J-S18008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES J. FOOTMAN,

                            Appellant               No. 2799 EDA 2013


        Appeal from the Judgment of Sentence Entered July 15, 2013
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003506-2012


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 27, 2015

       Appellant, James J. Footman, appeals nunc pro tunc from the July 15,

2013 judgment of sentence of an aggregate term of 4 to 10 years’

incarceration, followed by four years’ probation, imposed after he was

convicted of robbery, receiving stolen property (RSP), and theft by unlawful

taking. Appellant argues that the trial court abused its discretion by denying

his pretrial motion to dismiss the charges against him based on a violation of

Pa.R.Crim.P. 600. We affirm.

       Appellant was arrested and charged with the above-stated offenses

based on a robbery that occurred on October 8, 2011.1 On March 18, 2013,

Appellant filed a motion to dismiss his case based on a violation of Rule 600.
____________________________________________


1
 The facts of this case are not pertinent to the issue raised by Appellant on
appeal.
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On May 16, 2013, the trial court held a hearing on that motion and then

denied it. Appellant’s case immediately proceeded to a non-jury trial, at the

conclusion of which the court convicted Appellant of robbery, RSP, and theft.

Appellant was subsequently sentenced to the aggregate term set forth

above.   He filed a timely post-sentence motion for reconsideration of his

sentence, which the court denied. Appellant did not file a notice of appeal.

      However, on September 6, 2013, Appellant filed a petition under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the

restoration of his direct appeal rights.   On September 30, 2013, the PCRA

court granted Appellant’s petition and he filed a nunc pro tunc notice of

appeal on October 1, 2013.     He also timely complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal. Herein, Appellant raises one issue for our review: “Did not the

lower court err in denying [Appellant’s] motion to dismiss pursuant to [Rule]

600 where [Appellant] was tried after the run[]date and the Commonwealth

did not exercise due diligence throughout the case, and the court deemed

the delay ‘de minimis[,’] even though Rule 600 does not contain a ‘de

minimis’ exception?” Appellant’s Brief at 3.

      We begin by noting that “[o]ur standard and scope of review in

analyzing a Rule 600 issue are both well-settled.”        Commonwealth v.

Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en banc).

            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

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       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. Ramos, 936 A.2d 1097, 1100 (Pa. Super.
     2007) (en banc) (quoting Commonwealth v. Hunt, 858 A.2d
     1234, 1238 (Pa. Super. 2004) (en banc)).




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       Rule 600(A)(2) states that when a complaint is filed against a
       defendant who is incarcerated, trial must begin 180 days from
       the date on which the complaint was filed.[2] Similarly, Rule
       600(A)(3) requires that trial commence for a defendant at liberty
       on bail within 365 days of the filing of the written complaint. The
       rule further provides that certain periods are excluded from Rule
       600 calculation. Specifically, the rule delineates in pertinent
       part:

          (C) In determining the period for commencement of trial,
          there shall be excluded therefrom:

              (1) the period of time between the filing of the
              written complaint and the defendant's arrest,
              provided that the defendant could not be
              apprehended because his or her whereabouts were
              unknown and could not be determined by due
              diligence;

              (2) any period of time for which the defendant
              expressly waives Rule 600;

              (3) such period of delay at any stage of the
              proceedings as results from:

                 (a) the unavailability of the defendant or the
                 defendant's attorney;

                 (b) any continuance granted at the request of
                 the defendant or the defendant's attorney.

          Pa.R.Crim.P. 600(C).

Peterson, 19 A.3d at 1134-1135 (footnote omitted).

       This Court has also recently reiterated that:

            To determine whether dismissal is required under Rule
       600, a court must first calculate the “mechanical run date,”
____________________________________________


2
   We note that a new version of Rule 600 was adopted on October 1, 2012,
and became effective on July 1, 2013. As Appellant’s Rule 600 motion was
filed and decided before the effective date of the new version of the rule, we
will analyze his claim under the prior version of Rule 600.



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       which is 365 days after the complaint was filed. Rule 600(C)
       addresses situations where time can be excluded from the
       computation of the deadline. Case law also provides that a court
       must account for any “excludable time” and “excusable delay.”
       Excludable time is delay that is attributable to the defendant or
       his counsel. Excusable delay is delay that occurs as a result of
       circumstances beyond the Commonwealth's control and despite
       its due diligence.

