J-S25036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JEREMY DAVID CLARK                         :   No. 1706 WDA 2017

               Appeal from the Order Entered November 6, 2017
                In the Court of Common Pleas of McKean County
              Criminal Division at No(s): CP-42-CR-0000593-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 7, 2018

       The Commonwealth of Pennsylvania appeals the order of the Court of

Common Pleas of McKean County, entered November 6, 2017, granting the

motion of Jeremy David Clark pursuant to Pa.R.Crim.P. 600 and dismissing

the Commonwealth’s case against Clark. The Commonwealth had charged

Clark with two counts of statutory sexual assault and one count each of

aggravated indecent assault and indecent assault.1 After careful review, we

affirm.

       A criminal complaint was filed against Clark on October 4, 2015. Clark’s

preliminary hearing was originally scheduled for October 15, 2015, but,




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1   18 Pa.C.S. §§ 3122.1(b), 3125(a)(8), and 3126(a)(7), respectively.
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pursuant to his request, it was continued until October 21, 2015. Again at his

request, the preliminary hearing was continued until November 18, 2015.

        Clark’s “last day to plea”2 was originally assigned for January 28, 2016;

it was rescheduled to July 21, 2016, pursuant to multiple requests by Clark.

On September 15, 2016, the Commonwealth scheduled the case for trial on

January 30, 2017. Clark requested that the case be stricken from the trial list

and continued his last day to plea from October 28, 2016, to December 9,

2016.

        On December 6, 2016, Clark filed a motion to continue the last day to

plea. On December 9, 2016, the trial court entered the following order: “AND

NOW, this 9th Day of December, 2016, for reasons that became apparent at

today’s scheduled hearing on [Clark]’s Supplement to Pretrial Motion, a

continuation of this hearing shall be scheduled for February 7th, 2017 at

9:00 a.m.” Order, 12/9/2016. The order made no specific reference to the

last day to plea or to Clark’s motion to continue the last day to plea, but the

parties do not dispute that the last day to plea was continued to February 7,

2017.


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2  During the hearing on the Rule 600 motion, the office manager for the
McKean County District Attorney’s Office, Julie Comes, testified that, in
McKean County, a defendant is assigned a “last day to plea”; on that date,
the defendant must enter a guilty plea, list the case for trial, or request a
continuance. N.T., 11/6/2017, at 6-7. The last day to plea is assigned when
the preliminary hearing is held or waived. Id. at 7.




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       On February 7, 2017, the trial court granted Clark’s request for a bill of

particulars and scheduled a status conference for April 21, 2017.3 Nothing in

the record indicates that, on February 7, 2017, Clark entered a plea, the

Commonwealth listed the case for trial, or either party requested a

continuance of the last day to plea.

       On February 17, 2017, the Commonwealth answered Clark’s request for

a bill of particulars. In March 2017, Clark filed a motion to compel further

particulars, which the trial court granted.

       On May 16, 2017, by . . . order [of the trial court, Clark]’s Last
       Day to Plea was scheduled for June 29, 2017, at which time a Not
       Guilty Plea was entered of record. The Commonwealth took no
       further action until September 25, 2017, at which time the case
       was listed for trial for November 13 & 14, 2017.

Trial Court Opinion, 11/6/2017, at 2.

       On October 20, 2017, Clark filed a motion to dismiss with prejudice,

asserting that the Commonwealth had violated Pa.R.Crim.P. 600(A), requiring

the Commonwealth to bring a defendant to trial within 365 days of the filing

of the criminal complaint. On November 6, 2017, the Commonwealth filed an

answer to Clark’s motion, and the trial court held a Rule 600 hearing. At the

hearing, the office manager for the District Attorney’s Office, Julie Comes,

testified that, in McKean County, the Commonwealth retains sole discretion as




____________________________________________


3   The record is unclear as to whether the status conference occurred.



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to when cases are listed for trial. N.T., 11/6/2017, at 14. She also testified

about various trial dates. Id. at 13-16.4

       During the hearing, defense counsel presented an order dated

December 28, 1999, from the then-president judge of McKean County,

promulgating that the district attorney is given exclusive control over what

cases are scheduled for the available trial dates in a given year.      Order,

12/28/1999, at ¶ 3.5

       Immediately following the hearing, the trial court entered an order

dismissing the charges against Clark. This appeal followed.6

       The Commonwealth raises the following question on appeal:

       Whether the [t]rial [c]ourt erred and misapplied the law where it
       granted [Clark]’s Motion to Dismiss Pursuant to Pa. R. Crim. P.
       600?

