J-S71016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

TYSHAWN PLOWDEN,

                        Appellee                    No. 143 WDA 2015


                  Appeal from the Order January 6, 2015
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0002528-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED APRIL 08, 2016

     Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),

appeals from the January 6, 2015 order granting Tyshawn Plowden’s

(“Plowden”) Pa.R.Crim.P. 600 motion to dismiss and dismissing the charges

against Plowden with prejudice. After careful review, we affirm.

     The trial court summarized the relevant procedural history, as follows:

     The parties have stipulated, in accordance with the record, that
     the Rule 600 time limits expired on December 27, 2014. A
     review of the record reveals that on June 9, 2014, defendant
     filed a Petition for Nominal Bail Pursuant to Rule 600, and
     therein alleged that the 180-day time period for bringing him to
     trial expired on June 9, 2014. On June 19, 2014, the Honorable
     Gerard Long of this [c]ourt granted defendant’s Petition and set
     bond at $1.00. On July 11, 2014, defendant was released from
     the Cambria County Prison and was extradited to the State of
     New York, following an extradition hearing on July 3, 2014.

           At the January 5, 2015 hearing [on the Rule 600 motion],
     the Commonwealth offered a written log and oral testimony from
     Detective Lia DeMarco relative to the Commonwealth’s efforts to
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     secure defendant from the State of New York from July 2014 to
     present. See 1/5/15 Com. Exhibit A. At [the] hearing, Detective
     DeMarco testified, in response to questioning by the Court, that
     when the Cambria County Prison, in July 2014, inquired with the
     Commonwealth as to whether defendant could be extradited to
     the State of New York, the Commonwealth did not object to the
     extradition. N.T. 1/5/15 at p. 24. The Detective also admitted
     that prior to [Plowden’s] release from the Cambria County
     Prison, no one scrutinized the charges . . . pending in Cambria
     County. N.T. 1/5/15 at p. 24. However, she further testified that
     since this case, the Commonwealth’s protocol has changed. N.T.
     1/5/15     at  pp.    24-25.  Additionally,  counsel    for   the
     Commonwealth freely admitted that the Commonwealth should
     have known that there were charges pending against defendant,
     should have more closely taken action prior to his release to the
     State of New York, and are now attempting to rectify the errors.
     N.T. 1/5/15 at pp. 29-30.

           Testimony was also presented at the January 5, 2015
     hearing that the Commonwealth started proceeding pursuant to
     the Interstate Agreement on Detainers (“IAD”) on September
     24, 2014. N.T. 1/5/15 at p. 40. However formal written demand
     was not filed until October 9, 2014.      Id.  Thereafter, on
     December 12, 2014, as a “backup” plan, the Commonwealth also
     began proceedings pursuant to the Uniform Extradition Act, as
     Detective DeMarco learned from the State of New York that she
     needed to obtain a governor’s warrant from Harrisburg. N.T.
     1/5/15 at pp. 41-42.

           On December 4, 2014, the last scheduled Jury Selection
     date prior to the Rule 600 run date of December 27, 2014, the
     Court specially set another Jury Selection date of December 16,
     2014 to accommodate the Rule 600 time frame. However,
     defendant was not present on either December 4th or December
     16th, given that he was incarcerated in New York. In fact, as of
     the January 5, 2015 hearing date, the defendant had still not
     been returned to Cambria County, but his trial date was set for
     January 8, 2015, and the Cambria County Sheriff’s Office had
     made arrangements to transport defendant from upstate New
     York to Cambria County on January 7, 2015.

Trial Court Opinion, 3/9/15, at 3–4. Based upon these facts, the trial court

granted Plowden’s Rule 600 motion and dismissed the criminal charges


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pending against him with prejudice.            The trial court also denied as moot

Plowden’s objection to the court conducting the January 5, 2015 hearing in

his absence. Trial Court Order, 1/6/15, at unnumbered 2.

