                                  [J-22-2018]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


    COMMONWEALTH OF PENNSYLVANIA,               :    No. 13 WAP 2017
                                                :
                      Appellee                  :    Appeal from the Order of the Superior
                                                :    Court entered July 22, 2016 at No.
                                                :    260 WDA 2015, reversing the Order
               v.                               :    of the Court of Common Pleas of
                                                :    Washington County entered January
                                                :    20, 2015 at Nos. CP-63-CR-
    DAREL BARBOUR,                              :    00001701-2003 & CP-63-CR-
                                                :    00002018-2003.
                      Appellant                 :
                                                :    ARGUED: April 10, 2018


                                         OPINION


JUSTICE WECHT                                       DECIDED: JULY 18, 2018
        In Commonwealth v. Steltz, 560 A.2d 1390 (Pa. 1989), this Court held that a

criminal defendant’s failure to appear at a trial scheduled within the time period provided

by the speedy trial guarantee of the Pennsylvania Rules of Criminal Procedure1


1      See Pa.R.Crim.P. 600. Rule 600 formerly was numbered as Rule 1100, including
during the years in which this Court decided Steltz and several other cases discussed
herein. Rule 1100 was amended and renumbered as Rule 600 on April 1, 2001.
However, because much of the rule’s substance remained consistent throughout the
amendment, this Court has continued to apply our precedents interpreting former Rule
1100 to the analogous provisions of Rule 600, sometimes employing Rule 600
nomenclature to facilitate discussion of Rule 1100 precedents. See, e.g., Commonwealth
v. Sloan, 907 A.2d 460, 463 n.5 (Pa. 2006) (explaining that, because “the substance of
the sections of current Rule 600 and former Rule 1100 under scrutiny are identical,” the
Court would “for the sake of convenience and clarity . . . substitute the applicable
numbering nomenclature of Rule 600 for that of old Rule 1100”). Except where necessary
to avoid confusion, we continue this practice herein, and will refer to the rule-based right,
generally, as “Rule 600.”
constitutes a waiver of that defendant’s right to seek a remedy under that rule. Today,

we consider whether the Steltz waiver rule applies to a defendant who absented himself

from an untimely trial—one that violated Rule 600 before the defendant failed to appear.

The Superior Court determined that the Steltz rule applies without regard to the timeliness

of the trial, and accordingly reversed the order of the Washington County Court of

Common Pleas granting Darel Barbour relief under Rule 600. We conclude that the Steltz

rule is inapplicable. Consequently, we reverse the order of the Superior Court.

       By the terms of Rule 600, the Commonwealth must bring a defendant to trial within

365 days from the date upon which a written criminal complaint is filed. Pa.R.Crim.P.

600(A)(2)(a).   However, the Rule 600 run date may be adjusted pursuant to the

computational directives set forth in Subsection (C) of the Rule. For purposes of the Rule

600 computation, “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.” Id. 600(C)(1).

“Any other periods of delay,” including those caused by the defendant, “shall be excluded

from the computation.” Id. When considering a Rule 600 motion, the court must identify

each period of delay and attribute it to the responsible party, then adjust the 365-day tally

to arrive at the latest date upon which the Commonwealth may try the defendant. Absent

a demonstration of due diligence, establishing that the Commonwealth has done

“everything reasonable within its power to guarantee that [the] trial begins on time,”

Commonwealth v. Matis, 710 A.2d 12, 17 (Pa. 1998), the Commonwealth’s failure to bring

the defendant to trial before the expiration of the Rule 600 time period constitutes grounds

for dismissal of the charges with prejudice. See Pa.R.Crim.P. 600(D)(1).

       The particulars of the Rule 600 computation in the instant case are not in dispute.

Nonetheless, some factual background is required in order to provide context to the




                                      [J-22-2018] - 2
dispositive inquiry. Darel Barbour originally was scheduled for a trial on October 18, 2004,

on two consolidated criminal cases, which were commenced by criminal complaints filed

on August 4, 2003 and August 20, 2003, respectively. Barbour did not appear for his trial,

and, due to his absence, the trial court issued bench warrants for his arrest. Those

warrants remained outstanding for nearly a decade, until Barbour was arrested for an

unrelated criminal offense on September 8, 2014. Following that arrest, Barbour’s older

cases were scheduled for trial on October 20, 2014. However, on October 3, 2014,

Barbour moved to dismiss both cases under Rule 600, contending that his original trial

date of October 18, 2004—the date upon which he failed to appear—was scheduled in

violation of the rule.

       The trial court held a hearing on Barbour’s motion on December 29, 2014. In

support of its position that Barbour’s October 18, 2004, trial date complied with Rule 600,

the Commonwealth presented the testimony of Assistant District Attorney Josh Carroll,

who was the prosecutor assigned to Barbour’s cases. ADA Carroll explained that, in

2004, trial scheduling in Washington County was largely an informal process. Oftentimes,

ADA Carroll testified, defendants were provided no written notice of when their

appearance was required, and no formal court orders were prepared or placed on the

docket. Instead, defendants generally were given oral notice of court proceedings, and,

“[a]t that point, there would not have been any notices sent out or any [o]rders. It was

much more informal, just . . . here is the date, show up.” Notes of Testimony, Rule 600

Hearing (“N.T.”), 12/29/2014, at 15.

       Due to the informality of this process and the lack of detailed recordkeeping,

evidence of the procedural history of Barbour’s cases was sparse. The official docket

reflected the dates of Barbour’s preliminary hearings and arraignments, but offered little

insight into the purpose and outcome of several later proceedings. It was clear that,




                                       [J-22-2018] - 3
following a hearing on March 5, 2004, Barbour was granted a nominal bail and released

from pre-trial incarceration. Several months later, on September 14, 2004, the court

issued a bench warrant due to Barbour’s failure to appear for an unspecified proceeding.

However, because Barbour was not given sufficient notice that his appearance was

required, the court vacated that warrant three days later. The order vacating the bench

warrant stated that Barbour and his counsel were expected to be prepared to proceed to

trial during the October 2004 trial term. This was the first clear reference to a trial date in

the record.