Commonwealth’s Brief at 2.

       In evaluating Rule 600 issues, our standard of review of a trial
       court’s decision is whether the trial court abused its discretion.
____________________________________________


4  Ms. Comes testified that, from January 2016 until November 6, 2017, 83
jury trial dates were available to the Commonwealth, of which 33 went unused
by the Commonwealth for any matter. N.T., 11/6/2017, at 14-15.
5  The order of December 28, 1999, also decreed that only three days per
month were to be reserved by the court administrator for criminal trials and
that all criminal trials must be scheduled at least 30 days in advance. Order,
12/28/1999, at ¶¶ 1, 3.
6 On November 25, 2017, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b) within 21 days of the date of the order. On December 5, 2017, the
Commonwealth complied. On January 23, 2018, the trial court entered an
order that the memorandum opinion that accompanied its order of
November 6, 2017, would serve as its opinion pursuant to Pa.R.A.P. 1925(a).

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     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.

     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. Hunt, 858 A.2d 1234, 1238–1239 (Pa. Super. 2004) (en

banc) (internal brackets, citations, ellipses, and quotation marks omitted;

some formatting).

     Rule 600 provides, in pertinent part:

     (A) Commencement of Trial; Time for Trial . . .

        (2) Trial shall commence within the following time periods.


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            (a) 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.

            ...

      (C) Computation of Time

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

         ...

         (3)(a) When a judge or issuing authority grants or denies a
         continuance:

            (i) the issuing authority shall record the identity of the
            party requesting the continuance and the reasons for
            granting or denying the continuance; and

            (ii) the judge shall record the identity of the party
            requesting the continuance and the reasons for
            granting or denying the continuance. The judge also
            shall record to which party the period of delay caused
            by the continuance shall be attributed, and whether
            the time will be included in or excluded from the
            computation of the time within which trial must
            commence in accordance with this rule.

            Comment: . . . 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.

Pa.R.Crim.P. 600(A)(2)(a), (C)(1), (C)(3)(a)(i)-(ii) & cmt.

      Rule 600 requires the Commonwealth to try a defendant within
      365 days of the filing of a criminal complaint. A defendant,
      however, is not automatically entitled to discharge under Rule 600


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      where trial starts more than 365 days after the filing of the
      complaint. Rather, Rule 600 provides for dismissal of charges only
      in cases in which the defendant has not been brought to trial
      within the term of the adjusted run date, after subtracting all
      excludable and excusable time.       The adjusted run date is
      calculated by adding to the mechanical run date, i.e., the date 365
      days from the complaint, both excludable and excusable delay.

      Excludable time includes delay caused by the defendant or his
      lawyer. Concomitantly, excusable delay occurs where the delay
      is caused by circumstances beyond the Commonwealth’s control
      and despite its due diligence. 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.

Commonwealth v. Roles, 116 A.3d 122, 124–125 (Pa. Super. 2015)

(internal   citations,   footnote,   and   quotation   marks   omitted).     “The

Commonwealth bears the burden of proving due diligence by a preponderance

of the evidence.” Commonwealth v. Burno, 154 A.3d 764, 794 (Pa. 2017).

When a “representative of the Commonwealth is responsible for scheduling

cases,” “faithful compliance with the legal forms of proof” is required, including

a detailed inquiry “into the Commonwealth’s assertions of necessary delay,”

supported by “trial schedules and justifications.” Commonwealth v. Bond,

532 A.2d 339, 343 (Pa. 1987) (plurality opinion).

      Here, the total number of calendar days that elapsed from the filing of

the criminal complaint on October 4, 2015, to the day Clark’s trial was

scheduled to commence on November 13, 2017, was 771 days.

      However, certain periods also may be excluded from the calculation.

Pa.R.Crim.P. 600(C)(1). Thus, the inquiry for a court determining whether


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there is a violation of the time periods in Pa.R.Crim.P. 600(A) is whether the

delay was caused solely by the Commonwealth when the Commonwealth has

failed to exercise due diligence. See, e.g., Commonwealth v. Matis, 710

A.2d 12, 16 (Pa. 1998); Roles, 116 A.3d at 125.

