J-A28002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DARIUS L. BURKETT,

                         Appellant                   No. 2485 EDA 2013


           Appeal from the Judgment of Sentence July 31, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0007685-2009


BEFORE: GANTMAN, P.J., PANELLA and SHOGAN, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                 FILED APRIL 14, 2016

      After careful review, I respectfully disagree with the Majority’s

conclusion that Appellant’s Rule 600 claim lacks merit.        Thus, I would

reverse.

      In addressing violations of Rule 600, this Court explained:     “Once a

violation of Rule 600 has been established, as it has here, the inquiry

becomes whether the Commonwealth exercised due diligence in bringing

Appellant to trial and if the circumstances occasioning the postponement

were beyond the control of the Commonwealth.”            Commonwealth v.

Kearse, 890 A.2d 388, 392 (Pa. Super. 2005).         “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
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forth.” Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. Super. 2007)

(emphasis in original). “Moreover, the Commonwealth bears the burden of

proving that its efforts were reasonable and diligent.” Id. As our Supreme

Court has stated:          “[t]he Commonwealth . . . has the burden of

demonstrating by a preponderance of the evidence that it exercised due

diligence.” Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012)

       During the hearing on Appellant’s Rule 600 motion and in its opinion,

the trial court identifies several periods of time that resulted in delay of trial.

In reference to each of those periods of time, the trial court concluded that

the time could not be counted against the Commonwealth.               Despite the

court’s conclusion that the time should not be counted against the

Commonwealth, however, the trial court did not conduct a due diligence

analysis regarding some of these delays.

       There are two specific timeframes with which I am most concerned.

First are the delays resulting from Appellant not being brought to court from

his place of incarceration.       The record establishes that Appellant was not

transported to court on January 18, 2011, and March 22, 2011.               Those

absences resulted in significant delays in the procession of this matter and

ultimately bringing Appellant to trial.1 In considering these delays, the trial

____________________________________________


1
  I accept the trial court’s conclusion that the delay caused by the closing of
the courthouse on January 27, 2011 was not to be charged to the
Commonwealth.



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court reasoned that it was “not the Commonwealth’s fault” as the District

Attorney’s office is not responsible for the prison or the sheriff’s department.

N.T., 1/15/13, at 11-12.     Lacking from this analysis, however, was any

questioning as to whether the Commonwealth had indeed issued writs to

have Appellant brought to court from his place of incarceration. Moreover,

the Commonwealth did not present any evidence or assert that the writs had

in fact been issued.

      In a factually similar case, Commonwealth v. Thompson, 93 A.3d

478 (Pa. Super. 2014), our Court addressed this very issue. Conducting a

Rule 600 analysis in Thompson, the trial court concluded that it was

“administrative error” that resulted in delay where the appellant was not

brought to court from his place of incarceration on two occasions. The trial

court determined the period of time caused by this delay was beyond the

Commonwealth’s control and excluded that time from its calculation.

      On appeal, however, this Court noted that the writs to secure the

appellant’s presence in court were not part of the record. Additionally, there

were no findings regarding the Commonwealth’s efforts, or lack thereof, in

securing the appellant’s presence in court.     Thus it was unclear as to why

the appellant was not brought to court. This Court reasoned: “Based upon

the record before us, it is plausible that these errors were a result of

administrative error, either on the part of the trial court or the prison, but it




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is also plausible that the prosecutor’s failure to seek writs from the court

caused the delays.” Id. at 488-489.

         Here,   the   trial   court   failed   to   make   a   finding   regarding   the

Commonwealth’s efforts, or lack thereof, in securing Appellant’s presence in

court.     Accordingly, it is unclear as to why Appellant was not brought to

court.    As in Thompson, it is plausible that these errors were a result of

administrative error, but it is also plausible that the prosecutor’s failure to

seek writs from the court caused the delay. Regardless, the Commonwealth

had the burden of establishing that it acted with due diligence. As a result,

the trial court’s summary finding that it was “not the Commonwealth’s fault”

is insufficient to establish that the Commonwealth acted with due diligence

in timely bringing Appellant to trial.

         I find troubling also the trial court’s summary conclusion regarding the

unavailability of one of the Commonwealth’s witnesses, an officer injured on

duty. The record reflects that due to the officer’s failure to appear at trial on

two occasions, a 177-day period of delay resulted.                The only information

provided in explanation for the officer’s failure to appear is that he was

injured on duty. There was no explanation as to whether that injury would

prevent him from attending and testifying at trial. Indeed, it appears that

the trial court initially began to question the Commonwealth regarding the

officer and the specifics of the injury.             N.T., 1/15/13, at 19-21.         The

Commonwealth was unable to provide any details on this matter. Id. at 20.


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In an apparent shift of focus, however, instead of continuing in its attempts

to gather information, the trial court made the following summary

conclusion:

             I don’t think there’s any evidence that the Commonwealth
      is not trying to bring this case to trial. So even without further
      details on the [injured on duty status], the Commonwealth’s
      been exercising due diligence. If the police officer doesn’t show
      up, then the explanation they get is he’s injured on duty, he
      can’t be here. They simply don’t have the power to force that
      officer to come in.

N.T., 1/15/13, at 21.

      This summary conclusion is insufficient to support the determination

that the Commonwealth acted with due diligence in ensuring that the officer

was available and ready to testify at trial, and that the officer’s failure to

appear was beyond their control. While the trial court made a finding that

there was no evidence that the Commonwealth was not acting with due

diligence in this matter, this determination is very different from finding that

the Commonwealth has proceeded with due diligence.

      For these reasons, I respectfully dissent.




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