              To be clear, a violation of Rule 600 does not automatically
       entitle a defendant to a discharge. Indeed, 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.” In
       other words, the only occasion requiring dismissal is when the
       Commonwealth fails to commence trial within 365 days of the
       filing of the written complaint, taking into account all excludable
       time and excusable delay. There is no statutory or case law
       authorizing the discharge of a defendant who has not been
       brought to trial within the timing requirements of Rule
       600(A)(2).

Commonwealth v. Goldman, 70 A.3d 874, 879-880 (Pa. Super. 2013).

       Here, Appellant adopts the statement of pertinent dates set forth by

the trial court in its opinion, which we need not reproduce for purposes of

this appeal.    See Trial Court Opinion (TCO), 7/16/14, at 1-2; Appellant’s

Brief at 11-12. Instead, we need only note that the parties, and the court,

agree that the Commonwealth was required to try Appellant within 365 days

of the October 13, 2011 filing of the criminal complaint.       Therefore, the

‘mechanical run date’ was October 12, 2012.3 Appellant concedes that there

____________________________________________


3
 Appellant incorrectly concludes that the mechanical run date was October
13, 2012. However, we agree with the trial court and Commonwealth that
adding 365 days to October 13, 2011, results in a mechanical run date of
October 12, 2012. See TCO at 4; Commonwealth’s Brief at 10.



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were 207 days of ‘excludable time’ for Rule 600 purposes. Appellant’s Brief

at 13-14. Thus, according to Appellant’s calculations, the adjusted run date

was May 7, 2013, making his trial on May 16, 2013, “[nine] days late.” Id.

at 14. Consequently, Appellant claims that Rule 600 was violated and the

court should have granted his pretrial motion to dismiss the charges against

him.

         The trial court, however, concluded that there was no violation of Rule

600.           By     the     court’s    calculations,   there   were   286   days    of

excludable/excusable time, making the adjusted run date July 25, 2013.

See TCO at 4. In reaching this decision, the trial court excluded, inter alia,

the time between September 24, 2012 and November 5, 2012. The court

explained that on September 24, 2012, trial was scheduled to begin and

both parties were prepared to proceed, “but the court was conducting

unrelated trials.”          Id.    Accordingly, Appellant’s trial was rescheduled for

November 5, 2012. The court reasoned that this “judicial delay” should not

be charged to the Commonwealth for Rule 600 purposes. Id.

         In response, Appellant argues that the delay from September 24,

2012, to November 5, 2012, was not excusable because the Commonwealth

failed    to    act    with       due   diligence.   Appellant   emphasizes   that   the

Commonwealth did not “attempt to get the case re-listed to another

courtroom[,] attempt to get an earlier date[,] or make sure that the date

that was given was the earliest possible date….” Appellant’s Brief at 15. In

other words, Appellant argues that the Commonwealth was required to

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attempt to have the trial proceed before another judge, and its failure to do

so amounted to a lack of due diligence.               In support, Appellant relies on

Commonwealth v. Hawk, 597 A.2d 1141 (Pa. 1991), which he interprets

as holding that the Commonwealth must take “affirmative steps to bring a

case to trial[,]” such as looking for another courtroom in which to try the

case if the assigned judge is unavailable. Appellant’s Brief at 17.

       Appellant’s reliance on Hawk is unconvincing. Indeed, this Court has

explicitly stated that Hawk is “not clear” regarding “[t]he extent to which

the   Commonwealth          must     look      for   other   available   courtrooms….”

Commonwealth v. Anderson, 959 A.2d 1248, 1250 (Pa. Super. 2008). In

Anderson, we noted that in Commonwealth v. Smith, 569 A.2d 337 (Pa.

