s primary
____________________________________________


1
 As the trial judge who granted Appellant’s Rule 600 motion for discharge
has since left the bench, the case was reassigned during remand to the
Honorable Harry M. Ness.



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     witness, Officer Oberdorf, was not available on that date due to
     training relating to his pending installation as a Magisterial
     District Justice. Accordingly, the hearing was continued again
     until July 2, 2013. Unfortunately, Robinson was not ready to
     proceed on that date so a twenty-seven-day continuance was
     granted until July 29, 2013.

            The preliminary hearing occurred on July 29, 2013, and
     the case was held over for court. On August 5, 2013, the
     Commonwealth issued an arrest warrant for Robinson’s
     codefendant, Moses Autry, and on August 19, 2013, notice was
     entered that the two cases would be consolidated for trial
     pursuant to Pa.R.Crim.P. 582.        However, Autry fled the
     jurisdiction, and on August 24, 2013, the arrest warrant was
     converted to a fugitive warrant.        At an ensuing pretrial
     conference, Robinson’s attorney stated that Robinson did not
     object to the continued delay pending Autry’s apprehension “as
     long as any delay . . . is attributed to the Commonwealth[.]”
     N.T., 10/30/13, at 3. The trial court responded, “All right, then
     we’ll deal with who takes what time at a later date.” Id.

           Autry remained a fugitive until February 12, 2014. As
     neither party had sought to sever the cases in the interim,
     Autry’s flight resulted in 191 days of delay for the purposes of
     determining the Commonwealth’s compliance with Rule 600.
     The certified record does not disclose whether the
     Commonwealth advised Robinson of Autry’s apprehension before
     April 2014, but, for various reasons, Appellant’s case remained
     on the trial docket until September 8, 2014, a total of 208
     additional days of delay.2

           On September 2, 2014, Robinson filed a motion to dismiss
     the criminal charges under Rule 600. On September 8, 2014,
     the date scheduled for trial, the trial court held oral argument
     regarding Robinson’s motion. The focus of the discussion was
     whether the 191-day delay caused by Autry’s flight should be
     attributed to the Commonwealth. The trial court did not render
     a decision at the close of argument.        Instead, it provided
     Robinson additional time to file a memorandum and present case
     law to support his position that the delay should be included in
     the Rule 600 computation.           Robinson failed to file a
     memorandum as part of the certified record.3 Nevertheless, on
     November 10, 2014, the trial court entered the above–

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     referenced order granting Robinson’s Rule 600 motion and
     discharging the criminal charges. The Commonwealth timely
     filed the instant appeal.
     ___________________________________________________
     1
       We refer to the witness as Officer Oberdorf herein.
     2
      Five of the 208 days are excludable delay and twenty-nine days
     were potentially excusable delay as a result of Officer Oberdorf’s
     unavailability to testify due to his obligations to the magisterial
     district court. On June 17, 2014, Autry pled guilty to the only
     criminal charge leveled against him under the consolidated
     criminal action number, one count of possession with intent to
     deliver. Robinson’s case was not called for trial until nearly
     three months later.
     3
         In his brief, Robinson asserts that he submitted a
     memorandum to the trial court via e-mail, with a copy to the
     prosecuting attorney, on September 19, 2014.             Robinson
     appended to his brief a copy of the e-mail but omitted the three
     exhibits that were referenced therein. While the Commonwealth
     neither concedes nor contests that it received Robinson’s e-mail,
     it highlights that, since the document was not filed with the trial
     court, it is not included in the record certified for appellate
     review.

Commonwealth v. Robinson, __ A.3d__, 2015 WL 6467725 (Pa.Super.

2015) (unpublished memorandum at 1-5).

     On appeal, the Commonwealth presents the following issues for our

review:

     I.     The trial court erred in granting the defendant’s Rule 600
     motion based on the record and the history of the case in light of
     the trial court’s lack of fact finding.

     II.  The trial court erred by failing to include a
     contemporaneous statement of finding of fact with its order, or
     subsequently in its 1925(a) opinion.




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Commonwealth’s brief at 5.2

       This   appeal     implicates    the     prompt-trial   provisions   outlined   in

Pa.R.Crim.P. 600.3 The relevant considerations are as follows:

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

Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa.Super. 2007) (en

banc).

