                                [J-47-2017] [MO: Saylor, C.J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                       EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                       :   No. 27 EAP 2016

                       Appellee                     :   Appeal from the Judgment of Superior
                                                    :   Court entered on January 8, 2016 at No.
                                                    :   929 EDA 2014 (reargument denied
                v.                                  :   February 26, 2016), reversing and
                                                    :   remanding the February 28, 2014 Order
                                                    :   of the Court of Common Pleas,
LEON MILLS,                                         :   Philadelphia County, Criminal Division
                                                    :   at Nos. CP-51-CR-0007377-2011 and
                       Appellant                    :   CP-51-CR-0007379-2011.

                                                    :   ARGUED: May 10, 2017


                                    CONCURRING OPINION


JUSTICE WECHT                                                        DECIDED: June 20, 2017
       I   join the learned Majority in full.   I   write separately to address the concept of

"judicial delay," and to emphasize my view of the correct role that "judicial delay" serves

in a Rule 600    analysis.'

       The Majority notes that, pursuant to this Court's precedents, including our

decision in Commonwealth       v.   Bradford, 46 A.3d 693, 705 (Pa. 2012), "periods of judicial

delay are excludable from calculations" under Rule 600.              See Maj. Op. at 4.    The

Majority then explains that trial courts must apply "judgment in distinguishing between

delay attributable to the court and that which should be allocated to a party." Id. Finally,

the Majority astutely observes that trial courts have the discretion to differentiate

between the time that passes during the normal progress of a criminal case and the


       Pa.R.Crim.P. 600.
time that elapses when the court's calendar simply cannot accommodate a trial by the

relevant date.    My concern is that our trial courts too often make these judgments

without first considering the Commonwealth's due diligence obligation.

       Characterization and delineation of the contested time periods is not always an

easy task. Difficulty can arise, as it did in this case, when both "judicial delay" and the

Commonwealth's due diligence obligation appear as options for the court.                 However,

these two options are not equal, to be selected at the court's discretion.                Nor can

"judicial delay" be substituted for due diligence. Rather, due diligence must be proven

by the Commonwealth, and assessed by the court, before "judicial delay" becomes a

consideration in the time calculation for Rule 600.

       The Commonwealth bears the burden of proving that it acted with due diligence,

see Commonwealth      v.   Browne, 584 A.2d 902, 908 (Pa. 1990), and the duty so to act

extends to all stages of a criminal case. See Commonwealth             v.   Burno, 154 A.3d 764,

794 (Pa. 2017); Commonwealth       v.   Hawk, 597 A.2d 1141, 1145 (Pa. 1991). Subsection

(C)(1) of the Rule provides the computational methodology that courts must utilize to

determine whether there was a violation of the defendant's speedy trial right.                That

subsection states that "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 time within which trial must commence.                    Any other

periods of delay shall be excluded from computation."          Pa.R.Crim.P. 600(C)(1). This

subsection unfortunately is not a model of clarity, as is evidenced by the reasonable

debate over the meaning of the term "delay" offered by the parties' briefs          in   this case.

Nonetheless, a linear reading of the provisions requires courts first to consider the

Commonwealth's role in causing the delay at issue. Only if the Commonwealth has




                              [J-47-2017] [MO: Saylor, C.J.]   -   2
discharged its duties with due diligence should a court consider other causes for the

delay.

         Rule 600's comment supports this order of inquiry, noting that Subsection (C)(1)

"makes it clear that any delay in the commencement of the trial that is not attributable to

the Commonwealth when the Commonwealth has acted with due diligence must be

excluded     from   the computation     of          time."   Id.   Cmt.      Stated   differently,    the

Commonwealth's demonstration that              it    acted with due diligence at all times is a

prerequisite to considering whether the delay was caused by a court's calendar, or by

some other form of "judicial delay."    "When a case has possible Rule [600] problems,

prosecutors must do everything reasonable within their power to see that the case is

tried on time." Commonwealth       v.   Smith, 383 A.2d 1280, 1282 (Pa. 1978).                       At a

minimum, this well -settled precept requires that, when faced with a court seeking to set

a trial date beyond the Rule 600 deadline, the Commonwealth must demonstrate that it

has acted with due diligence        and        must inform the court that the date being

contemplated would violate the Rule.

         "Judicial delay" is not a mechanism or totem that exempts the Commonwealth

from its obligations under the Rule.      It        may be invoked only after the Commonwealth

has demonstrated that it is ready, able, and willing to proceed with the case against the

defendant.    Otherwise, the due diligence component of Rule 600 would have little, if

any, meaningful import.

         Our recent decision in Bradford is instructive.2            The Commonwealth charged

Bradford with rape and related offenses, and established a prima facie case for those

2
       Due to the anomalous circumstances in Bradford, it seems unlikely that a case
with a similar fact pattern would appear before this Court. After Bradford, it can be
hoped that Pennsylvania prosecutors no longer rely exclusively upon court systems to
advance cases through the criminal justice process, without any internal tracking
system.
(continued...)

                             [J-47-2017] [MO: Saylor, C.J.]          -   3
crimes at a preliminary hearing. At that point, the Commonwealth turned over all of its

materials to the magisterial district judge ("MDJ"), and kept no other records of the

existence of the case. The paperwork got lost, and Bradford remained in jail for over

one year without a formal arraignment. The case stood still due to the lost paperwork.

       The facts of Bradford are undoubtedly distinctive.            It is   rare indeed when a

defendant's case comes to a complete halt without anyone from the prosecutor's office

noticing, particularly when the charges are so severe.                 The peculiarity of the

circumstances notwithstanding, this Court engaged in a rather straightforward Rule 600

analysis.   As the Majority notes, we recognized "judicial delay" as a concept, and

ultimately determined that the delay in Bradford's case was attributable to the judiciary,

not to the Commonwealth. Bradford, 46 A.3d at 702-05. However, we did so only after

finding that the Commonwealth had exercised due diligence by relying upon the MDJ's

office to advance the case. Id.

       The paradigm is consistent under both the terms of the Rule and our Rule 600

jurisprudence.    "Judicial delay" is not assessed simultaneously with due diligence.

"Judicial delay" becomes relevant only after the Commonwealth                    has proven its

compliance with the due diligence mandate. As the Majority concludes, the Superior

Court altered this paradigm. Because the Superior Court's ruling was inconsistent with

our Rules and precedents, it must be reversed.

       Justice Todd and Justice Donohue join this concurring opinion.




(... continued)
       Nonetheless, if presented with an appropriate record and opportunity, would      I


reconsider Bradford's due diligence analysis. Under the circumstances of that case,           I



align more with the discussion offered there by Chief Justice Saylor in his learned
dissent. Regardless, the propriety of Bradford is not presently before this Court.




                            [J-47-2017] [MO: Saylor, C.J.]   -   4
