J-A19004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                       Appellant                 :
                                                 :
                                                 :
                v.                               :
                                                 :
                                                 :
    ALEX MCGINTY, JR.                            :   No. 561 EDA 2019

                Appeal from the Order Entered January 15, 2019
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0002173-2014


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                              FILED DECEMBER 06, 2019

        The Commonwealth of Pennsylvania appeals from the order granting the

motion to dismiss pursuant to Pa.R.Crim.P. 600 filed by Appellee, Alex Robert

McGinty.      The     Commonwealth             contends     that   the   trial   court

misapplied Rule 600 and erred in finding that the Commonwealth failed to

exercise due diligence. The trial court held:

            The Commonwealth is required to act with due diligence
            throughout this period and maintain adequate records to
            ensure compliance with Rule 600. The Commonwealth
            failed to submit records of any efforts to bring Defendant
            to trial within the time constraints of Rule 600. We find
            that the facts here are more akin to [Commonwealth v.
            Barbour, 189 A.3d 944 (Pa. 2018)] and we will grant
            Defendant Motion to Dismiss pursuant to Pa.R.Crim.P. 600.

Trial Court Opinion, 1-15-19, at 8. We affirm.

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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        We need only summarize the procedural history of this appeal. On

September 24, 2012, the Commonwealth filed a Criminal Complaint charging

Appellee with two counts of Aggravated Assault1 and Assault by Prisoner.2

        Bail was set on September 27, 2012, however, Appellee was unable to

make bail and was incarcerated. Following a number of continuances, mostly

requested by Appellee, a preliminary hearing was finally held on October 27,

2014, during which Appellee waived all of the charges into court.

        A Criminal Information was filed on November 20, 2014. A bail hearing

was held on December 8, 2014, which resulted in Appellee being immediately

released on unsecured bail. The case was placed on the Criminal Trial Term

for February 2015.

        On January 28, 2015, the trial court removed the case from the February

trial list and placed it on the March 2015 Criminal Trial Term. A status

conference was scheduled for February 18, 2015, with counsel and Appellee

ordered to appear. However, Appellee did not appear for the February 18 th

conference, and the conference was continued to February 25, 2015. The trial

court was under the impression that a bench warrant had been issued on

February 18, 2015, following the Appellee’s nonappearance, however a review

of the docket entries indicates that no bench warrant had been issued on that

day. On February 25, 2015, the trial court again noted that Appellee had


____________________________________________


1   18 Pa.C.S.A. §§ 2702(a)(2) & (3).
2   18 Pa.C.S.A. § 2703(a).

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failed to appear, and mistakenly referred to the earlier bench warrant, which

had not been issued.

        A pre-trial conference was eventually scheduled for June 6, 2018, which

was continued to August 22, 2018.3 Once again, the Appellee was ordered to

appear for the pre-trial conference. On August 2, 2018, Appellee filed a motion

to dismiss based upon an alleged violation of Pa.R.Crim.P. 600. A hearing was

held on the motion on September 20, 2018.

        Following the hearing, and the filing of briefs by the parties, the trial

court filed an opinion and order on January 15, 2019, which granted the

motion and dismissed the Criminal Information with prejudice.

        This appeal was timely filed by the Commonwealth.                The trial court

properly filed a Statement in accordance with Pa.R.A.P. 1925(a), which

directed our attention to the opinion of January 15, 2019.

        The trial court found that the mechanical run date for purposes of Rule

600 was March 23, 2013 because of the Appellee’s pretrial incarceration. The

trial court further noted that the Appellee had been released on unsecured bail

on December 8, 2014, which was past the mechanical run date. As stated

above, there was, at least, a desire in the trial court to issue a bench warrant

after    the   Appellee’s   nonappearance        in   February   2015.    In   citing   to

Commonwealth v. Barbour, 189 A.3d 944 (Pa. 2018), however, the trial



____________________________________________


3   See Trial Court Orders of May 22, 2018, June 6, 2018, and July 25, 2018.

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court found that the Appellee’s Rule 600 rights had already been transgressed

by that time. See Trial Court Opinion, 1/15/19, at 7.

      On appeal, the Commonwealth argues that the majority of the delay in

this case was the cause “of either the Appellee seeking continuances of his

case, or his being absent from the proceedings without cause, leading to the

issuance of a bench warrant”. See Appellant's Brief at 4.

      By way of further background to the Commonwealth's arguments, there

does not appear to be any dispute that the mechanical run date

under Rule 600(A)(1) expired on March 23, 2013. We have diligently reviewed

the docket entries which are available, and we are constrained to agree with

the trial court that the adjusted run date had expired prior to the Appellee’s

nonappearance in 2015.

      On appeal, the Commonwealth emphasizes that the trial court was

under an obligation to exclude any time or delay attributable to the Appellee,

as well as any excusable delay that occurred due to circumstance beyond the

Commonwealth’s control and despite its due diligence. Commonwealth's Brief

at 10. The Commonwealth asserts that Appellee’s requests for continuances

up until his willful failure to appear on February 25, 2015 amounted to 637

days. If the trial court had accounted for these delays, then there was no Rule

600 violation up to the February 25, 2015 conference.