       The period of time following Barbour’s nominal bail hearing was a subject of

contention at the December 2014 hearing. ADA Carroll testified that, following Barbour’s

release on bail in March 2004, he “would have” scheduled the cases for the next available

trial term, in April 2004. N.T., 12/29/2014, at 20. However, the official docket contained

no reference to any criminal proceeding scheduled during the month of April. The court

questioned ADA Carroll about the sequence of events in April:

       THE COURT: Can I interrupt for a second, before we get too far off here?
       You said it was initially called for trial in April; correct?

       [ADA Carroll]: Yes.

       THE COURT: Why didn’t you request a bench warrant when he didn’t show
       up in April?

       [ADA Carroll]: I don’t know that he didn’t show up in April.

       THE COURT: You don’t know what happened then?

       [ADA Carroll]: What would have happened, Your Honor, would have been,
       as indicated, we were set up to put this one on the trial list. In some cases,
       it was a notebook, like you have in front of you, that had cases written down
       on it that were just called for trial. There was no formal [o]rder.

       What would have transpired between April and September may have been
       — there may have been other trials or things that took precedence.



                                       [J-22-2018] - 4
       As I indicated, I know the senior judges were only, I think, only allowed,
       actually, by law to be here five or seven days a month. I think it was five.
       So, there was a very small window.

       THE COURT: So, you don’t really know what happened between April and
       September?

       [ADA Carroll]: No. I don’t recall.


N.T., 12/29/2014, at 23-24.       ADA Carroll also suggested that Barbour’s trial was

scheduled for September 2004, but conceded that “there is nothing in the docket” to

corroborate his assertion. Id. at 22.

       The trial court ultimately granted Barbour’s Rule 600 motion and dismissed both

cases with prejudice.     After accounting for the periods of delay excluded from the

computation, the court determined that the Rule 600 run dates for Barbour’s cases were

August 18, 2004, and September 1, 2004, respectively. Barbour’s trial date of October

18, 2004, indisputably lay beyond either of those dates. Although ADA Carroll asserted

that he scheduled Barbour’s trial sometime before October 18, 2004, the trial court

rejected this testimony, finding that “[t]here is absolutely nothing in the official docket that

would indicate a trial for either case was ever scheduled before that date.” Trial Ct. Op.,

4/2/2015, at 18. The court gave little weight to ADA Carroll’s suggestions that he “would

have” scheduled Barbour’s trial at some earlier date, explaining that, “[s]imply put, this

[c]ourt is not concerned with what ‘would’ have happened, or ‘may’ have happened; the

[c]ourt is only concerned with what did happen.” Id. (emphasis omitted).

       The court further concluded that the Commonwealth offered no justifiable excuse

for its failure to schedule Barbour’s trial in a timely manner, and, thus, failed to establish

that it acted with due diligence in attempting to bring Barbour to trial. There was no

evidence of administrative error or any other delay that was occasioned by some

circumstance beyond the Commonwealth’s control. “In this matter,” the court reasoned,




                                        [J-22-2018] - 5
“it is clear beyond a preponderance of the evidence that the Commonwealth’s outstanding

negligence in failing to account for the time that had passed since the filing of the criminal

complaints is the sole impetus behind the Rule 600 violations.” Id. at 20.

       Finally, the trial court considered the Commonwealth’s argument that to grant

Barbour relief under Rule 600 would be contrary to the “spirit of the law” and would

encourage “procedural gamesmanship” by unduly rewarding Barbour’s failure to appear.

Id. at 22-23. The court disagreed, reasoning that Barbour’s failure to appear at trial was

not the cause of the Rule 600 violations. The court explained that, “[b]ecause the Rule

600 violations . . . occurred before [Barbour] had absconded, the Commonwealth’s

argument regarding ‘procedural gamesmanship’ is totally misplaced.” Id. at 22. In the

trial court’s view, Barbour was deprived of a speedy trial not because of the nearly ten

years’ delay caused by his absence, but rather due to the Commonwealth’s earlier failure

to put forth a reasonable effort to bring the cases to trial within the limits of Rule 600. The

court concluded that, in light of the important rights at stake, and considering “the

inexcusable failure of the Commonwealth to keep track of the time that had elapsed in

these matters,” the court could not “ignore the fact that the Commonwealth waited over a

year, without any reasonable justification, to bring either of these cases to trial.” Id. at 23.

       The Commonwealth appealed to the Superior Court, which reversed the trial

court’s order and remanded Barbour’s cases for trial, albeit without a majority rationale

for doing so. See Commonwealth v. Barbour, 260 WDA 2015, 2016 WL 4920328 (Pa.

Super. July 22, 2016) (unpublished).2 The Superior Court’s lead memorandum did not

revisit the trial court’s Rule 600 computation, nor did it dispute the court’s conclusion that

2       The Superior Court announced its disposition in a memorandum authored by then-
Judge, now-Justice, Mundy. Judge Bowes authored a concurring memorandum, in which
she relied upon a distinct theory supporting the same outcome. Judge Jenkins concurred
in the result, but did not join either of her colleagues’ memoranda. For ease of discussion,
we will refer to then-Judge Mundy’s writing as the “lead memorandum.”


                                       [J-22-2018] - 6
Barbour’s October 18, 2004 trial date was untimely. Instead, the lead memorandum

concluded that, pursuant to this Court’s holding in Steltz, Barbour waived the protections

of Rule 600 by failing to appear on his original trial date. In Steltz, this Court held that

“[o]ne’s voluntary absence from a day set for trial within Rule [600] is a waiver of that

rule,” and that, once an absconding defendant is taken back into custody, the trial shall

take place “at the reasonable convenience of the court and the prosecuting authorities.”

Steltz, 560 A.2d at 1391. The Superior Court’s lead memorandum noted that this Court

again had relied upon the Steltz waiver rule in Commonwealth v. Brock, 61 A.3d 1015

(Pa. 2013).

       The lead memorandum acknowledged that “in Steltz and Brock the defendants

absconded before the Commonwealth’s Rule 600 time had expired.” Barbour, slip op. at

10. The lead memorandum recognized that Barbour’s circumstance was distinguishable,

in that the trial court concluded that the Commonwealth violated Rule 600 before he failed

to appear for trial. Nevertheless, the lead memorandum reasoned that a court could not

condone Barbour’s absconsion by “permitting a defendant to file a motion to dismiss

under Rule 600 after returning from ten years as a fugitive.” Id. at 9. Noting that it was

uncontested that Barbour’s cases were called for trial on October 18, 2004, and that

Barbour did not appear, the lead memorandum concluded that, pursuant to Steltz,

Barbour “waived his Rule 600 rights and could not file a Rule 600 motion upon his return

to the trial court ten years later.” Id. at 10. Accordingly, the lead memorandum held that

the trial court abused its discretion in granting Barbour’s motion, reversed the trial court’s

order, and remanded Barbour’s cases for trial.