       Rule 600 has dual purposes.             Commonwealth v. Roles, 116 A.3d

122, 125 (Pa.Super. 2015).            While it is intended to protect a criminal
____________________________________________


2
    As noted supra, in our prior memorandum, we rejected the
Commonwealth’s assertion that the trial court was required to include a
contemporaneous statement of its finding of facts in the order discharging
Robinson pursuant to Pa.R.Crim.P. 600. Specifically, we concluded, “We
agree with the trial court’s determination that it was under no obligation to
file a statement of facts contemporaneously with the order granting Rule 600
relief, and we find that the Commonwealth’s meager argument to the
contrary is unconvincing.” Robinson, supra unpublished memorandum at
9. Accordingly, we do not revisit this issue herein.
3
  Effective July 1, 2013, our Supreme Court adopted a new Rule 600 that
reflects prevailing case law. See Pa.R.Crim.P. 600, Comment. As the
Commonwealth filed the criminal complaint in this case prior to the effective
date of the revisions, the former rule guides our review.                See
Commonwealth v. Brock, 61 A.3d 1015, 1016 n. 2 (Pa. 2013).



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defendant’s rights to a speedy trial, it is also designed to protect society’s

interest by prosecuting criminal conduct. Id. The pertinent version of Rule

600 requires the Commonwealth to try a criminal defendant within 365 days

from the date that the criminal complaint is filed.        See Former Rule

600(A)(3) (effective until July 1, 2013). If the Commonwealth fails to bring

the criminal defendant to trial within the pertinent period, the defendant

“may apply to the court for an order dismissing the charges with prejudice

on the ground that this rule has been violated.” Former Rule 600(G)

(effective until July 1, 2013). “To determine whether dismissal is required

under Rule 600, a court must first calculate the ‘mechanical run date,’ which

is 365 days after the complaint was filed.” Commonwealth v. Goldman,

70 A.3d 874, 879 (Pa.Super. 2013).      Thereafter, an adjusted run date is

calculated by adding excludable time and excusable delay to the mechanical

run date. Id. Periods of delay caused by the defendant are excluded from

the speedy-trial computation. See Former Rule 600(C)(1)-(3) (effective until

July 1, 2013).   Excusable delay is a judicial construct that encompasses a

variety of situations where the delay was outside of the Commonwealth’s

control. We have stated, “[e]xcusable delay is delay that occurs as a result

of circumstances beyond the Commonwealth’s control and despite its due

diligence.” Goldman, supra at 879. We further explained, “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

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rather a showing by the Commonwealth that a reasonable effort has been

put forth.”   Ramos, supra at 1102.       Finally, mindful of the Rule’s dual

purposes, where “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.” Id. at 1100.

      As a preliminary matter, we note that 491 days passed between the

date the criminal complaint was filed on April 30, 2013 and the date that

Robinson presented his Rule 600 motion on September 2, 2014. Thirty-two

days of that period were excludable because they were attributable to delays

created by the defendant.       Likewise, eighty-two days were arguably

excusable delays that occurred beyond the Commonwealth’s control and

despite its diligence, i.e., delays associated with the magisterial district

court’s schedule and Officer Oberdorf’s magisterial training and obligations

to that court. Thus, even after accounting for all of the excludable time and

days of potentially excusable delay, unless the 191-day period associated

with Autry’s flight is also deemed excusable, the Commonwealth exceeded

the 365-day limit by twelve days. Stated another way, unless the 191-day

period is included in the calculation to determine the adjusted run date, the

Commonwealth would have had to try the case against Robinson by Friday,

August 22, 2014 to comply with Rule 600.




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          The   Commonwealth      argues    that    the    trial    court’s   Rule   600

determination lacks a foundation in the certified record. The Commonwealth

asserts that the trial court erred in assessing against it for the purposes of

the speedy-trial rule the 191-day delay caused by co-defendant Autry’s

flight.    Relying upon its interpretation of the recent amendments to Rule

600, which do not apply to the case at bar, the Commonwealth argues that

all delays are excluded from the computation of the 365-day period unless

the delay is caused by the Commonwealth’s lack of due diligence. Applying

this rationale to the instant case, the Commonwealth reasons that, since it

could not take Robinson to trial while his co-defendant remained a fugitive,

the resulting 191-day delay was not the product of its lack of diligence.