      The standards governing our review are well established.

         [O]ur standard of review of a trial court's decision is
         whether the trial court abused its discretion. Judicial

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          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, 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.

Commonwealth v. Leaner, 202 A.3d 749, 765-66 (Pa. Super. 2019)

(citation and internal alterations omitted), appeal denied, 216 A.3d 226 (Pa.,

filed July 2, 2019).

      Rule 600 provides:

          (A) Commencement of Trial; Time for Trial
          (1) For the purpose of this rule, trial shall be deemed to
          commence on the date the trial judge calls the case to trial,
          or the defendant tenders a plea of guilty or nolo
          contendere.
          (2) Trial shall commence within the following time periods.
          (a) Trial in a court case in which a written complaint is filed
          against the defendant shall commence within 365 days
          from the date on which the complaint is filed.
          ***
          (C) Computation of Time
          (1) For purposes of paragraph (A), 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. Any other periods of
          delay shall be excluded from the computation.
          ***
          (D) Remedies
          (1) When a defendant has not been brought to trial within
          the time periods set forth in paragraph (A), at any time
          before trial, the defendant's attorney, or the defendant if

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         unrepresented, may file a written motion requesting that
         the charges be dismissed with prejudice on the ground that
         this rule has been violated. A copy of the motion shall be
         served on the attorney for the Commonwealth concurrently
         with filing. The judge shall conduct a hearing on the
         motion.

Pa.R.Crim.P. 600(A)(1), (A)(2)(a), (C)(1), (D)(1).

     As this Court has stated:

         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. Peterson, 19 A.3d 1131, 1135 (Pa. Super. 2011)

(citation omitted). Furthermore,

         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.” The adjusted run date is
         calculated by adding to the mechanical run date, i.e., the
         date 365 days from the complaint, both excludable time
         and excusable delay. “Excludable time” is classified as


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         periods of delay caused by the defendant. “Excusable
         delay” occurs where the delay is caused by circumstances
         beyond the Commonwealth's control and despite its due
         diligence. “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, inter
         alia, 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.
         Periods of delay caused by the Commonwealth's failure to
         exercise due diligence must be included in the computation
         of time within which trial must commence.

Commonwealth v. Moore, 214 A.3d 244, 248-249 (Pa. Super. 2019)

(citations omitted).

      In Commonwealth       v.   Mills,   162   A.3d   323   (Pa.   2017),   the

Pennsylvania Supreme Court noted that “time attributable to the normal

progression of a case simply is not ‘delay’ for purposes of Rule 600.” Mills,

162 A.3d at 325. Mills rejected a bright-line rule that “ordinary trial

preparation” is “excludible as a matter of course.” Id. at 325, n.1. Instead,

the Mills Court emphasized that “courts of original jurisdiction must apply

judgment in distinguishing between delay attributable to the court and that

which should be allocated to a party.” Id. at 325.

      “Once a violation of Rule 600 has been established, ... the inquiry

becomes whether the Commonwealth exercised due diligence in bringing [a

defendant] to trial and if the circumstances occasioning the postponement

were beyond the control of the Commonwealth.” Commonwealth v. Kearse,

890 A.2d 388, 392 (Pa. Super. 2005). “The Commonwealth ... has the burden

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of demonstrating by a preponderance of the evidence that it exercised due

diligence.” Commonwealth v. Cole, 167 A.3d 49, 71 (Pa. Super. 2017)

(citation and quotation marks omitted), appeal denied, 186 A.3d 370 (Pa.

2018).

       Instantly, we agree with the trial court that the Commonwealth did not

meet     its   burden   to   establish    additional   time    was    excusable

under Rule 600. We note that other than the February 25, 2015 bench

warrant, the Commonwealth presented no evidence of its due diligence. See

N.T., 9/20/18, at 6. Although the Commonwealth refers to the total time

excusable, the trial court concluded that the Commonwealth had failed to

establish that it had acted with due diligence during the pendency of this

prosecution. The Commonwealth does not contest the trial court’s finding that

Appellee complied with the special conditions of his bail, notably that he reside

in the NHS group home in Effort, Pennsylvania. See Trial Court Opinion,

11/15/19, at 6. As a result, the Commonwealth also does not challenge the

court’s finding that Appellee “had absconded to cause delay.” Id. at 7.

       In sum, having reviewed the record in a light most favorable to Appellee

as the prevailing party and the Commonwealth's limited arguments, the

Commonwealth has not established an abuse of discretion. See Leaner, 202

A.3d at 765-66. The Commonwealth failed to develop an appropriate record

to support its arguments that it exercised due diligence or the delays were




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beyond its control. See Kearse, 890 A.2d at 392; see also Pa.R.A.P. 302(a).

Accordingly, we are constrained to conclude that no relief is due.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2019




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