       Judge Bowes concurred, but did not join the lead memorandum because, in her

view, it misapplied the holding of Steltz. Judge Bowes noted that the Commonwealth

presented no grounds to disturb the trial court’s factual findings and Rule 600




                                       [J-22-2018] - 7
computation, and that the Superior Court accordingly was bound by the trial court’s

determination that Barbour’s original trial date of October 18, 2004, was scheduled in

violation of Rule 600. Stressing that, in Steltz, this Court concluded that waiver was

appropriate because the defendant failed to appear on a day set for trial within Rule 600,

Judge Bowes observed that, in other words, “[i]n both Steltz and Brock, the defendants

failed to appear for a trial date that complied with Rule 600.” Concurring Memorandum,

slip op. at 1-2 (emphasis in original). By contrast, in the instant case:

       [Barbour’s] absence was not “for a day set for trial within Rule [600].” In
       essence, the trial court determined that dismissal of charges was a fait
       accompli: had [Barbour] appeared in court on October 18, 2004, as
       scheduled, a motion for dismissal would have succeeded. Waiver of the
       rule-based right to a speedy trial is justified when a defendant fails to appear
       for a date within Rule 600 for a simple reason: he could have had a timely
       trial by appearing. By failing to appear, “they go to the end of the line and
       must wait their turn after the convenience of the others their absence
       delayed.” Steltz, 560 A.2d at 1391. Here, the trial court has determined
       [Barbour] was denied the right to timely trial, even if he had appeared in
       October of 2004. All that remained for him to do was request dismissal.


Id. at 2-3 (emphasis in original; some alterations in original; citation modified).

       Judge Bowes illustrated the potential pitfalls of the lead memorandum’s application

of Steltz with a hypothetical:

       Imagine the Commonwealth schedules a case well beyond the mechanical
       run date. The defendant fails to appear and a bench warrant is issued. The
       next day, the litigant appears and the case is scheduled for the next
       available court date. According to the [lead memorandum], this defendant
       has forever lost the ability to raise a Rule 600 claim, and the Commonwealth
       would not need to establish due diligence.


Id. at 3 (emphasis omitted).

       Rather than applying Steltz, Judge Bowes would have denied Barbour relief upon

a distinct, novel theory. Judge Bowes concluded that the ten years that elapsed between

Barbour’s failure to appear and his filing of the Rule 600 motion prejudiced the


                                       [J-22-2018] - 8
Commonwealth’s ability to respond to the motion, in that “the Commonwealth was unfairly

hampered in its ability to convince the trial court that [Barbour] was, in fact, scheduled for

trial well before” October 18, 2004. Id. at 4. Judge Bowes stressed that all rights, even

those of constitutional dimension, may be forfeited by a litigant’s failure to assert the right

in a timely manner. See id. at 9 (quoting United States v. Olano, 507 U.S. 725, 731 (1993)

(“No procedural principle is more familiar to this Court than that a constitutional right, or

a right of any other sort, may be forfeited in criminal as well as civil cases by the failure

to make timely assertion of the right.”) (internal quotation marks omitted)). Judge Bowes

recognized that Rule 600 places a burden upon the Commonwealth, not the defendant,

and that a criminal defendant has no obligation to bring himself to trial. See id. at 11

(citing Commonwealth v. Brown, 875 A.2d 1128, 1141 (Pa. Super. 2005) (“Appellee had

no obligation to bring himself to trial”)). Nonetheless, Judge Bowes reasoned that “there

is a difference between a demand for trial and a demand for discharge.” Id. (emphasis

omitted). When Rule 600 has been violated, Judge Bowes suggested, the defendant

“should bear some duty to assert the allegation of error in a timely manner.” Id.

       In the instant case, Judge Bowes observed “strong indications the Commonwealth

was prejudiced by the delay.” Id. at 12. Although the official record provided scant details

of the proceedings leading up to Barbour’s October 18, 2004 trial date, the evidence

suggested that some type of proceeding was scheduled before that date. After ten years,

Judge Bowes opined, the parties were unable to recall effectively the sequence of events

in 2004. Judge Bowes concluded that “the Commonwealth was prejudiced by the loss of

evidence and faded memories due to [Barbour’s] lack of diligence in pursuing discharge.”

Id. at 13. Accordingly, she would have concluded that Barbour forfeited his right to the

Rule 600 remedy.




                                       [J-22-2018] - 9
       Judge Bowes recognized that the text of Rule 600 does not impose her suggested

time limitation upon the filing of the motion, and further acknowledged that the Superior

Court is not authorized to promulgate rules of procedure, which is the exclusive province

of this Court under Article V, Section 10(c) of the Pennsylvania Constitution.

Nonetheless, Judge Bowes invoked a passage from former Chief Justice Castille’s

concurring opinion in Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), wherein he stated

that, although the Superior Court is not authorized to adopt or amend our procedural

rules, he had “no fixed objection to the [Superior Court] undertaking to adopt efficiencies

and improvements in order to better serve justice.” Id. at 881 (Castille, C.J., concurring).

Judge Bowes suggested that her proposed disposition was consistent with that position.

       We granted Barbour’s petition for allowance of appeal in order to consider the

applicability of the Steltz waiver rule in light of the untimeliness of Barbour’s original trial

date. We also directed the parties to address the viability of Judge Bowes’ novel Rule

600 forfeiture theory.3

       Before this Court, Barbour argues that the Superior Court’s lead memorandum is

inconsistent with both the plain language of Rule 600 and this Court’s decisions in Steltz

and Brock. Barbour notes that the Rules of Criminal Procedure are to “be construed in

consonance with the rules of statutory construction,” and that, under the Statutory

3     Adopting Barbour’s statement of the issue, but directing additional briefing, we
granted allocatur in order to consider these questions:
       Did the Superior Court err in creating a new waiver [ ] provision for
       [Pa.R.Crim.P.] 600 by holding that a defendant who fails to appear for an
       untimely trial can still waive his rights under the rule, in direct contradiction
       to this Court’s jurisprudence?
       Additionally, the parties are directed to address the viability and applicability
       of the waiver theory articulated in Judge Bowes’ concurring memorandum,
       particularly in light of the text of Rule 600.
Commonwealth v. Barbour, 168 A.3d 1241 (Pa. 2017) (per curiam).