       The Commonwealth raises a single issue for our consideration on

appeal:

       Whether the trial court erred when it granted [Plowden’s] motion
       to dismiss with prejudice pursuant to Rule of Criminal Procedure
       600(D)(1) when the Commonwealth clearly exercised due
       diligence in timely prosecuting [Plowden].

Commonwealth’s Brief at 4.1

       In evaluating a Rule 600 issue:

       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, 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
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1
    Plowden did not file an appellate brief in this matter.



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     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. Horne, 89 A.3d 277, 283–284 (Pa. Super. 2014)

(quoting Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super.

2007) (en banc)).

     In pertinent part, Rule 600 provides as follows:

     (A) Commencement of Trial; Time for Trial

                                   * * *

     (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.

     (2) For purposes of paragraph (B), only periods of delay caused
     by the defendant shall be excluded from the computation of the


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     length of time of any pretrial incarceration. Any other periods of
     delay shall be included in 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 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)(2)(a), (C)(1) and (2), and (D)(1).

     This Court has outlined the requirements for the calculation of the

relevant Rule 600 time period in the following manner:

     The first step in determining whether a technical violation of Rule
     600 has occurred is to calculate the “mechanical run date.”
     Commonwealth v. Aaron, 804 A.2d 39, 42 (Pa. Super. 2002).
     The mechanical run date is the date by which the trial must
     commence under Rule 600. Id. It is calculated by ascertaining
     the number of days in which the Commonwealth must
     commence trial under Rule 600 and counting from the date on
     which the criminal complaint was filed. Id. The mechanical run
     date can be modified or extended by adding any periods of time
     in which the defendant causes delay. Id. Once the mechanical
     run date is modified accordingly, it then becomes an “adjusted
     run date.” Id.

           Rule 600 takes into account both “excludable time” and
     “excusable delay.” Commonwealth v. Hunt, 858 A.2d 1234,
     1241 (Pa. Super. 2004). “Excludable time” is defined in Rule
     600(C) as 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 whereabouts
     [were] unknown and could not be determined by due diligence;
     any period of time for which the defendant expressly waives Rule
     600; and/or such period of delay at any stage of the proceedings
     as results from: (a) the unavailability of the defendant or the
     defendant’s attorney; and/or (b) any continuance granted at the
     request of the defendant or the defendant’s attorney. Id. (citing


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      Pa.R.Crim.P. 600(C)). The “due diligence” required under Rule
      600(C)(1) pertains to the Commonwealth’s efforts to apprehend
      the defendant. Id. at 1241 n.10. The other aspects of Rule
      600(C) defining “excludable time” do not require a showing of
      due diligence by the Commonwealth. Id. “Excusable delay” is
      not expressly defined in Rule 600, but the legal construct takes
      into account delays which occur as a result of circumstances
      beyond the Commonwealth’s control and despite its due
      diligence. See id. at 1241-42 (explaining manner in which
      excludable time, excusable delay and due diligence are to be
      determined); see also DeBlase, 665 A.2d at 431 (discussing
      excludable time and excusable delay).

Commonwealth v. Murray, 879 A.2d 309, 313 (Pa. Super. 2005) (internal

citations modified).

      With regard to the due diligence analysis in the case sub judice, the

trial court concluded the following:

      [I]t is clear that once defendant was granted nominal bond on
      June 19, 2014, the Commonwealth was on notice that Rule 600
      would again be violated in 180 days, absent any proper defense
      continuances.     The record also reveals that, despite having
      knowledge of New York’s extradition proceedings, at no time did
      the Commonwealth request a stay from extradition. In fact, the
      Commonwealth waited until October 9, 2014 to file any formal
      written documents to initiate defendant’s return. Again, as of
      January 5, 2015, the Commonwealth still had not transported
      defendant for trial.

            Accordingly, we find that the Commonwealth did not act
      with due diligence in procuring defendant’s person for trial, and
      that the circumstances occasioning the delay in trial were not
      beyond the Commonwealth’s control.          Consistent with the
      aforesaid, and in consideration of the entire record, the appeal
      should be dismissed.

