J-A31042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                               Appellant

                      v.

JOSE GONZALES
                                                       No. 363 EDA 2015


                     Appeal from the Order January 8, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0002612-2011

BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 11, 2017

        The Commonwealth appeals from the order of the Philadelphia Court of

Common Pleas dismissing all charges against Appellee, Jose Gonzales, with

prejudice pursuant to Pa.R.Crim.P. 600. The Commonwealth argues that the

trial court erred in overruling a prior judge’s determination that a 208-day

continuance was excludable from the running of Rule 600. We vacate and

remand for further proceedings.

        Appellee was charged with attempted murder,1 aggravated assault,2

carrying a firearm without a license3 and other related offenses in connection


*
    Former Justice specially assigned to the Superior Court.
1
    8 Pa.C.S. § 901(a).
2
    18 Pa.C.S. § 2702(a).
3
    18 Pa.C.S. § 6106(a)(1).
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with the shooting of Cristino Rivera on August 31, 2010, in Philadelphia.

According to the Commonwealth:

         A witness identified [Appellee] as the man who shot the
         victim multiple times and left him lying in the street. A
         second witness heard the gunshots, ran to the
         intersection, and saw [Appellee] hitting the prone victim
         with a gun before running away. The victim was taken to
         the hospital where emergency surgery was performed. He
         was in critical condition, but survived.

Commonwealth’s Brief at 3.

      Appellee was arrested on December 11, 2010, and held for court after

a preliminary hearing on March 2, 2011.        There is no dispute that these

eighty-one initial days were attributable to the Commonwealth. Additionally,

there is no dispute that the subsequent 341-day delay between March 2,

2011, and February 6, 2012, resulted from defense requests and one

continuance not attributable to the Commonwealth.

      Of relevance to this appeal, the trial court, with the Honorable Glynnis

Hill presiding, granted a defense-requested continuance on February 6,

2012, until July 9, 2012. Docket, 2/6/12. At an intervening listing on March

23, 2012, the court ordered: “Commonwealth request for DNA. [Assistant

District Attorney] to prepare order for DNA sample.           [Appellee] to be

brought down next listing . . . Trial date 7/9/12 . . .”   Docket, 3/23/12. On

March 30, 2012, the court noted: “[Appellee] brought down for DNA swab.

Trial date to remain . . . 7/9/12.” Id., 3/30/12. There were several more

continuances between July 9, 2012, and October 9, 2012, all of which



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resulted from joint requests or defense requests for continuances.        On

October 9, 2012, the trial court granted a joint one-day continuance due to a

“DNA issue.” Id., 10/9/12.

     On October 10, 2012, the Commonwealth advised the trial court that

another continuance was necessary, again for the purpose of obtaining DNA

evidence.   The Commonwealth stated: “We can still keep [Appellee] here

just so my detective will have an opportunity to swab him [to obtain a DNA

sample].”4 N.T., Pretrial Hr’g, 10/10/12, at 3. Defense counsel consented

to the swab of Appellee, asserting: “That’s fine, your Honor.   You already

ordered that done and it may turn out to be dispositive either way.”     Id.

The following exchange took place at the conclusion of the hearing:

        [The Commonwealth]: The Commonwealth was otherwise
        ready to proceed and would be able to proceed if
        [Appellee] would waive the DNA issue [for the purposes of
        a direct appeal or a post-conviction proceeding]. I would
        ask that time be marked extendable.

        [Defense counsel]: That’s fine, Your Honor.

4
  We note that in a petition filed in this Court on April 15, 2016, the
Commonwealth first indicated that the certified record did not contain a copy
of the October 10, 2012 hearing transcript. The Commonwealth requested,
and this Court granted, the Commonwealth’s request to supplement the
record. Our review, however, also indicates that the Commonwealth did not
present the trial court with the October 10, 2012 hearing transcript, and it
appears that the trial court did not have the benefit of that transcript when
ruling on the Rule 600 issue or preparing its Pa.R.A.P. 1925(a) opinion. We
disapprove of the Commonwealth’s belated efforts to provide a complete
record for review.

     Lastly, we note it is unclear why an additional swab for Appellee’s DNA
was necessary.



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J-A31042-16



          The Court: Time is marked extendable.

Id. at 4 (emphases added).     Judge Hill continued the case until May 13,

2013. Id. at 4-5. The docket entry for October 10, 2012 states: “DNA not

yet complete.    Commonwealth & Defense otherwise ready.            Time ruled

extendable.” Docket, 10/10/12.

     A status conference was held on May 6, 2013, at which time the

Commonwealth requested a continuance because the DNA testing results

were “still outstanding.” Id., 5/6/13. Between May 7, 2013, and December

3, 2013, numerous additional continuances were granted for outstanding

DNA evidence.

     On    December    3,   2013,   more   than   twenty   months    after   the

Commonwealth first requested Appellee’s DNA sample, the docket indicated

that DNA, as well as fingerprint, discovery was completed.     Id., 12/3/13.

