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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J., and OTT, J.

DISSENTING MEMORANDUM BY OTT, J.:                          FILED APRIL 08, 2016

      I respectfully disagree with the majority’s decision that affirms the

order of the trial court granting Plowden’s Rule 600 motion to dismiss.

Specifically,     I   disagree   with   the   majority’s    conclusion   that   the

Commonwealth failed to demonstrate excusable delay to extend the Rule

600 run date. In my view, because the record reflects the Commonwealth

exercised due diligence in pursuing Plowden’s return under the Interstate

Agreement on Detainers (“IAD”), 42 Pa.C.S. § 9101 et seq., and the delay in

transferring Plowden from New York was occasioned by circumstances

beyond the control of the Commonwealth, I would conclude that the entire

period of the IAD process, commencing October 9, 2014, is excusable delay.

Therefore, I dissent.
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      The record shows in June of 2014, while Plowden was in prison in

Cambria County, Plowden requested and was granted release on nominal

bail. N.T., 1/5/2015, at 11–12. Plowden would have been free to leave the

Cambria County Jail, but extradition proceedings had been instituted by New

York authorities.   Id. at 12.   The Commonwealth admitted it should have

known there were pending criminal charges against Plowden before

Plowden’s July 3, 2014, extradition hearing. N.T., 1/5/2015, at 29–30, 39.

See also id. at 12–13. However, the Commonwealth took no steps to stay

Plowden’s   extradition   to   New   York.   Id.   at   13.   Thereafter,   the

Commonwealth, upon realizing it would be necessary to bring Plowden back

for trial, immediately commenced communication with New York authorities

to effectuate Plowden’s return to Pennsylvania. Id. at 14–15.

      I agree with the trial court that the Commonwealth waited until

October 9, 2014 to formally request Plowden’s return from New York.         As

such, the time from July 3, 2014 to October 9, 2014 should run against the

Commonwealth.       However, after October 9, 2014, the Commonwealth

worked steadily with New York authorities for Plowden’s transfer.

      Detective Lia DeMarco of the Cambria County District Attorney’s Office

testified her initial telephone contact with New York was on July 3, 2014.

Id. at 15. She further detailed the numerous communications recorded in

her log, admitted as Commonwealth Exhibit 1, both before and after October

9, 2014, on which date she formally started the process under the IAD, 42


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Pa.C.S. § 9101 et seq. Id. at 15–16, 40. Detective DeMarco’s log and her

testimony reveal her persistent, ongoing efforts to effectuate Plowden’s

transfer from New York. See Commonwealth Exhibit 1.1

       Following Detective DeMarco’s initiation of the IAD process on October

9, 2014, New York scheduled a hearing for December 10, 2014. Id. at 51–

52. However, “New York [authorities] got their signals crossed,” and instead

of holding an IAD hearing, there was an extradition hearing. Id. at 21. On

December 11, 2014, Detective DeMarco learned Plowden had refused to

waive extradition, and she would need to obtain a governor’s warrant

pursuant to the Uniform Criminal Extradition Act (UCEA), 42 Pa.C.S. §§

9121-9148.      Id. at 41.      She initiated the paperwork for the governor’s

warrant on December 12, 2014. Id.

       Despite the governor’s warrant, testimony further revealed that

transfer was effectuated pursuant to the IAD. Id. at 42. Detective DeMarco

testified that on December 22, 2014, and December 29, 2014, the Cambria

County District Attorney’s Office overnighted IAD forms to Pennsylvania

authorities for transmission to New York. Id. at 42–43. Detective DeMarco

further testified she did not know when Cambria County was informed that

Plowden was available to be picked up from New York authorities because
____________________________________________


1
  Commonwealth Exhibit 1 reflects Detective DeMarco’s contacts with New
York authorities after October 9, 2014, on the following dates: 10/17/2014,
10/20/2014,     10/23/2014,      10/29/2014,     11/13/2014,    11/20/2014,
12/10/2014, 12/11/2014, 12/12/2014.



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she was not there when the call came to confirm the transfer. Id. at 53.

She had gone on maternity leave on December 19, 2014. Id. at 19.                She

testified that the call from New York to transfer Plowden came “after the

19th.”    Id. at 54.   She confirmed Cambria County deputies would pick up

Plowden “pursuant to the IAD based upon the materials that were sent out

on December the 29th [2014].”             Id. at 43.    Commonwealth counsel

represented Plowden was scheduled to be picked up in New York on January

7, 2015. Id. at 7.

         Excusable delay is delay that occurs as a result of circumstances

beyond      the   Commonwealth’s   control    and   despite   its   due   diligence.

Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. 2007).                          The

Pennsylvania Supreme Court has reiterated that “to act with due diligence,

“prosecutors must do everything reasonable within their power to see that

the case is tried on time.”     Commonwealth v. Bradford, 46 A.3d 693,

703–704 (Pa. 2012), citing Commonwealth v. Browne, 584 A.2d 902, 905

(Pa. 1990) (internal citation omitted).

         Here, the Commonwealth initiated the formal IAD request on October

9, 2014, exercised due diligence throughout the IAD process, and had no

control over the delay by New York authorities in returning Plowden.

Accordingly, on this record, I would reverse the order of the trial court

dismissing the charges against Plowden with prejudice, as I would find no

violation of Rule 600. See e.g., Bradford, supra (dismissal not appropriate


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under Rule 600 when the Commonwealth acted with due diligence in relying

upon the judicial system to transfer documents in accordance with the Rules

of Criminal Procedure); see also Commonwealth v. Kubin, 637 A.2d

1025, 1027 (Pa. Super. 1994) (“[W]e recognize the Commonwealth cannot

force another jurisdiction to act[.]”).

      Accordingly, very respectfully, I dissent.




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