Trial Court Opinion, 3/9/15, at 4–5.

      The Commonwealth’s position on appeal is that the trial court’s

decision to grant Plowden’s Rule 600 motion was reasoned primarily by the


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trial court’s disapproval of the Commonwealth’s initial failure to contest

Plowden’s extradition to New York in July of 2014. Despite acknowledging

certain of its missteps regarding Plowden’s extradition to New York and the

delay in initiating detainer proceedings, the Commonwealth asserts that it

should have been accorded at least twelve more days of excusable delay

relative to its diligent efforts to transport Plowden from New York for trial.

The Commonwealth also argues that Plowden’s objection to the extradition

proceedings constitutes excludable time which should have factored into the

trial court’s Rule 600 calculation.

      Our review of the certified record and the transcript from the Rule 600

hearing reveals that Detective Lia DeMarco, of the Cambria County District

Attorney’s Office, who was responsible for extradition requests, detailed her

efforts to secure Plowden’s return from New York. N.T., 1/5/15, at 10, 14–

28; see also Commonwealth’s Exhibit A, 1/6/15, at unnumbered 1–3.

Detective DeMarco acknowledged that the Commonwealth was not aware of

criminal charges pending in Cambria County against Plowden and did not

object to Plowden’s extradition to New York in July of 2014. N.T., 1/5/15, at

10, 13.   Detective DeMarco then recounted that beginning in October of

2014, she prepared and transmitted the necessary paperwork to New York

to commence proceedings under the Interstate Agreement on Detainers, 42

Pa.C.S. § 9101, et seq. (“IAD”).      Id. at 40.   However, according to the

detective, rather than conducting an IAD hearing, the New York authorities


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instead held an extradition hearing.              On December 11, 2014, Plowden

refused to waive extradition.        Id. at 20–21.      The next day, on instruction

from the state of New York, Detective DeMarco initiated proceedings under

the Uniform Criminal Extradition Act, 42 Pa.C.S. § 9121, et seq. (“UCEA”),

which necessitated procuring a governor’s warrant from the Commonwealth

of Pennsylvania.2      Id. at 41.     On December 12, 2014, Detective DeMarco

forwarded the request for the governor’s warrant to the appropriate office in

Harrisburg. Id. At this point, Detective DeMarco’s narration of the ensuing

procedures became rather vague.3               What we glean from the remainder of

Detective DeMarco’s testimony is that, despite the commencement of the

____________________________________________


2
    Section 9123 of the UCEA provides:

        § 9123. Duty of Governor with respect to fugitives from
        justice

          Subject to the provisions of this subchapter, the provisions of
        the Constitution of the United States controlling, and any and all
        acts of Congress enacted in pursuance thereof, it is the duty of
        the Governor of this Commonwealth to have arrested and
        delivered up to the executive authority of any other state of the
        United States any person charged in that state with treason,
        felony or other crime, who has fled from justice and is found in
        this Commonwealth.

42 Pa.C.S. § 9123. The New York UCEA statute mimics this language. See
McKinney’s CPL § 570.06
3
  The imprecise nature of Detective DeMarco’s recollection is understandable
because she was on maternity leave from her position beginning on
December 19, 2014, and was apparently reconstructing the events occurring
after that date by reference to receipts. N.T., 1/5/15, at 19, 42.



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UCEA proceedings, Plowden was eventually transported to Cambria County

under the auspices of the IAD.        Id. at 42.   To effectuate the transfer,

Detective DeMarco “overnighted” the IAD forms on December 22, 2014, to

the Pennsylvania IAD Administrator, who, in turn, submitted the forms to

the state of New York on December 29, 2014.         Id. at 42–43.   Detective

DeMarco could not pinpoint the date that Plowden was available to be picked

up from New York custody, only that it was sometime after December 19,

2014. Id. at 54. In any event, the Cambria County Sheriff’s Office made

arrangements to transport Plowden from New York on January 7, 2015.