The case was continued until January 6, 2014. Id.

     On January 6, 2014, the matter was again continued to January 8,

2014, due to the court’s trial schedule, as well as a possible non-trial

disposition. The court granted continuances from January 8, 2014, to June

30, 2014, and from June 30, 2014, to December 8, 2014. 5 There was no



5
  The case was reassigned to the Honorable Roxanne Covington, who
entered the order granting the continuance on June 30, 2014. The record
does not indicate the reason for the reassignment of this case to Judge
Covington.



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dispute that the 334-day delay from January 8, 2014, to December 8, 2014,

were attributable to the defense.

      On December 8, 2014, Appellee filed a motion to dismiss under Rule

600, and the trial court, with Judge Covington presiding, heard arguments

on the motion that same day.        Appellee asserted that the Commonwealth

had not been duly diligent in obtaining the DNA results, thus violating

Appellee’s speedy trial rights under Rule 600.

      The trial court ultimately granted Appellee’s motion and dismissed all

charges against him.   The court first acknowledged Judge Hill’s ruling that

the time following the October 10, 2012 continuance was “extendable,” but

concluded the prior ruling was clearly erroneous.      The court specifically

found that the docket entry related to the October 10, 2012 continuance

contained insufficient indication that Appellee agreed to the continuance.

Second, the court examined the totality of the circumstances and found that

manifest injustice resulted from the Commonwealth’s apparent lack of

diligence to obtain the DNA testing results since March 23, 2012. Therefore,

the court determined it was not bound by Judge Hill’s prior ruling regarding

the October 10, 2012 continuance and concluded, in relevant part, that the

208-day delay from the October 10, 2012 continuance to the March 6, 2013,




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status conference should run against the Commonwealth.6             The court

adjusted the Rule 600 run date to July 19, 2013, found a Rule 600 violation

as of the May 6, 2013 continuance for outstanding DNA test results, and

concluded that the violation was prejudicial.

      On December 17, 2014, the Commonwealth filed a motion for

reconsideration in which it argued that the 208-day delay between October

10, 2012 and May 6, 2013 was not chargeable against the Commonwealth.

On December 18, 2014, the trial court vacated the December 8, 2014 order

and ordered an evidentiary hearing.

      On January 8, 2015, Judge Covington convened an evidentiary hearing

on the Commonwealth’s reconsideration motion.        Jill Fertel, the assistant

district attorney assigned to this case in October 2012, testified that on

October 9, 2012, she informed defense counsel that

         [the Commonwealth] was ready [to proceed] with or
         without DNA evidence. But in order to proceed, I would
         request that [Appellee] be colloquied if he wished to
         proceed. To make sure he understood that if we were to
         proceed[,] it would only be if [Appellee] agreed to waive
         any future appellate or PCRA issues with regard to the DNA
         ....

N.T., Pretrial Hr’g, 1/8/15, at 6-7. ADA Fertel continued:

         [Defense counsel] thought it would not be in the best
         interests of his client to proceed without the DNA. As it
         could very well be exculpatory once it had been developed.

6
  Additionally, the trial court concluded that the one-day continuance
ordered on October 9, 2012 for a “DNA issue” was attributable to the
Commonwealth.



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         We discussed that, in that case, we would agree that the
         time would be [time rule extendable]. I remembered it
         very specifically because this was the very first time in my
         career that I encountered this kind of issue . . . .
         [Accordingly,] we indicated to [Judge Hill], at that time,
         that the DNA was not complete. But that otherwise, [the]
         parties were both ready to proceed.

Id. at 7. While cross-examining ADA Fertel, defense counsel—who also was

counsel on October 10, 2012—stated that he had spoken with her but did

not “recall what happened at that listing.”    Id. at 11.    Appellee did not

otherwise rebut ADA Fertel’s account of the October 10, 2012 hearing.

      The Commonwealth argued that under the coordinate jurisdiction rule,

the trial court should not overrule the prior judge’s order that the time from

October 10, 2012, to May 6, 2013, was extendable. Appellee insisted that

prior judge’s decision was “clearly erroneous” and subject to reconsideration.

The court reinstated the order granting Appellee’s Rule 600 motion,

asserting that the record did not expressly reference an agreement by the

parties to deem the time extendable.       Id. at 16-17.    The court further

declined to credit ADA Fertel’s testimony that defense counsel agreed that

the time was extendable, indicating that her “recollection of a conversation

that allegedly took place more than two years prior [was] insufficient.” Trial

Ct. Op., 1/30/16, at 9.

      This timely appeal followed.   Both the Commonwealth and the trial

court complied with Pa.R.A.P. 1925. The Commonwealth raises one issue in

this appeal:



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           Did the lower court err in misapplying the “manifest
           injustice” exception to the rule of coordinate jurisdiction in
           order to revisit a joint continuance, in which time had been
           ruled extendable by another judge, and on that basis
           discharging the prosecution under Pa.R.Crim.P. 600?