1990), “our Supreme Court found no duty for the Commonwealth to seek an

alternative court” when trial was delayed because of “congestion in the trial

judge’s calendar.”      Anderson, 959 A.2d at 1250. We also emphasized in

Anderson that “Hawk did not claim to overrule Smith, merely distinguish

it.” Id. Therefore, it is not clear that Hawk imposes the affirmative duty on

the Commonwealth to seek out another courtroom, as Appellant claims.4
____________________________________________


4
  Moreover, we agree with the Commonwealth that the facts of Hawk are
distinguishable from the present case. As the Commonwealth explains, in
Hawk,

       the trial judge was sick for a month and then went on vacation
       for five weeks after recuperating from the illness. During this
       prolonged absence, the Commonwealth took no action to have
       the case listed for trial before another judge. Under those
(Footnote Continued Next Page)


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      What is clear is that this Court has repeatedly cited Hawk for the

proposition that “the Commonwealth should be held to the requirement that

it exercise due diligence at all times during the pendency of a case.”

Commonwealth v. Kearse, 890 A.2d 388, 393 (Pa. Super. 2005) (quoting

Hawk, 597 A.2d at 1145).5


                       _______________________
(Footnote Continued)

      unique and extreme circumstances, the Supreme Court rejected
      the Commonwealth’s attempt to justify the delay based upon the
      trial judge’s crowded docket. The Court observed that “[e]ven if
      the Commonwealth was found to be duly diligent, the
      Commonwealth failed to prove judicial delay.” Hawk, … 597
      A.2d at 1145. Thus, the Court in Hawk suggested only that the
      Commonwealth would have some duty to attempt to schedule a
      case before a different judge when the assigned judge is
      unavailable for a lengthy period of time for reasons unrelated to
      a crowded docket, such as illness. Hawk simply did not hold
      that reassignment to another judge is mandated whenever,
      because of a crowded docket, a case cannot be heard within the
      time required by Rule 600. In contrast to Hawk, the delay
      which [Appellant] contends violated Rule 600 here was due to
      the court’s congested docket…, and not an absence of the
      assigned judge because of illness or vacation.

Commonwealth’s Brief at 19-20 (emphasis in original; one internal citation
omitted).
5
   See also Commonwealth v. Claffey, 80 A.3d 780, 786 (Pa. Super.
2013) (citing Hawk in stating that “[t]he Commonwealth’s duty to be
diligent exists throughout all stages of a case”); Commonwealth v.
Bradford, 2 A.3d 628, 632 (Pa. Super. 2010) (relying on Hawk in stating
that “the Commonwealth’s duty to be diligent exists throughout all stages of
a case”); Commonwealth v. Preston, 904 A.2d 1, 13 n.5 (Pa. Super.
2006) (stating that in Hawk, “our Supreme Court ruled that the
Commonwealth must demonstrate that it exercised due diligence at all times
during the pendency of a case”).



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     “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.”
     Due diligence includes, among other things, listing a case for
     trial prior to the run date, preparedness for trial within the run
     date, and keeping adequate records to ensure compliance with
     Rule 600.

Ramos, 936 A.2d at 1102 (citations omitted; emphasis in original).

Moreover, “[i]t is long-established that judicial delay may serve as a basis

for extending the period of time within which the Commonwealth may

commence trial so long as the prosecutor was prepared to commence trial

prior to the expiration of the mandatory period but the court, because of

scheduling difficulties or ‘the like,’ was unavailable.” Preston, 904 A.2d at

14 (citing Commonwealth v. Malgieri, 889 A.2d 604, 607 (Pa. Super.

2005)).

     In this case, it is undisputed that the Commonwealth was prepared to

proceed to trial on September 24, 2012, prior to the expiration of the

mechanical run date on October 12, 2012. The trial did not commence due

to a court scheduling conflict, and through no fault of the Commonwealth.

Under these circumstances, we ascertain no abuse of discretion in the trial

court’s considering as ‘excusable’ the 42-day delay between September 24,

2012, and November 5, 2012. Accordingly, adding these 42 days to the 207

excludable days conceded by Appellant results in an adjusted run date of

June 18, 2013, making Appellant’s trial on May 16, 2013, within the time-

frame proscribed by Rule 600.      We also point out that on seven other



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scheduled trial dates after September 24, 2012, the Commonwealth was

ready to proceed but the case was continued at either Appellant’s request or

because the court was presiding in another case. See Appellant’s Brief at

11-12; TCO at 1-2.        This record convinces us that the Commonwealth

exercised due diligence at all times during the pendency of Appellant’s case.

Hawk, 597 A.2d at 1145.         Therefore, the trial court did not abuse its

discretion in denying Appellant’s motion to dismiss.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2015




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