Hence, the Commonwealth posits that, assuming all of the excludable time

and excusable delay discussed supra, the correct adjusted run date was

March 2, 2015.           It continues that since it was prepared to prosecute

Robinson        during   September   of   2014,    the    Rule     600   discharge   was

approximately six months premature.

          The crux of the Commonwealth’s argument is that it was not required

to sever Robinson’s case in order to try him separately at an earlier date. It

reasons that Robinson was aware of Autry’s evasion and even consented to

the delay so long as it counted against the Commonwealth for purposes of

the Rule 600 computation. The Commonwealth also contends that it utilized




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due diligence in pursuing Autry and bringing Robinson to trial after Autry’s

February 2014 apprehension and June 2014 guilty plea.

      Robinson counters that the Commonwealth should not be allowed to

hide behind Autry’s flight in order to justify its failure to bring him to trial in

a timely manner. He opines, “If they fe[lt] it [wa]s absolutely necessary to

try both of the defendant’s [sic] at the same time, the Commonwealth

should [have] notif[ied] the court in order to have the time tolled.”

Robinson’s brief at 6-7. He asserts that the Commonwealth’s on-the-record

statement during the October 2013 hearing that it was attempting to

execute a warrant for Autry’s arrest was ineffective notice because the

Commonwealth did not specifically inform him that Autry was a fugitive or

claim that he was absolutely necessary to trial.       Indeed, Robinson claims

that he was not provided notice of Autry’s fugitive status and the associated

delay until September of 2014.       He also stresses that he conditioned his

initial acceptance of the Commonwealth’s efforts to locate Autry during

October 2013, “so long as any delay at that point is attributed to the

Commonwealth[.]” N.T., 10/30/13, at 3. Finally, Robinson challenges the

Commonwealth’s assertion that it exercised due diligence in apprehending

Autry or in bringing either defendant to trial once he was in custody.

Robinson acknowledges that the Commonwealth is not required to sever a

case; however, he argues that it should be accountable for the delays




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associated with its refusal and asserts that the Commonwealth’s refusal to

sever the cases under these facts is tantamount to a lack of due diligence.

       In rejecting the Commonwealth’s claim that the 191-day period

associated with Autry’s flight should not be attributed to it, the trial court

relied upon our Supreme Court’s holding in Commonwealth v. Hagans,

349 A.2d 470 (Pa. 1978).             In Hagans, the Supreme Court addressed

whether a defendant’s failure to object to the delay caused by a co-

defendant should be excluded from the speedy-trial computation.               The

Supreme Court concluded that it was not excludable time.          Essentially, it

found that requiring a defendant to resist his co-defendant’s dilatory actions

was a distortion of the speedy-trial rules.        Specifically, the High Court

reasoned,

             In interpreting the provisions of Rule 1100[4] we must not
       lose sight that the Rule was promulgated to meet the State's
       responsibility to afford an accused a speedy trial. In this context
       it must be remembered that the accused has no duty to bring
       himself to trial, but rather the State has that obligation, which it
       must discharge with reasonable dispatch. Consistent with these
       principles, Rule 1100 places the obligation upon the
       Commonwealth to commence trial no later than the prescribed
       time, unless excused upon a showing of due diligence. The
       defense is only charged for delays caused by the defendant
       himself or his counsel. To expand upon this obligation by
       requiring him to resist dilatory actions by his co-defendants
       requires the imposition of a responsibility at odds with the
       aforementioned principles.
____________________________________________


4
   Rule 600 supplanted the former Pa.R.Crim.P. 1100 when the rules of
criminal procedure were renumbered.



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Id. at 577.

       Instantly, the trial court relied upon our Supreme Court’s discussion in

Hagans to conclude that the onus was upon the Commonwealth rather than

Robinson to sever the two criminal cases, and therefore, the 191-day period

associated with Autry’s avoidance could not be attributed to Robinson.

While the trial court is correct in so far as it concluded that Robinson could

not be saddled with delay caused by Autry’s flight, that does not mean ipso

facto that discharge was warranted pursuant to Rule 600.                   Stated simply,

while the Hagans Court’s overarching proposition that a defendant cannot

be held accountable for a codefendant’s delay for purposes of determining

the   Commonwealth’s         compliance        with   the   the   speedy    trial   rule   is

unassailable, as we discuss below, the case is not dispositive of either the

Rule 600 violation or the Commonwealth’s diligence.