Trial Court Opinion, 3/9/15, at 4.

      At the conclusion of the testimony, the Commonwealth argued

generally it was entitled to twelve days of excusable delay because “certain

things happened here that were beyond our control even though we

attempted and tried to get [Plowden] back.” N.T., 1/5/15, at 60.          The

Commonwealth admitted that it should “probably have acted sooner than

October [of 2014],” id. at 61, but urged that New York’s failure to

expeditiously hold an IAD hearing, in addition to that jurisdiction’s decision

to instead hold an extradition hearing, resulted in “additional delay that

[was] out of our hands.” Id. at 63.

      Our case law requires the Commonwealth to act diligently to bring a

case to trial and to present evidence supporting its diligence at the Rule 600




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hearing.    As we stated in Commonwealth v. Claffey, 80 A.3d 780 (Pa.

Super. 2013):

     [A] Rule 600 motion shall be denied if the Commonwealth acted
     with due diligence in attempting to try the defendant timely and
     the circumstances occasioning the delay were beyond the
     Commonwealth’s control. Commonwealth v. Riley, 19 A.3d
     1146, 1148–1149 (Pa. Super. 2011); Pa.R.Crim.P. 600(G).
     Thus, if the Commonwealth acted with due diligence and the
     delay in question was beyond the Commonwealth’s control, the
     delay is excusable. Riley, 19 A.3d at 1148–1149.

Id. at 786. See also Ramos, 936 A.2d at 1102 (if defendant’s trial takes

place outside of the adjusted run date, pursuant to Rule 600(G), it must

then be determined whether the delay occurred despite the Commonwealth’s

due diligence); Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super.

2013) (Rule 600 provides for dismissal of charges in cases in where the

defendant has not been brought to trial within the term of the adjusted run

date, after subtracting all excludable time and excusable delay that occurs

as a result of circumstances beyond the Commonwealth’s control and

despite its due diligence).   Conversely, if the Commonwealth was not

attentive to the progression of the case, any ensuing delay will not be

excluded.     Cf. Commonwealth v. Colon, 87 A.3d 352, 361 (Pa. Super.

2014) (Rule 600 violation occurred when Commonwealth failed to exercise

due diligence to try the appellant within 365 days of filing of the criminal

complaint).

     The Commonwealth’s broad assertion that it diligently pursued

Plowden’s return from New York does not warrant relief as it has not


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satisfactorily identified twelve days of excusable delay. The Commonwealth

has the burden of demonstrating by a preponderance of the evidence that it

exercised due diligence in bringing a defendant to trial. Commonwealth v.

Bradford, 146 A.3d 693, 701 (Pa. 2012) (citation omitted).                  The due

diligence inquiry is fact-specific, to be determined on a case-by-case basis.

Id. at 702.

        Even cognizant of the oft-referenced phrase that the Commonwealth

need     not   demonstrate     “perfect     vigilance     and     punctilious    care,”

Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010), we cannot

conclude that the Commonwealth herein put forth a reasonable effort to

demonstrate entitlement to additional credit for excusable delay. The only

specific cited by the Commonwealth to support its claim of improper Rule

600 calculation is that “[Plowden] failed to waive extradition on December

11, 2014 necessitating further work for the Commonwealth.               This garners

the Commonwealth the requisite excusable delay and excludable time.”

Commonwealth’s        Brief   at   11     (record       reference    omitted).     The

Commonwealth, however, makes no attempt to detail further the number of

days that should have been excludable due to Plowden’s failure to waive

extradition or describe the extra work necessitated by Plowden’s actions

which    might   be   considered   as     excusable      delay.      Therefore,    the

Commonwealth has failed to meet its burden of proof that it acted with due

diligence to bring Plowden to trial within the time dictates of Rule 600.


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     Order affirmed. Jurisdiction relinquished.

     P.J.E. Ford Elliott joins the memorandum.

     Judge Ott files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2016




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