                                       [J-22-2018] - 10
Construction Act, “[w]hen the words of a statute are clear and free from all ambiguity, the

letter of it is not to be disregarded under the pretext of pursuing its spirit.” Brief for Barbour

at 19 (quoting Pa.R.Crim.P. 101(C); 1 Pa.C.S. § 1921).              Barbour observes that no

provision of Rule 600 mandates a finding of waiver. See id. at 19-23. Accordingly,

Barbour argues that the Superior Court’s decision is contrary to the unambiguous

language of the rule.

       With regard to the applicability of this Court’s decisions in Steltz and Brock,

Barbour essentially adopts Judge Bowes’ position on this particular point, distinguishing

his failure to appear for an untimely trial from a defendant’s failure to appear for a timely

trial. In Steltz, Barbour argues, it was the defendant’s failure to appear “which caused the

trial to be rescheduled for a date outside of the Rule 600 requirements.” Id. at 23. Here,

unlike in Steltz, Barbour argues that he “did not fail to appear for a properly scheduled

trial.” Id. at 25. As for Brock, Barbour notes that this Court’s opinion did not specify

whether the defendant’s original trial date complied with Rule 600. However, Barbour

observes that the focus of Brock was not upon the timeliness of the trial, but upon the

inquiry of “exactly when a case is ‘set for trial’” for purposes of Rule 600. Id. at 24.

Barbour contends that the Steltz waiver rule is narrow in application, and permits a finding

of waiver only when a defendant causes a delay by failing to appear for an otherwise-

timely trial. Barbour argues that, in finding that his absence from an untimely trial results

in permanent waiver, and thereby excusing the Commonwealth entirely from its Rule 600

obligations, the Superior Court erroneously and unjustifiably expanded the Steltz rule

beyond its intended scope.

       In challenging Judge Bowes’ alternative approach, Barbour argues that Rule 600

already provides an unambiguous limitation upon the filing of a Rule 600 motion. Barbour

highlights the subsection of Rule 600 that specifies that a written motion may be filed “at




                                        [J-22-2018] - 11
any time before trial.”    Id. at 27 (quoting Pa.R.Crim.P. 600(D)(1)).        Thus, Barbour

contends, Judge Bowes’ suggestion—that a defendant must advance a Rule 600 claim

in an unspecified “timely fashion” or lose the right to relief—contradicts the plain language

of the rule. Rather, Barbour argues, “a defendant can move to dismiss a case for a Rule

600 violation any time before trial, with no other time limitations imposed.” Id. at 28.

Barbour further contends that Judge Bowes’ approach would impose a burden upon a

defendant that is inconsistent with the purpose of Rule 600. Barbour notes that it is the

Commonwealth’s duty to prosecute defendants in a timely manner, and that defendants

are neither required nor expected to take any steps to prosecute themselves. Barbour

argues that, “[i]f the Commonwealth forgets about a case and does not pursue it, then the

Commonwealth has failed society,” adding that defendants “should not be punished for

the Commonwealth’s failure.” Id. at 29.

       For its part, the Commonwealth contends that the Steltz waiver rule was premised

not upon the timeliness of a trial, but upon the “ripple-effect a defendant’s non-

appearance has on the system.” Brief for Commonwealth at 18. In the Commonwealth’s

view, the Steltz Court primarily was concerned with the delay that an absence from trial

causes for other individuals, in that a defendant who fails to appear wastes judicial and

prosecutorial time and resources that could have been devoted to other individuals

awaiting trial. For this reason, the Commonwealth contends, the Steltz waiver rule should

apply uniformly to all absentees, without regard to the timeliness of the trial under Rule

600. In further support, the Commonwealth notes that, in Brock, this Court applied the

Steltz waiver rule but “did not emphasize where that trial date fell with regard to Rule 600.”

Id. at 19.

       The Commonwealth further maintains that, should we afford Barbour the remedy

provided by Rule 600, we would encourage “procedural gamesmanship.” Id. at 19-20.




                                      [J-22-2018] - 12
According to the Commonwealth, Barbour “comes to the court with unclean hands

wanting to profit by his wrongful behavior by manipulating a rule designed to protect the

defendant by bringing his case to trial.”     Id. at 21.   To discourage such purported

chicanery, the Commonwealth suggests that this Court apply “the logical, common sense

rule that the voluntary absence of a criminal defendant from the date of trial, wherever it

falls relative to the Rule 600 deadline, is a waiver of that rule.” Id. at 22-23. As a final

argument supporting the uniform, automatic application of the Steltz waiver rule, the

Commonwealth notes that a finding of waiver generally relieves a court from

consideration of the merits of a claim. Because a court, in order to discern a Rule 600

violation, ordinarily must hold a hearing, take evidence, and make findings relating to the

exclusion of certain time periods from the Rule 600 computation, the Commonwealth

argues that it would be incongruous to premise a finding of waiver upon the point in time

at which Rule 600 is violated, inasmuch as the merits of the claim must be addressed

before a violation may be found.      See id. at 24-27. Ruling in Barbour’s favor, the

Commonwealth warns, would “open Pandora’s Box to litigation in Pennsylvania’s trial

courts and appellate courts as to whether Rule 600 even applies to an absconding

defendant.” Id. at 26-27.

       Setting aside the Steltz waiver rule, the Commonwealth suggests that Judge

Bowes provided a reasonable alternative theory, which is acceptable in that it similarly

“does not reward a criminal defendant for intentionally absconding from trial.” Id. at 28.