        The Commonwealth and the trial court both agree that the following

time periods were excludable:

       October 15, 2015, to October 21, 2015 (six days);

       November 4, 2015, to November 18, 2015 (14 days);

       January 28, 2016, to July 21, 20167 (175 days); and

       October 28, 2016, to December 9, 2016 (42 days).

Answer to Clark’s Mot. to Dismiss Pursuant to Rule 600, 11/6/2017, at ¶ 8.C.,

8.E.-8.J., 8.L.; Trial Court Opinion, 11/6/2017, at 1. Thus, the Commonwealth

and the trial court concur that 237 days were excludable; these 237 days

subtracted from the 771 days between the filing of the complaint and the

scheduled trial date results in a total time of 534 days, which is greater than

the 365 days allowed by Pa.R.Crim.P. 600(A).            In other words, the

Commonwealth and the trial court do not dispute that the mechanical run date




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7 The Commonwealth admits that “there was a lull in the case … after the July
21, 2016 Last Day to Plea hearing.” Commonwealth’s Brief at 18.




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of October 3, 2016, is properly adjusted by 237 days, resulting in an adjusted

run date of May 30, 2017.8

       The Commonwealth argues that an additional 60 days were excludable.

Specifically, it contends that the 60 days between December 9, 2016, and

February 7, 2017, were also excludable, because Clark requested that

continuance.      Answer to Clark’s Mot. to Dismiss Pursuant to Rule 600,

11/6/2017, at ¶ 8.M.; Commonwealth’s Brief at 17; see also Mot. to Continue

Last Day to Plea, 12/6/2016. As this time was attributable to Clark, we agree

with the Commonwealth that these 60 days are also excludable. Roles, 116

A.3d at 125. Nonetheless, the total adjusted time would still be 474 days,

which is more than the permissible 365 days, Pa.R.Crim.P. 600(A); the

adjusted run date is July 27, 2017.

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8 Two hundred thirty-seven days after October 3, 2016, is Sunday, May 28,
2017; the next day, Monday, May 29, 2017, was Memorial Day. Accordingly,
the next business day was Tuesday, May 30, 2017.

       It is settled that “[w]henever the last day of any such period (of
       time referred to in a statute) shall fall on a Saturday or Sunday,
       or on any day made a legal holiday by the laws of this
       Commonwealth or of the United States, such day shall be omitted
       from the computation.” 1 Pa.C.S. § 1908. See Pa.R.Crim.P. 600,
       cmt. (“When calculating the number of days set forth herein, see
       the Statutory Construction Act, 1 Pa.C.S. § 1908.”) See also
       Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220, 1221–
       1222 (1982) (applying Section 1908 of the Statutory Construction
       Act to prompt trial calculation).

Commonwealth v. McCarthy, 180 A.3d 368, 376 (Pa. Super. 2018)
(footnote omitted), reargument denied (Apr. 4, 2018).



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       The Commonwealth further contends that there were 142 days of

excusable delay.9 Answer to Clark’s Mot. to Dismiss Pursuant to Rule 600,

11/6/2017, at ¶ 8.Q.; Commonwealth’s Brief at 17.              According to the

Commonwealth, these 142 days occurred between the hearing on February 7,

2017, and when Clark’s last day to plea was rescheduled for June 29, 2017.

Answer to Clark’s Mot. to Dismiss Pursuant to Rule 600, 11/6/2017, at ¶ 8.Q.;

Commonwealth’s Brief at 17. It argued that it “could not schedule the case

for trial after the [trial c]ourt ordered that it be taken off the trial list while

[Clark]’s Last Day to Plea was pending.” Id. at ¶ 8.N.1. It continued:

       Other hearings were held while the Last Day to Plea was pending;

          a) On February 7, 2017, status conference was scheduled
          for April 21, 2017 – [Clark]’s Last Day to Plea was still
          pending;

          b) The [trial c]ourt scheduled hearing on [Clark]’s Motion to
          Dismiss and Commonwealth’s Motion to Amend for May 16,
          2017 – [Clark]’s Last Day to Plea was still pending;

          c) On May 16, 2017, [Clark]’s Last Day to Plea was
          scheduled for June 29, 2017[.]

Id. at ¶ 8.N.2 (citations to the record omitted). If these 142 days could be

subtracted from the 474 days, then the resultant total “run time” would be




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9  The trial court made no mention of excusable delay.           See Trial Court
Opinion, 11/6/2017, at 2.



