J-S43001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALBERT FRASCHETTI                          :
                                               :
                       Appellant               :   No. 1950 MDA 2018

         Appeal from the Judgment of Sentence Entered June 22, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0007677-2016


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:

                                                    FILED:FEBRUARY 7, 2020

        The Majority concludes Appellant’s right to a speedy trial was violated

under Pennsylvania Rule of Criminal Procedure 600, and thus, vacates

Appellant’s conviction and judgment of sentence.          While Appellant’s trial

commenced beyond November 7, 2017, which was the undisputed mechanical

run date for Rule 600 purposes,1 when the appropriate periods of excludable

and excusable time are considered, Appellant was brought to trial within the

mandates of Rule 600. Accordingly, as the Commonwealth did not violate

Pa.R.Crim.P. 600, I respectfully dissent.


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   See Pa.R.Crim.P. 600(A)(1), (2)(a).
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     Pertaining to the computation of time, the legal precepts pertaining to

Rule 600 are well-established.

     [T]he 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.

Commonwealth v. Holt, 175 A.3d 1014, 1019 (Pa.Super. 2017) (citation

omitted).

     Further:

     [W]hen considering the trial court’s ruling [under Rule 600], 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


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      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. Bethea, 185 A.3d 364, 370 (Pa.Super. 2018) (quotation

omitted). See Commonwealth v. Carter, 204 A.3d 945, 947-48 (Pa.Super.

2019) (holding delay occurring as the result of circumstances beyond the

Commonwealth’s control and despite its due diligence is excusable and

extends the run date).

      Initially, contrary to the Majority, I agree with the trial court that the

entire period from February 6, 2017, through May 8, 2017, is excludable time.

The record reflects that, during the February 6, 2017, pre-trial conference,

defense counsel requested a continuance due to difficulties with contacting

Appellant’s character witnesses. N.T., 2/6/18, at 3. Appellant indicated he

was not prepared to go to trial and specifically requested the case be listed

for the May 2017 term. Id. at 2-3. Noting the request was attributed to the

defense, the trial court indicated “we schedule this case for trial during the

May 2017 term of Criminal Court beginning May 8, 2017[.]”        Id. at 3. See

Pa.R.Crim.P. 600 (C)(3) (pertaining to the trial court recording the identity of




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the party requesting a continuance, the reason, and to whom the period of

delay is attributed for Rule 600 purposes).

        Thereafter, at the Rule 600 hearing, the trial ruled that, since the case

was re-listed due to defense counsel’s request, the ninety-one days from

February 6, 2017, through May 8, 2017 (the first day of the May 2017 term)

is excludable time. N.T., 3/19/18, at 7 (trial court indicating that the “time

does go against [the defense] from the date that [the defense] requested that

the case be listed for a trial term other than the next available trial term. The

time runs against the Defendant from the pre-trial conference to the first day

of the trial term that the Defendant requested.”). There is no error in the trial

court’s analysis, and therefore, I find this entire time period to be excludable.

See Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004) (en

banc) (holding court must exclude the time attributed to a defense

continuance for purposes of Rule 600).2

        Thereafter, as the Majority admits, the Commonwealth listed Appellant’s

case for trial and kept an adequate record thereof. Specifically, Appellant’s

case was listed by the Commonwealth on the 2017 lists for July, September,

and November, as well as the 2018 lists for January and March.3 However,

due to the volume of court cases, as well as limited courtroom availability,


____________________________________________


2 In consideration of the ninety-one days associated with the defense
continuance, the adjusted run date became February 6, 2018.

3   It appears York County holds criminal cases every other month.

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Appellant’s trial was not scheduled by court administration until March 19,

2018.

        “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 where the Commonwealth is prepared to commence trial prior to the

expiration of the mandatory period but the court[,] because of scheduling

difficulties or the like[,] is unavailable.” Commonwealth v. Malgieri, 889

A.2d 604, 607-08 (Pa.Super. 2005) (citation omitted). That is precisely what

occurred in this case.

        As indicated supra, “[d]ue diligence does not require perfect vigilance

and punctilious care, but rather a showing by the Commonwealth that a

reasonable effort has been put forth.” Holt, 175 A.3d at 1019. There is no

evidence of misconduct on the part of the Commonwealth in an effort to evade

the speedy trial rights of Appellant.    Simply put, Appellant should not be

“insulated” from good faith prosecution because of court congestion and

limited courtroom availability. As such, as the trial court determined, the

Commonwealth met its burden of proving it acted with due diligence in

bringing Appellant to trial, and consequently, I would find Appellant’s Rule 600

issue to be meritless. Thus, I respectfully dissent.




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