In the Commonwealth’s view, forfeiture of Barbour’s Rule 600 claim was warranted by the

combination of Barbour’s delay in asserting his right and the prejudice that the

Commonwealth sustained to its ability to defend against his motion. The Commonwealth

likens Judge Bowes’ forfeiture approach to the federal courts’ application of the fugitive

disentitlement doctrine, pursuant to which a court may, in the Commonwealth’s words,




                                     [J-22-2018] - 13
“preclude fugitives from seeking relief from the judicial system whose authority he or she

evades.” Id. at 33; see generally Ortega-Rodriguez v. United States, 507 U.S. 234 (1993).

The Commonwealth acknowledges that Judge Bowes’ theory appears to be inconsistent

with the language of Subsection (D)(1) of the rule, which, as Barbour stresses, provides

that a Rule 600 motion may be brought “at any time before trial.”                 See Brief for

Commonwealth at 35-36; Pa.R.Crim.P. 600(D)(1). Nevertheless, the Commonwealth

suggests, adoption of Judge Bowes’ forfeiture principle would be a permissible exercise

of this Court’s rulemaking authority.        However, the Commonwealth concludes by

suggesting its preference for an extension of the waiver rule of Steltz and Brock, decisions

which, the Commonwealth emphasizes, “remain good law in Pennsylvania.” Brief for

Commonwealth at 36.

       “Ordinarily, prompt-trial rulings are reviewed by the appellate courts for an abuse

of discretion.”    Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (citing

Commonwealth v. Burno, 154 A.3d 764, 793 (Pa. 2017)). However, the applicability of

waiver principles to preclude the Rule 600 remedy is a question of law, over which our

standard of review is de novo and our scope of review is plenary. Id. (citing In re D.L.H.,

2 A.3d 505, 513 (Pa. 2010) (a question of law is “subject to plenary review by this Court

to be conducted de novo”)).

       Although it is a rule-based right that is at issue in this matter, rather than the distinct

constitutional right to a speedy trial, we remain conscious of the essential purpose of Rule

600 and the important constitutional interest that it safeguards—an interest which

underlies all of our Rule 600 jurisprudence.            By way of background, this Court

promulgated Rule 600, as well as its predecessor Rule 1100, in response to the Supreme

Court of the United States’ decision in Barker v. Wingo, 407 U.S. 514 (1972), in order to

provide a concrete standard for effectuating and protecting a defendant’s constitutional




                                       [J-22-2018] - 14
right to a speedy trial under the Sixth Amendment to the United States Constitution 4 and

Article I, Section 9 of the Pennsylvania Constitution.5

       The right to a speedy, public trial is “one of the most basic rights preserved by our

Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226 (1967). Because the exercise

of the government’s power to detain an individual pending a criminal prosecution places

a heavy burden upon the accused, the speedy trial guarantee “is an important safeguard

to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and

concern accompanying public accusation and to limit the possibilities that long delay will

impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116,

120 (1966). For a person subject to pre-trial incarceration:

       The time spent in jail awaiting trial has a detrimental impact on the
       individual. It often means loss of a job; it disrupts family life; and it enforces
       idleness. Most jails offer little or no recreational or rehabilitative programs.
       The time spent in jail is simply dead time. Moreover, if a defendant is locked
       up, he is hindered in his ability to gather evidence, contact witnesses, or
       otherwise prepare his defense. Imposing those consequences on anyone
       who has not yet been convicted is serious. It is especially unfortunate to
       impose them on those persons who are ultimately found to be innocent.


Barker, 407 U.S. at 532-33. Moreover, even for an individual who secures his release on

bail and will await trial outside of a jail cell, the foreboding promise of an impending

prosecution is a heavy weight to carry. “[E]ven if an accused is not incarcerated prior to

trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of

4       The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed[.]” U.S. CONST. amend. VI. The
Sixth Amendment’s speedy trial guarantee was made applicable to the states through the
Fourteenth Amendment. See Klopfer v. North Carolina, 386 U.S. 213, 226 (1967); Smith
v. Hooey, 393 U.S. 374, 374-75 (1969).
5       Article I, Section 9 of our Commonwealth’s charter provides that, “[i]n all criminal
prosecutions the accused hath a right to . . . a speedy public trial by an impartial jury of
the vicinage[.]” PA. CONST. art. I, § 9.


                                       [J-22-2018] - 15
anxiety, suspicion, and often hostility.” Id. at 33. Because the power to deprive one of

his liberty is of such consequence, and because the attendant disturbance to one’s life is

so momentous, the right to a speedy, public trial is a core component of the procedural

rights afforded to the accused under the Constitution, “as fundamental as any of the rights

secured by the Sixth Amendment.” Klopfer, 386 U.S. at 223.

       In Barker, the Supreme Court of the United States articulated a standard for

ascertaining when an individual has been deprived of the federal constitutional right to a

speedy trial. Although the Barker Court adopted a multifactorial balancing inquiry6 and

found “no constitutional basis for holding that the speedy trial right can be quantified into

a specified number of days or months,” the Court held that individual states “are free to

prescribe a reasonable period consistent with constitutional standards.” Barker, 407 U.S.

at 523. Following our decision in Commonwealth v. Hamilton, 297 A.2d 127 (Pa. 1972),

this Court accepted Barker’s invitation, and implemented a rule-based right to a speedy

trial, where speediness is measured by a particular number of days, thereby eliminating

“the inherent vagueness encompassed in any balancing process” and avoiding “the

necessity of a court determining a violation of this constitutional right on a case-by-case

basis.” Id. at 132-33; see also Commonwealth v. Whitaker, 359 A.2d 174, 176 (Pa. 1976)

(noting that Rule 600 “represents this Court’s determination that the ‘balancing test’

announced in Barker provides only the ‘minimum standards guaranteed by the Sixth and

Fourteenth Amendments,’ and that such minimum standards are not adequate to provide

Pennsylvania criminal defendants the protection guaranteed by the constitution of this

Commonwealth”). “Thus, a violation of Rule 600 may result in dismissal of charges even


6      The Barker Court prescribed four factors to be weighed when considering a
constitutional speedy trial claim: “[l]ength of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at
530.


                                      [J-22-2018] - 16
where a court would not otherwise find a constitutional violation under the Barker factors.”

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

       Although Rule 600 was designed to protect the rights of the accused, the rule is

not blind to the needs of the Commonwealth or its interest in prosecuting criminal

offenders. We have described Rule 600 as “a careful matrix protecting a defendant’s

rights to be free from prolonged pretrial incarceration and to a speedy trial, while

maintaining the Commonwealth’s ability to seek confinement of dangerous individuals

and those posing a risk of flight, and to bring its cases in an orderly fashion.”