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332 days – i.e., less than the 365 days permitted by Pa.R.Crim.P. 600(A), and

the adjusted run date would be December 18, 2017.10

       However, the Commonwealth presents no case law – and we find no

precedent -- to support its theory that these 142 days were excusable. The

district attorney’s office controlled the scheduling of trials, N.T., 11/6/2017,

at 14; Order, 12/28/1999, at ¶ 3, and Ms. Comes testified that there were 33

unused trial dates between January 2016 and November 6, 2017.              N.T.

11/6/2017, at 14-15.           If there were an explanation as to why the

Commonwealth did not ask the trial court to place this case back on the trial

list, it was the Commonwealth’s responsibility to present such evidence and

appropriate argument, as it “bears the burden of proving due diligence by a

preponderance of the evidence.” Burno, 154 A.3d at 794; see also Bond,

532 A.2d at 343.11

       We therefore fail to see how the Commonwealth put forth a “reasonable

effort” and engaged in due diligence between February 7, 2017, and June 29,


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10 365 days + 237 days + 60 days + 142 days = 804 days. Eight hundred
four days after October 4, 2015, is Saturday, December 16, 2017. The next
business day is Monday, December 18, 2017. See McCarthy, 180 A.3d at
376.
11 Moreover, the additional hearings and pleadings between February 7, 2017,
and June 29, 2017, should have served as a reminder to the Commonwealth
that this case was pending and prompted it take action, instead of functioning
as an excuse for inertia. See Answer to Clark’s Mot. to Dismiss Pursuant to
Rule 600, 11/6/2017, at ¶ 8.N.2.



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2017, and how this delay was “beyond the Commonwealth’s control[.]”

Roles, 116 A.3d at 125; see also Pa.R.Crim.P. 600(C)(1). Accordingly, we

agree with the trial court that these 142 days do not constitute excusable

delay. “By the fact that Commonwealth did not contact the [trial c]ourt on

December 9, 201[6], to request that the Last Day to Plea be scheduled, the

Commonwealth did not act with due diligence.” See Trial Court Opinion,

11/6/2017, at 2.12

       Finally, the Commonwealth contends that the period from when this

case was listed for trial until the scheduled start date – September 25, 2017,

to November 13, 2017 – should not be included in the total calculation of time,

because the very act of listing a case for trial “show[s] that the Commonwealth

did act with due diligence.” Commonwealth’s Brief at 19. The Commonwealth

notes that “[t]his Court has found ‘due diligence’ by the Commonwealth where

the Commonwealth has listed the case for trial prior to the run date[.]” Id.

at 11 (citing Hunt, 858 A.2d at 1242).

       However, we do not need to reach the question of whether this time

should have been considered towards the adjusted run date, because, even if

these 49 days were subtracted from the 474 days, the total time (425 days)


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12 There is no suggestion of judicial delay, such as a congested court docket.
See McCarthy, 180 A.3d at 376 (delay that resulted from unavailability of
time on trial court’s calendar was excludable from calculation under rule
governing right to prompt trial); Commonwealth v. Frye, 909 A.2d 853, 859
(Pa. Super. 2006) (“In conducting the due diligence inquiry, our jurisprudence
has excused such delay resulting from court congestion.”).

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was still greater than 365 days. Phrased differently, 49 days added to the

previously calculated adjusted run date results in a final adjusted run date of

September 14, 2017.           The Commonwealth did not list this action until

September 25, 2017, and the trial was not scheduled to begin until November

13, 2017. Both these dates are beyond the adjusted run date.13

       Accordingly, we conclude that the trial court did not abuse its discretion

in finding a violation of Rule 600 occurred. In doing so, we acknowledge the

need to protect society through the effective prosecution of criminal cases, we

also must balance the protection of the accused’s speedy trial rights. See

Hunt, 858 A.2d at 1239. Here, we agree with the trial court that, while some

of the delay was through no fault of the Commonwealth, the Commonwealth’s

inaction resulted in a violation of Rule 600. See id. We cannot conclude that

the trial court has overridden or misapplied the law or exercised manifestly

unreasonable judgment and affirm its order dismissing the charges against

Clark. See Pa.R.Crim.P. 600(A); Hunt, 858 A.2d at 1239.

       Order affirmed.




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13 Although our calculation of “total run time” an adjusted run date is different
than the trial court’s computation, Trial Court Opinion, 11/6/2017, at 2, “we
may affirm for reasons other than those given by the trial court.” McCarthy,
180 A.3d at 376 n.8 (citation omitted).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2018




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