       In Commonwealth v. Hill, 736 A.2d 578, 581 (Pa. 1999),5 the

Supreme Court applied the rationale it espoused in Hagans to find that

periods of delay caused by a codefendant was not excludable time pursuant

to the speedy-trial computation. However, that did not end the High Court’s
____________________________________________


5
  Commonwealth v. Hill, 736 A.2d 578, 581 (Pa. 1999) was a consolidated
appeal involving two unrelated criminal defendants, Vernon Hill and George
Cornell, who both contended that this Court erred in its review of the trial
court’s application of the speedy trial-rule, which at that time was
Pa.R.Crim.P. 1100. As it relates to the case at bar, the pertinent aspects of
that case stem from the High Court’s review of Cornell’s appeal.



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inquiry.     Instead, the Hill Court concluded that in considering whether

discharge was warranted under the speedy-trial rule, the delay associated

with the codefendant would be excused if the Commonwealth acted with due

diligence.    Id. at 591.   The court reasoned, “However, even where a

violation of Rule 1100 has occurred, the motion to dismiss the charges

should be denied if the Commonwealth exercised due diligence and the

circumstances occasioning the postponement were beyond the control of the

Commonwealth.       Id. (internal quotation marks omitted).   Thereafter, the

Supreme Court reviewed the reasons for the various delays and determined

that the Commonwealth exercised due diligence in its effort to comply with

the speedy-trial rule and “that the delay in commencing trial was occasioned

by circumstances beyond the control of the Commonwealth.” Id. at 592.

      Relevant herein, this Court subsequently emphasized that the Hill

Court reached its determination despite the fact that the Commonwealth had

opposed the defendant’s motion to sever his prosecution from his dilatory

co-defendant.      See Commonwealth v. Jackson, 765 A.2d 389, 393

(Pa.Super. 2000) (“The majority in Hill reached this conclusion despite the

fact, relied upon by the dissent in Hill, that [the defendant] had moved for

severance from the outset and the Commonwealth had opposed the motion).

Significantly, in Jackson, we rejected both the proposition that the trial

court was required to move for severance when it encounters a potential

speedy-trial violation and the notion that the Commonwealth’s objection to

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severance was relevant to whether it exercised due diligence.      Id. at 395.

We explained,

     Furthermore, it appears as if a majority of our [S]upreme
     [C]ourt in Hill implicitly rejected appellant's argument that the
     Commonwealth is required to move for a severance when faced
     with a possible Rule 1100 violation. [T]he trial court in [Hill] had
     found ‘particularly persuasive’ the fact that the Commonwealth
     failed to move for severance and had therefore failed to meet its
     burden of proving due diligence; nevertheless, a majority of our
     [S]upreme [C]ourt affirmed the trial court's reversal.

Id. As the Commonwealth in Jackson had been prepared to go to trial and

never requested any continuances, we concluded that it was duly diligent

despite the fact that it opposed severance in the face of the potential Rule

1100 violations caused by the co-defendant’s request for new counsel.

Accordingly, we concluded that discharge was not warranted.

     We adopted the identical rationale in Commonwealth v. Kearse, 890

A.2d 388 (Pa.Super. 2005), and Commonwealth v. Robbins, 900 A.2d

413 (Pa.Super. 2006), and in both cases, we determined that due diligence

did not require the Commonwealth to sever a case in order to avoid violating

Rule 600 where all of the delays were beyond the Commonwealth’s control

and the Commonwealth had been prepared for trial prior to the adjusted run

date. Id. at 417. In Kearse, supra, we stated,

     Thus, we do not find that [our case law] mandate[s] that the
     Commonwealth sever a case when faced with a potential Rule
     600 violation. On the contrary, this Court has held that the
     Commonwealth is not required to sever a defendant's case from
     a co-defendant's when faced with a possible Rule 600 violation.
     Commonwealth       v.   Jackson,    765     A.2d   389,    395

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      (Pa.Super.2000).      This holding is in accordance with the
      historical posture of the Rule, which recognizes that a
      prophylactic application is not in the interest of justice and also
      that the Rule must take into account society's interest in the
      effective administration of justice.

Id. at 304-395.