Commonwealth v. Dixon, 907 A.2d 468, 473 (Pa. 2006). In fixing a general time frame of

365 days, the rule provides the Commonwealth with sufficient opportunity to prepare its

case for trial, but seeks to minimize the harms to the accused that would result from a

lengthier period. However, consistent with the rule’s “dual purpose of both protecting a

defendant’s constitutional speedy trial rights and protecting society’s right to effective

prosecution of criminal cases,” Bradford, 46 A.3d at 701, the 365-day time limit is not

absolute, and certain periods of delay are not to be held against the Commonwealth.

Principally, and conceptually significant for purposes of the instant case, delays caused

by the defendant do not count toward the 365 days provided to the Commonwealth.

Because the Commonwealth is allotted the full time period within which to bring the

defendant to trial, Rule 600 “seeks to prevent the Commonwealth from being accountable

for those delays in the commencement of trial where they result from actions properly

attributable to the defense.” Commonwealth v. Morgan, 398 A.2d 972, 974-75 (Pa. 1979).

       Since the origin of the rule, this Court has applied the intuitive precept that, where

a defendant voluntarily fails to appear for a required court proceeding, the resulting delay

is attributable to him alone, and shall be excluded from the time chargeable to the

Commonwealth. When performing the Rule 600 computation, “the general rule is that,




                                      [J-22-2018] - 17
where a period of delay is caused by the defendant’s willful failure to appear at a court

proceeding of which he has notice, exclusion is warranted.” Commonwealth v. Baird, 975

A.2d 1113, 1118 (Pa. 2009); see also Commonwealth v. Cohen, 392 A.2d 1327, 1331

(Pa. 1978) (holding that “a defendant on bail who fails to appear at a court proceeding, of

which he has been properly notified, is unavailable from the time of that proceeding until

he is subsequently apprehended or until he voluntarily surrenders himself” and “the

Commonwealth is entitled to an exclusion of this period . . . without the requirement of a

showing of its efforts to apprehend the defendant during the period of his absence”). In

both Cohen and Baird, the defendants failed to appear for their arraignments, resulting in

delays excludable from the Rule 600 computation. See Cohen, 392 A.2d at 1329; Baird,

975 A.2d at 1114. This sensible exclusion applies equally to a defendant’s absence from

other pre-trial proceedings at which his appearance is required. By way of example, the

Superior Court correctly deems excludable any delay caused by a defendant’s failure to

appear for a preliminary hearing. See, e.g., Commonwealth v. Armstrong, 74 A.3d 228,

236 (Pa. Super. 2013), aff’d on other grounds, 107 A.3d 735 (Pa. 2014)7; Commonwealth

v. Peterson, 19 A.3d 1131, 1137 (Pa. Super. 2012) (en banc), aff’d, 44 A.3d 655 (Pa.

2012).

         In Steltz, this Court diverged from the general rule as it related to a defendant’s

failure to appear not for a pre-trial procedural hearing or appearance, but for a timely trial.

Theodore Steltz initially appeared “on the day set for trial within the purview of Rule [600].”

Steltz, 560 A.2d at 1390. However, before voir dire commenced, Steltz absconded from


7      In a per curiam order, this Court affirmed Armstrong upon the basis of the Superior
Court’s opinion, but we did not grant allocatur upon the Rule 600 issue raised therein.
Accordingly, as to the proposition for which we presently cite Armstrong, the Superior
Court’s decision does not carry the same precedential value as an opinion of this Court.
See Commonwealth v. Tilghman, 673 A.2d 898, 904 (Pa. 1996). Herein, we cite the
Superior Court’s decision in Armstrong for illustrative purposes only.


                                      [J-22-2018] - 18
the courthouse. He was apprehended eleven days later, and his trial was rescheduled

for a date beyond the Rule 600 run date. On the date of the rescheduled trial, Steltz

moved for dismissal, alleging that his rescheduled trial was untimely under the rule. The

trial court granted Steltz’s motion, and the Superior Court affirmed. This Court reversed

and remanded Steltz’s case for trial. With nary a mention of our earlier decision in Cohen,

in which this Court held that a defendant’s failure to appear “at a court proceeding” results

in excludable time, Cohen, 392 A.2d at 1331, this Court held that Steltz’s failure to appear

for his timely trial resulted in waiver of his Rule 600 claim. Our reasoning, in its entirety,

was as follows:

       One’s voluntary absence from a day set for trial within Rule [600] is a waiver
       of that rule. Therefore, his trial thereafter is, [sic] at the reasonable
       convenience of the court and the prosecuting authorities. Rule [600] is a
       procedural rule designed to give reasonable parameters for the
       commencement of trial.

       It is a benefit to one charged that a trial date will be known as closely as
       possible on our crowded dockets. A trial date for one person is a delay for
       another. When they voluntarily absent themselves, for whatever reason,
       they go to the end of the line and must wait their turn after the convenience
       of the others their absence delayed. We cannot, with limited facilities, let
       one set the rules according to their whim, convenience or wrong.


Steltz, 560 A.2d at 1391 (emphasis added).8

       This Court has applied our holding in Steltz on one other occasion.9 In Brock, John

Brock failed to appear for his scheduled trial date, and spent multiple months as a fugitive

8       Although one might question the reasoning behind the Steltz Court’s adoption of a
strict waiver rule in lieu of the excludable time framework that generally applies to delays
caused by a defendant’s failure to appear—a holding that the Steltz Court did not support
by reference to the text of the rule or any decisional law—Barbour does not ask this Court
to reconsider the viability of Steltz. Moreover, because the instant case is readily
distinguishable, we decline to revisit our holding in Steltz sua sponte.
9     Former Chief Justice, then-Justice, Castille advocated for application of the Steltz
waiver rule in his concurring opinion in Commonwealth v. Shaffer, 712 A.2d 749 (Pa.



                                      [J-22-2018] - 19
before being arrested in another county. Upon his return to the jurisdiction, Brock orally

moved for dismissal pursuant to Rule 600. The trial court granted his motion, and the

Superior Court affirmed. Importantly, the Superior Court concluded that the Steltz waiver

rule was inapplicable, reasoning that “a trial commences under Rule 600 when the first

substantial step toward the guilt-determining process occurs, and, because there was no

evidence that such [a] first step occurred on [his original trial date], trial had not

commenced, and thus Brock had not waived his Rule 600 claim.” Brock, 61 A.3d at 1017.

