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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

BRYAN FINN

                                                   No. 2636 EDA 2016


                   Appeal from the Order July 18, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004896-2012

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

BRYAN FINN

                                                   No. 2834 EDA 2016

                    Appeal from the Order July 18, 2016
             In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0004895-2012


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                       FILED FEBRUARY 23, 2018

     The Commonwealth has appealed from a July 18, 2016 order

dismissing these two cases based upon its violation of Pa.R.Crim.P. 600

(“Rule 600”). The parties filed consolidated briefs in the matters, and




* Former Justice specially assigned to the Superior Court.
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maintain that the appeals involve the same pertinent facts and law. We thus

have consolidated them for purposes of disposition, and we affirm.

      On March 3, 2012, Appellee Bryan Finn was arrested and charged at

criminal action number 4896-2012 with robbery and related offenses in

connection with an armed robbery that he allegedly committed at the Rivas

Mini Mart on 66th Street and Buist Avenue, Philadelphia. He was charged at

criminal action number 4895-2012, with robbery and various other crimes

with respect to a gunpoint robbery of a food market on Elmwood Avenue,

Philadelphia.

      On July 18, 2016, after a hearing, both cases were dismissed due to

the Commonwealth’s violation of the rule in question.          These appeals

followed. The Commonwealth raises this issue: “Whether the court erred in

ordering discharge under Rule 600 where, accounting for defense and court

continuances not in the Commonwealth’s control, time remained to proceed

to trial under the rule.” Appellant’s brief at 2.

      As this Court noted in Commonwealth v. Peterson, 19 A.3d 1131,

1134-35 (2011), aff'd per curiam, 44 A.3d 655 (Pa. 2012),

      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 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,



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       bias, or ill will, as shown by the evidence or the record,
       discretion is abused.

“Our scope of review is limited to the record evidence from the speedy trial

hearing and the findings of the lower court, reviewed in the light most

favorable to the prevailing party.” Commonwealth v. Burno, 154 A.3d

764, 793 (Pa. 2017).

       Rule 600 serves the dual purpose of protecting “a defendant's speedy

trial rights as well as society's right to effective prosecution in criminal

cases.” Id. A proper balance of the two interests was embodied in former

Rule   600(G),   which   “requires    the   court    to   consider    whether   the

Commonwealth exercised due diligence, and whether the circumstances

occasioning the delay of trial were beyond the Commonwealth's control.”

Id. (citing Pa.R.Crim.P. 600(G)).       Accordingly, “If, at any time, it is

determined that the Commonwealth did not exercise due diligence, the court

shall dismiss the charges and discharge the defendant.” Id. “Due diligence is

fact-specific, to be determined case-by-case; it does not require perfect

vigilance and punctilious care, but merely a showing that the Commonwealth

has put forth a reasonable effort.”    Id. at 794. “Failure to meet the rule's

prompt-trial     requirement    constitutes         grounds     for     dismissal.”

Commonwealth v. Mills, 162 A.3d 323, 324 (Pa. 2017); Pa.R.Crim.P.

600(D)(1).




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     New Rule 600(A)(2)(a), which merely embodies old Rule 600 together

with its associated case law, states that trial “shall commence . . . within

365 days from the date on which the complaint is filed.” Pa.R.Crim.P. 600

(A)(2)(a). Rule 600(C) contains a formula for computing the 365 period.

First, “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.” Pa.R.Crim.P. 600(C)(1) (emphasis added). Any delay “caused

by the defendant” is excluded from the computation.             Pa.R.Crim.P.

600(C)(2).    When the trial court grants a continuance, it must “record the

identity of the party requesting the continuance and the reasons for granting

or denying the continuance[.]” Rule 600 (C)(3)(a).

     In this matter, the critical events were as follows.   At the Rule 600

hearing, Appellee agreed that all continuances granted from the filing of the

complaints until February 3, 2014, when his motion to suppress was heard,

were not caused by the Commonwealth’s lack of due diligence. Thus, under

Rule 600, Appellee had to be tried by February 3, 2015.      After Appellee’s

motion to suppress was denied on February 3, 2014, the Commonwealth

indicated that it was going to call an eyewitness about whom Appellee was

unaware.     Thus, Appellee requested a short continuance to obtain the

witness’s name, which the trial court concluded that Appellee was entitled to

receive. The court granted that continuance and expressly stated that the

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delay from February 3, 2014 was attributed to the defense.              That

continuance resulted in the exclusion of sixteen days from the 365

calculation so that Appellee had to be tried by February 19, 2015.      After

entering the February 3, 2014 continuance, the court scheduled trial for

February 19, 2014, which gave the Commonwealth sixteen days to give

Appellee the information in question.   Therefore, as of February 19, 2014,

Rule 600 required the Commonwealth to bring Appellee to trial by February

19, 2015.