      Likewise, relying upon our discussion in Kearse, supra, the Robbins

Court concluded, “severance is not required of the Commonwealth when it

faces a possible Rule 600 violation, and the trial court should not have

factored the refusal to sever in its Rule 600 analysis.” Robbins, supra at

417. Observing that none of the continuances in that case was attributable

to the Commonwealth and noting that it been prepared to proceed to trial

within the mechanical run date, we concluded that the “Commonwealth may

not be charged with failure to exercise due diligence where its own record of

attendance and preparedness throughout the pendency of this case was

never faulted.” Id.

      Instantly, Robinson was not brought to trial prior to the adjusted run

date of August 22, 2014, which, consistent with Hagans was not extended

by the 191 days associated with Autry’s flight. Thus, there was a technical

violation of Rule 600.   Nevertheless, consistent with our Supreme Court’s

perspective in Hill, supra and our application of those principles in the cases

previously discussed, a technical violation of the speedy-trial rule does not

warrant discharge where the record reveals that the Commonwealth

exercised due diligence. Moreover, the Commonwealth was not required to

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to sever Robinson’s case from Autry’s in order to avoid the Rule 600

violation and the failure to sever is not evidence of a lack of diligence.

      Herein, few if any of delays were attributable to the Commonwealth’s

requests for continuances or its inaction. The certified record reveals that

the delays and continuances were the result of the presiding magistrate,

Officer Oberdorf’s unavailability, or Robinson’s inability to proceed. None of

these delays is attributable to a lack of the Commonwealth’s diligence.

      Moreover, the Commonwealth entered timely notice of its intent to

consolidate Robinson’s and Autry’s cases for trial, and informed Robinson of

the status of the case at an October 2013 pretrial conference. Robinson did

not object to the consolidation and agreed to the delay on the condition that

it was “attributed to the Commonwealth[.]” N.T., 10/30/13, at 3. However,

the trial court did not address at that point which party would be

encumbered by the delay and it specifically noted that it would address that

issue at a later date.   Id. Thus, notwithstanding Robinson’s qualifications,

the Commonwealth’s decision to pursue one consolidated case against both

defendants was neither remiss nor evidence of a lack of diligence.

      Autry was apprehended on February 12, 2014.         During an April 9,

2014 hearing, the Commonwealth noted that it was still disinclined to sever

the cases and informed Robinson and the trial court that it was waiting for

Autry’s pre-arraignment case to mature procedurally so the defendants

could be tried together. Robinson did not object to the delay or request a

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severance. Thereafter, the Commonwealth was prepared for trial during the

second week of June 2014 but Robinson’s prosecution was delayed by

defense counsel’s unavailability. During the August 2014 trial term, Officer

Oberdorf was unavailable because he was attending to his magisterial court

duties.6

       The foregoing reveals that the Commonwealth exercised due diligence

throughout the prosecution of this case.           The Commonwealth never

requested a continuance, and the delays associated with the magisterial

court calendar and Officer Oberdorf’s training and obligations to his judicial

position were not caused by the Commonwealth’s actions or omissions.

Moreover, the Commonwealth was prepared to bring Robinson to trial during

June 2014, which was prior to the adjusted run date, but Robinson sought to

continue the case.      While this fact is not dispositive, the Commonwealth’s

readiness for trial prior to the adjusted run date is convincing evidence that

it acted with due diligence to comply with Rule 600.       Thus, mindful that,

pursuant to Jackson, supra and Robbins, supra, the Commonwealth’s

objection to severing the criminal cases is irrelevant to the due diligence

____________________________________________


6
  While there is no information in the certified record concerning the June
and August 2014 trial terms, Robinson stipulated to the Commonwealth’s
statement of the case, subject to two exceptions that are not relevant
herein. As the assertions regarding the June and August trial terms are
articulated in the Commonwealth’s statement of the case, we presume their
validity for the purpose of the due diligence review.



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determination when the Commonwealth was otherwise ready to proceed, we

conclude that the trial court erred in granting Robinson’s Rule 600 motion

based upon the Commonwealth’s reluctance to sever the cases.        Stated

another way, as evidenced by the absence of any Commonwealth requests

for continuances and its readiness during the July 2013 preliminary hearing

and the June 2014 trial term, which were were both continued due to

Robinson, the Commonwealth exercised reasonable effort to prosecute

Robinson in a timely fashion notwithstanding its unwillingness to sever the

cases in response to Autry’s flight.

      Accordingly, we reverse the trial court order dismissing the criminal

charges and remand for further proceedings.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2015




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