       This Court disagreed. First, we held that Brock’s Rule 600 claim was deficient in

that he had made an oral motion only. We “reiterate[d] that a motion to dismiss pursuant

to Pa.R.Crim.P. 600 must be made in writing, and a copy of such motion must be served

on the Commonwealth’s attorney.” Id. at 1020. Second, we held that the Superior Court

erred in its attempt to distinguish Steltz. After reviewing the language of Rule 600 and its

accompanying commentary, we agreed with the Superior Court that the “commencement

of trial” for purposes of the rule is to be “marked by a substantive, rather than a pro forma

event.” Id. at 1021. Such a requirement, we explained, “prevents the Commonwealth

from manipulating the Rule 600 clock by initiating superficial or non-substantive court

proceedings,” and “places an obligation on the Commonwealth to ensure that the spirit

behind Rule 600 is not compromised.” Id. at 1021-22 (emphasis omitted). However, we

concluded that the delay resulting from Brock’s absconsion implicated the concerns that

this Court articulated in Steltz, regardless of whether the trial was deemed to have

“commenced.” We reasoned that the “impact of the defendant’s failure to appear is


1998), because the defendant therein had failed to appear for a timely trial. However, the
lead opinion, authored by former Chief Justice Cappy, neither applied nor discussed
Steltz, despite Justice Castille’s invocation of its waiver rule. Instead, the plurality found
that the trial court had abused its discretion by dismissing criminal charges as a sanction
upon the prosecutor, who had planned a vacation during the scheduled trial term. See
Shaffer, 712 A.2d at 752-53.


                                      [J-22-2018] - 20
equally adverse regardless of the stage of the proceedings; once a case has been [ ]

listed for trial, it is irrelevant whether the defendant absents himself before the

proceedings commence or after a substantive event had occurred, as in Steltz.” Id. at

1022. We added that a “defendant cannot be permitted to frustrate the judicial process

in this manner.” Id. Accordingly, we held that the circumstance was indistinguishable

from Steltz, and that Brock had waived his Rule 600 claim by failing to appear for his

scheduled trial.

       As the parties to the instant case both note, this Court’s opinion in Brock did not

review the details of the trial court’s Rule 600 computation or otherwise note whether

Brock’s initial trial date was timely under the rule. As Barbour argues, however, this

omission is easily explained by the Brock Court’s focus upon the Superior Court’s stated

rationale, which centered upon the determination of when a trial may be deemed to

“commence” for purposes of Rule 600. The Superior Court in Brock did not attempt to

distinguish Steltz upon the timeliness of the original trial date, but rather upon the

nonexistence of a substantive event to mark the “commencement” of the trial. A review

of the Superior Court’s memorandum in Brock, however, reveals that Brock’s original trial

date was indeed timely under Rule 600—a conclusion with which this Court took no issue.

See Commonwealth v. Brock, 435 EDA 2008, slip op. at 10 (Pa. Super. June 8, 2010)

(unpublished) (noting that, by the date of Brock’s original trial, “252 days chargeable to

the Commonwealth had elapsed”).

       As is evident, and as the Superior Court in the instant case recognized, this Court

in Steltz and Brock addressed the consequence of a defendant’s failure to appear for a

trial that was timely under Rule 600. In contrast, the instant case presents a circumstance

where the trial court found a Rule 600 violation that predated Barbour’s failure to appear—




                                     [J-22-2018] - 21
a violation wholly independent from and in no way caused by Barbour’s later absence

from trial. We conclude that this distinction is significant and, indeed, dispositive.

       As set forth above, in assessing any period of delay under Rule 600, it is critical to

ascertain the cause of such delay.          Stated in the most general terms, when the

Commonwealth causes delay, the Rule 600 clock continues to tick; when the defendant

causes delay, the clock stops. This causal relationship between a period of delay and

the actions of the parties is a cornerstone not only of the Rule 600 computation, but also

of longstanding constitutional speedy trial jurisprudence, as evidenced by the Barker

Court’s inclusion of “the reason for the delay” among the factors to be weighed when

considering a speedy-trial claim. See Barker, 407 U.S. at 530-31. In Steltz, this Court

stressed that the defendant’s initial trial date was timely, and that his rescheduled trial

facially lay beyond the Rule 600 run date due solely to his absconsion. In such a

circumstance, we deemed waiver of the defendant’s Rule 600 rights to be a suitable

consequence for the defendant’s misconduct. Notably, federal appeals courts have

applied a similar analysis when considering constitutional speedy-trial claims implicating

delays caused by a defendant’s unlawful flight or fugitive status. See, e.g., Cates v.

United States, 379 A.2d 968, 972 (D.C. Cir. 1977) (“[W]here the defendant’s unlawful

flight or hiding out is the reason for the delay in his trial, he is held to have waived his right

to a speedy trial.”) (emphasis added); United States v. Cartano, 420 F.2d 362, 364 (1st

Cir. 1970) (“Defendant cannot complain of any delay attributable to his flight or

unavailability.”) (emphasis added).

       This Court has stressed that Rule 600 “was never intended to be used as a device

by which a defendant may escape responsibility for his actions.” Commonwealth v.

Guldin, 463 A.2d 1011, 1014 (Pa. 1983); see also Commonwealth v. Brightwell, 406 A.2d

503, 506 (Pa. 1979) (Opinion in Support of Affirmance) (“While Rule [600] is a shield to




                                        [J-22-2018] - 22
protect defendants from undue procrastination in the commencement of proceedings

against them, we refuse to over-extend the protections afforded by that Rule in a manner

that would enable it to be used as a sword to allow the accused to benefit from his own

misconduct.”).    Where, however, the Commonwealth violates Rule 600 before a

defendant causes additional delay, concerns relating to the possibility that a defendant

may seek to benefit from his own wrongdoing are not implicated. In this regard, we

approve of the reasoning that the Superior Court applied in Commonwealth v. Colon, 87

A.3d 352 (Pa. Super. 2014), to the extent that the court concluded that defense-caused

delays occurring after the expiration of the Rule 600 time period were irrelevant to the

prompt-trial analysis. See id. at 358 (reasoning that the “delays attributable to Appellant

occurred well after 365 days had already passed since the filing of the complaint, and

have no bearing on the Commonwealth’s failure to commence trial before the expiration

of the mechanical run date”).