     The Commonwealth did not reveal the identity of its witness, offering

no reason for its failure, and, on the rescheduled trial date of February 19,

2014, a continuance was granted. While Appellee asked for a continuance

on that date, the order granting that continuance did not indicate that the

delay caused by it would be attributable to the defense. In that order, the

trial court scheduled trial for February 6, 2015, which it stated was the

earliest possible date that the court had available.    The Commonwealth

never gave Appellee the name of its surprise witness, and indicated that it

would not present him/her at trial. It also made no effort to secure another

courtroom.

     A pretrial conference was held on February 6, 2015, when both sides

were ready for trial, which was scheduled for February 9, 2015. Three

defense-requested continuances resulted in trial being rescheduled for

February 22, 2016 so that the 365-day Rule 600 period ended on March 10,

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2016, which accounts for the sixteen days that were attributable to the

February 3, 2014, to February 19, 2014 continuance. Trial was continued on

February 22, 2016, within the time constraints outlined by Rule 600 because

the Commonwealth’s attorney had another trial. Trial was re-listed for July

18, 2016, when the motion to dismiss was granted.

     Herein, the trial court concluded that the delay from the February 19,

2014 continuance was not attributable to the defense.     We cannot find an

abuse of discretion in that determination.     The delay flowing from the

February 19, 2014 continuance was caused by the Commonwealth’s lack of

due diligence because it had failed to hand over the name of the witness to

Appellee, an action that the Commonwealth had sixteen days to perform.

Simply put, this inaction cannot be characterized as a reasonable effort on

the part of the Commonwealth to advance the case. If it had told Appellee

the witness’s name, trial would have commenced on February 19, 2014,

within the Rule 600 time constraints.

     On February 3, 2014, trial was scheduled in three days and Appellee

was prepared to proceed.     At that time, the Commonwealth decided to

present a surprise witness at the scheduled trial, and Appellee asked for a

brief continuance to discover the witness’s identity so that he could prepare

proper cross-examination. That brief continuance delay of sixteen days was

attributed to him. The Commonwealth failed to perform the simple task of




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giving the name of that witness to Appellee, never explaining its inaction and

eventually reporting that the witness would not appear at trial.

      Appellee was forced to ask for the February 19, 2014 continuance

solely due to the Commonwealth’s continued failure to give him a name,

which meant that trial had to be scheduled on February 9, 2015. Thus, even

though the February 19, 2014 continuance was requested by the defense, it

was caused by the Commonwealth’s lack of diligence flowing from its refusal

to give Appellee the information that he sought.        Indeed, the witness’s

identity never was revealed, and the Commonwealth ultimately articulated

that it did not intend to present that person at trial. Likewise, no reason was

offered as to why the Commonwealth did not indicate between February 3,

2014, and February 19, 2014, that the witness was not going to appear so

that trial could have proceeded as scheduled on February 19, 2014.

      Under Rule 600, delay caused by the Commonwealth when it did not

exercise due diligence is not removed from Rule 600’s 365-day calculation.

Since the Commonwealth failed to exercise due diligence between February

3, 2014, and February 19, 2014, the time resulting from the February 19,

2014 continuance was caused by it, and the delay between February 19,

2014, and the newly-rescheduled February 9, 2015 trial date is not omitted

from the 365 days so that, after grant of the February 19, 2014 continuance,

Appellee still had to be tried under Rule 600 by February 19, 2015.