Commonwealth’s Brief at 2.

        Our standard of review is as follows:

           This Court reviews a ruling under Rule 600 pursuant to an
           abuse-of-discretion standard. An abuse of discretion is not
           a mere error in judgment but, rather, involves bias, ill will,
           partiality, prejudice, manifest unreasonableness, or
           misapplication of law. Additionally, when considering a
           Rule 600 claim, this Court must view the record facts in
           the light most favorable to the winner of the Rule 600
           motion. It is, of course, an appellant’s burden to persuade
           us the trial court erred and relief is due.

Commonwealth v. Claffey, 80 A.3d 780, 787 (Pa. Super. 2013) (citations

omitted).

        Rule 600 provides: “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.” Pa.R.Crim.P. 600(A)(2)(a). Rule 600(C),

entitled “Computation of Time,” was amended in 2013 to provide in relevant

part:

           (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.

                                      ****

           (3)(a) When a judge . . . grants . . . a continuance:


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                                    ****
            (ii) the judge shall record the identity of the party
            requesting the continuance and the reasons for granting
            . . . the continuance. The judge also shall record to
            which party the period of delay caused by the
            continuance shall be attributed, and whether the time
            will be included in or excluded from the computation of
            the time within which trial must commence in
            accordance with this rule.

Pa.R.Crim.P. 600(C).7

      This appeal turns upon whether the trial court’s ruling was proper

under the coordinate jurisdiction rule. “Generally, the coordinate jurisdiction

rule commands that upon transfer of a matter between trial judges of

coordinate jurisdiction, a transferee trial judge may not alter resolution of a

legal question previously decided by a transferor trial judge.”          Zane v.

Friends   Hosp.,    836   A.2d   25,    29   (Pa.   2003)   (citing,   inter   alia,

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)).                 Departure

from the coordinate jurisdiction rule is permitted only in “exceptional

circumstances,” which includes (1) “a change in the controlling law,” (2) “a

substantial change in the facts or evidence,” or (3) a “clearly erroneous”

order that “would create a ‘manifest injustice’ if followed.” Zane, 836 A.2d



7
  Appellee filed his Rule 600 motion over one year after July 1, 2013, the
effective date of the amendments to Rule 600. The 2013 amendments
“reflect changes in law” within decisions interpreting the prior version of Rule
600. Pa.R.Crim.P. 600, cmt. Appellee took the position in the trial court
that the 2013 amendments apply to this case. N.T., 12/8/14, at 5 (defense
counsel’s reference to 2013 amendments in course of Rule 600 motion).



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at 29 (citations omitted). A “clearly erroneous” order is one that is subject

to “almost certain reversal on appellate review.” Id.

         Here, the trial court overruled the prior judge’s determination that the

time between October 10, 2012, and May 6, 2013, was extendable.              The

court determined that the prior judge’s ruling was “clearly erroneous”

because there was no indication that Appellee agreed to waive the time for

the purposes of Rule 600. Trial Ct. Op. at 8. Moreover, the court declined

to credit ADA Fertel’s testimony regarding an agreement based on the

passage of two years between the October 10, 2012 continuance and the

January 8, 2015 evidentiary hearing.       See id. at 9.   Although the court’s

credibility determinations are always entitled to deference, the transcript of

the October 10, 2012 hearing has now been made available and appears to

support ADA Fertel’s testimony that there was an agreement between the

parties. If an agreement on the time between October 10, 2012, and May 6,

2013, is found, the court’s legal conclusions that (1) the prior judge’s ruling

was clearly erroneous and (2) a violation of Rule 600 occurred would both

fall.8    See Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super.


8
  More specifically, the trial court adjusted the Rule 600 run date to July 19,
2013. The addition of the disputed 208 days from October 10, 2012, to May
6, 2013, would adjust the run date to February 12, 2014. Because defense
counsel also conceded that the 334 days between January 8, 2014 to
December 8, 2014, were attributable to the defense, the run date would be
adjusted to at least January 12, 2015. Thus, there would have been no Rule
600 violation at time of the December 8, 2014, hearing on Appellee’s Rule
600 motion.



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2004) (“If the defense does indicate approval or acceptance of the

continuance, the time associated with the continuance is excludable under

Rule 600 as a defense request.”).

      Nevertheless, the trial court did not have the benefit of the October

10, 2012 hearing transcript.    Accordingly, we vacate the order granting

Appellee’s Rule 600 motion and remand for further consideration of

Appellee’s motion in light of the complete record.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2017




      Because we remand for reconsideration of the trial court’s threshold
determinations that the prior judge’s ruling was clearly erroneous and
whether a Rule 600 violation accrued, we decline to opine on the court’s
further conclusions regarding manifest injustice or prejudice under Rule 600
based on the Commonwealth’s lack of due diligence throughout the case.



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