       In this case, by the time that Barbour failed to appear for trial, the dictates of Rule

600 already had been transgressed, and Barbour’s right to relief had vested. On this

point, Judge Bowes’ reasoning and interpretation of the Steltz waiver rule was sound:

       Waiver of the rule-based right to a speedy trial is justified when a defendant
       fails to appear for a date within Rule 600 for a simple reason: he could have
       had a timely trial by appearing. . . . Here, the trial court has determined
       [Barbour] was denied the right to timely trial, even if he had appeared in
       October of 2004. All that remained for him to do was request dismissal.


Concurring Memorandum at 2-3.

       We likewise agree with the trial court that, “[b]ecause the Rule 600 violations . . .

occurred before [Barbour] had absconded, the Commonwealth’s argument regarding

‘procedural gamesmanship’ is totally misplaced.” Trial Ct. Op., 4/2/2015, at 22. To be

sure, it would be absurd to permit a defendant to “game the system” by unlawfully

absconding from trial, then invoking the resultant delay as grounds for dismissal under


                                      [J-22-2018] - 23
Rule 600. Steltz precludes precisely this type of “gamesmanship.” However, that is not

what Barbour did in this case. Barbour does not contend that he was deprived of a speedy

trial due to the delay arising from his failure to appear on October 18, 2004. Rather, he

argues that the trial on that date was untimely in the first instance, and without regard to

any subsequent delay. Although the Commonwealth suggests that Barbour seeks to

profit from his wrongdoing, and that to afford him relief would be to grant him a windfall,

it overlooks a countervailing consideration. The Commonwealth also may not benefit

from its own fault, and the dereliction of its duty to provide a speedy trial may not be

excused simply because Barbour happened not to appear for his untimely trial. To ignore

the Commonwealth’s prior failure to satisfy Rule 600, and to find that Barbour waived his

right to seek relief—thereby not only stopping the Rule 600 clock, but essentially breaking

it entirely—would be to grant the Commonwealth a windfall. This we will not do.

       We acknowledge that there is some appeal to the Commonwealth’s argument that,

in order to ascertain a Rule 600 violation, a court must consider the merits of a Rule 600

motion, which a court should not entertain if the claim has been waived. However, the

Commonwealth’s proposed solution to this procedural quandary is to conclude that the

Steltz waiver rule applies categorically to all failures to appear for trial, without

consideration of whether the Commonwealth failed to satisfy its obligations under Rule

600 in the first instance. Although this would be a simple resolution, we will not sacrifice

a defendant’s right to a speedy trial for the sake of mere expedience. Rather, we hold

that, in order to avoid a determination that the Steltz waiver rule precludes relief, a

defendant in this circumstance simply may aver in his Rule 600 motion that his initial trial

date was untimely, without regard to any subsequent period of delay. He then must be

afforded an opportunity to prove that assertion. However, should the challenged trial date

appear facially timely, i.e. within 365 days from the filing of the criminal complaint, and




                                     [J-22-2018] - 24
the complained-of delay clearly resulted from the defendant’s failure to appear on that

date, then the court may find that the defendant’s Rule 600 claim is waived pursuant to

Steltz.

          Turning to the alternative suggestion that Barbour forfeited his right to seek relief

under Rule 600 by waiting nearly ten years to seek dismissal, we agree with Barbour that

Judge Bowes’ approach is foreclosed by the plain language of Rule 600. The rule

unambiguously provides that, when a defendant has not been brought to trial within the

time period set forth therein, “at any time before trial, the defendant’s attorney, or the

defendant if unrepresented, may file a written motion requesting that the charges be

dismissed with prejudice on the ground that this rule has been violated.” Pa.R.Crim.P.

600(D)(1) (emphasis added). After his arrest in September 2014, Barbour’s trial was

scheduled for October 20, 2014. Barbour moved for dismissal under Rule 600 on October

3, 2014. Accordingly, the timing of Barbour’s motion complied with the rule.

          Judge Bowes may very well have been correct that the ten years that elapsed

while these cases remained pending may have caused ADA Carroll’s memory of the

proceedings in 2004 to fade. However, given ADA Carroll’s testimony regarding the

exceedingly informal nature of criminal proceedings in Washington County during the

relevant time period, and considering the apparent lack of sufficient recordkeeping on the

part of the prosecutor, one can hardly conclude that blame for the Commonwealth’s

inability to establish the procedural history of these cases lies solely with Barbour. If

Barbour originally had been scheduled for trial on some date before October 2004, as

Judge Bowes speculated, then the Commonwealth should have been able to produce

some manner of evidence to support that assertion.             As this Court previously has

stressed:

          It would be easy to maintain a diary book where the relevant dates in a given
          prosecution could be promptly entered and checked against the Rule [600]


                                        [J-22-2018] - 25
      run date as a matter of course. Practicing lawyers must maintain docket
      books to make sure that they appear in court on the right date, file pleadings
      on time, complete discovery in a timely fashion, and do not run afoul of
      statutes of limitation. No less is required of a properly administered district
      attorney’s office. It is no less important for a prosecutor than for any other
      attorney to maintain adequate records relating to the status of his cases.


Commonwealth v. Browne, 584 A.2d 902, 906 (Pa. 1990).

      In sum, we conclude that the Steltz waiver rule is narrow in scope, and applies

only where a defendant fails to appear for a trial that complied with the requirements of

Rule 600. Where, as here, a Rule 600 violation is independent from and unrelated to a

defendant’s subsequent failure to appear, that violation is not cured by the defendant’s

absence. Two wrongs do not make a right, and a defendant’s failure to satisfy his

obligation to appear in court does not excuse the Commonwealth’s earlier failure to satisfy

its obligations under Rule 600.

      The order of the Superior Court is reversed.

      Chief Justice Saylor and Justices Baer, Todd, Donohue and Dougherty join the

opinion.

      Justice Mundy did not participate in the consideration or decision of this case.




                                     [J-22-2018] - 26