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        In asserting that the time between February 19, 2014, and February 9,

2015, should be excludable, the Commonwealth focuses on the fact that the

February 19th continuance was labeled as a defense continuance, and it

insists that the trial court must be bound by its characterization of that

continuance. However, the February 19, 2014 continuance, in contrast to the

one granted on February 3, 2014, failed to indicate that delay caused by its

grant    would      be   attributable   to    the    defense.    Furthermore,   the

Commonwealth refuses to acknowledge that the February 19, 2014

continuance was necessary solely due to its failure to disclose the identity of

the witness, as ordered on February 3, 2014.                None of the actions of

Appellee, who was ready to proceed to trial if he had been given the

witness’s name, was responsible for the February 19, 2014 continuance

request.      Rather, the Commonwealth was directly responsible for the

continuance because it represented that it was planning to present a witness

that Appellee was not prepared to defend against and then it ignored,

without explanation, its obligation to forward the name of that witness to

Appellee.

        Under paragraph (C)(1) of Rule 600, “any delay in the commencement

of   trial   that   is   not   attributable   to    the   Commonwealth   when   the

Commonwealth has exercised due diligence must be excluded from the

computation of time.” Comment, Pa.R.Crim.P. 600. Conversely, during any

period when the Commonwealth has not proceeded with due diligence, such

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time is attributable to it.       Mills, supra.1   In the present cases, it was

actually the Commonwealth that “caused” the delay on February 19, 2014,

____________________________________________


1 In Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017), our Supreme Court
rejected a bright-line rule that the normal judicial progression of a case
constitutes delay. “[T]ime attributable to the normal progression of a case
simply is not ‘delay’ for purposes of Rule 600.” Id. at 325. Nevertheless,
the Court was sympathetic to delays caused by busy court calendars, noting
that “where a trial-ready prosecutor must wait several months due to a court
calendar, the time should be treated as ‘delay’ for which the Commonwealth
is not accountable.” Mills, supra at 325. The present case involves a
lengthy delay following a defense-requested postponement and is therefore
not directly controlled by Mills. However, even if we accept the
Commonwealth’s characterization of the resulting delay of eleven and one-
half months as of no moment due to the trial court’s unavailability, the
concurring opinion in Mills, authored by Justice Wecht and joined by Justices
Todd and Donohue, suggested that the Commonwealth cannot flatly rely
upon judicial delay without first establishing its due diligence:

       [T]he 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 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.

Id. at 326 (Wecht, J., concurring).
(Footnote Continued Next Page)


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and it was not duly diligent in prosecuting this matter between February 3,

2014, and February 19, 2014, because the name of the witness could have

been    given    to   Appellee    within       the   sixteen   days    allotted   to   the

Commonwealth by the February 3, 2014 continuance.                     This matter could

have proceeded to trial on February 19, 2014, and the February 19, 2014

continuance did not operate to exclude any time from the 365-day

calculation.

       We also conclude that any delay caused by the February 22, 2016

continuance requested by the Commonwealth was caused by its failure to

exercise due diligence. As of February 22, 2016, when the Commonwealth

requested the continuance, there were sixteen days left within which it could

have tried Appellee without violating Rule 600. Additionally on February 22,

2016, nearly four years had lapsed since the complaints herein were filed,

(Footnote Continued) _______________________

      In this respect, prior precedents have suggested that the
Commonwealth may have the duty to seek an alternative courtroom when
lengthy delays are involved. See e.g. Commonwealth v. Trippett, 932
A.2d 188, 198 (Pa.Super. 2007) (case delayed by over six months due to
unavailable courtroom; “Commonwealth attempted to have the case
reassigned to another judge but none [was] available”). Thus, the
Commonwealth arguably had the duty to seek an alternative courtroom as a
component of its due diligence obligations, even if we accept the
Commonwealth’s argument that the defense was at fault for the
postponement and resulting delays. We note that the Philadelphia County
Court of Common Pleas website states that the County has “[f]orty-one
commissioned judges . . . assigned to the criminal programs[.]”
http://www.courts.phila.gov/common-pleas/trial/.




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and the Commonwealth has offered this Court no reason why some other

attorney from the largest district attorney’s office in the Commonwealth

could not have tried the matters, especially given the serious Rule 600

problems at issue. Since none of the time between February 22, 2016, and

July 18, 2016, can be excluded from 365 days allotted by Rule 600, on July

18, 2016, the Commonwealth was in violation of Rule 600 by four months.

It is evident that the Commonwealth was not duly diligent in prosecuting

these cases, and we cannot find an abuse of discretion in the trial court’s

conclusion that Rule 600 was violated.

     Orders affirmed.

     P.J.E. Stevens joins the memorandum.

     Judge Shogan concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/18




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