J-S53043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellee               :
                                         :
           v.                            :
                                         :
TODD DARIN LUCABAUGH,                    :
                                         :
                  Appellant              :              No. 3 MDA 2015

   Appeal from the Judgment of Sentence entered on November 18, 2014
               in the Court of Common Pleas of York County,
              Criminal Division, No. CP-67-CR-0008676-2013

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED NOVEMBER 13, 2015

     Todd Darin Lucabaugh (“Lucabaugh”) appeals from the judgment of

sentence imposed following his conviction of the summary offense of driving

while operating privilege is suspended. See 75 Pa.C.S.A. § 1543(b)(1). We

vacate the judgment of sentence and discharge Lucabaugh.

     On   October   18,   2013,   Lucabaugh   arrived   at   Ashley   Quadar’s

(“Quadar”) home and demanded custody of her children. Lucabaugh is the

paternal grandfather of the children. Quadar refused to give Lucabaugh the

children. Lucabaugh became visibly angry, causing Quadar to call the police.

As a result, Lucabaugh left the residence.     Multiple witnesses observed

Lucabaugh, who had a suspended license, get into a vehicle and drive away

from the scene.
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      The trial court set forth the relevant underlying procedural history as

follows:

      On October 21, 2013, [Lucabaugh] was charged with driving
      under a suspended license – driving under the influence-related,
      simple assault, and defiant trespass. On December 9, 2013, a
      preliminary hearing was held at which the charges of driving
      under a suspended license and defiant trespass were bound over
      for court. On November 17, 2014, [Lucabaugh] filed a Motion to
      Dismiss due to an alleged violation of his right to a prompt trial
      under Rule 600 of the [Pennsylvania] Rules of Criminal
      Procedure. The next day, November 18, 2014, prior to the start
      of trial, the Commonwealth withdrew the defiant trespass charge
      and proceeded to a summary trial … on the driving under a
      suspended license charge. Before commencing the summary
      trial, [Lucabaugh’s] Rule 600 [M]otion was denied.         At the
      conclusion of the trial, the [trial c]ourt found [Lucabaugh] guilty
      of driving under suspension.             [Lucabaugh] immediately
      proceeded to sentencing[,] at which [the trial court] imposed 60
      days of Intermediate Punishment[,] to be split evenly between
      the York County Prison followed by electronically monitored
      house arrest.    [The trial court] also imposed a mandatory
      $500.00 fine.

      On November 19, 2014, [Lucabaugh] filed Post-Sentence
      Motions[,] followed by a supplement to those [M]otions on
      November 25, 2014. On December 1, 2014, th[e trial c]ourt
      denied those Post-Sentence Motions, but [] granted a Stay of
      Sentence.

Trial Court Opinion, 3/9/15, at 1-2 (some capitalization omitted).

      Lucabaugh filed a timely Notice of Appeal and a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

Thereafter, the trial court issued an Opinion.

      On appeal, Lucabaugh raises the following question for our review:

“Whether the trial court committed an error in law by denying [Lucabaugh’s]

Rule 600 Motion to [D]ismiss[,] where the Rule 600 mechanical run-date


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had expired by at least 27 days and the Commonwealth had not exercised

due diligence in its efforts to bring [Lucabaugh] to trial?” Brief for Appellant

at 4.

        Our standard and scope of review are well-settled:

        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, 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
        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



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      accused, but the collective right of the community to vigorous
      law enforcement as well.

Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa. Super. 2011)

(en banc) (citation omitted).

      Rule 600 states the following, in relevant part:

      (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.

                                     ***

      (3)(a) When a judge or issuing authority grants or denies a
      continuance:

         (i) the issuing authority shall record the identity of the party
         requesting the continuance and the reasons for granting or
         denying the continuance; and

         (ii) the judge shall record the identity of the party requesting
         the continuance and the reasons for granting or denying the
         continuance. The judge also shall record to which party the


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         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. 600.1

     “Rule 600 requires the Commonwealth to try a defendant within 365

days of the filing of a criminal complaint.” Commonwealth v. Roles, 116

A.3d 122, 124 (Pa. Super. 2015).

     For purposes of determining the time within which trial must be
     commenced pursuant to paragraph (A), paragraph (C)(1) makes
     it clear that 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. Thus, the inquiry for a judge in determining whether
     there is a violation of the time periods in paragraph (A) is
     whether the delay is caused solely by the Commonwealth when
     the Commonwealth has failed to exercise due diligence. If the
     delay occurred as the result of circumstances beyond the
     Commonwealth’s control and despite its due diligence, the time
     is excluded. In determining whether the Commonwealth has
     exercised due diligence, the courts have explained that due
     diligence is fact-specific, to be determined case-by-case; it does
     not require perfect vigilance and punctilious care, but merely a
     showing the Commonwealth has put forth a reasonable effort.

     Delay in the time for trial that is attributable to the judiciary may
     be excluded from the computation of time. However, when the
     delay attributable to the court is so egregious that a
     constitutional right has been impaired, the court cannot be
     excused for postponing the defendant’s trial and the delay will
     not be excluded.

Pa.R.Crim.P. 600, cmt. (citations, quotation marks, and brackets omitted).

“The Commonwealth has the burden of establishing by a preponderance of

1
 We note that effective July 1, 2013, the Supreme Court of Pennsylvania
adopted a new Rule 600, which reflected the prevailing case law. See
Pa.R.Crim.P. 600, cmt.


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the evidence that it exercised due diligence throughout the prosecution.”

Roles, 116 A.3d at 125. If any defendant is not brought to trial within the

time periods in paragraph (A), the charges will be dismissed with prejudice.

Pa.R.Crim.P. 600(D)(1); Roles, 116 A.3d at 125.

     Lucabaugh contends that the trial court abused its discretion in

denying his Rule 600 Motion where the mechanical run-date had expired at

least 27 days prior to trial. Brief for Appellant at 8, 9. Lucabaugh asserts

that there were no excludable days as he did not request any continuances.

Id. at 9.   Lucabaugh further argues that the Commonwealth failed to

exercise due diligence in bringing him to trial.   Id. at 8, 9.   Lucabaugh

claims that the Commonwealth caused the delay because its witness, Police

Officer Timothy Dehoff (“Officer Dehoff”), was unavailable.       Id. at 10.

Lucabaugh points out that the Commonwealth did not notify either the trial

court or the defense about Officer Dehoff’s unavailability for the August and

September 2014 trial terms. Id. at 10, 12. Lucabaugh also claims that it

was common practice in York County to shift cases to different courtrooms

when availability issues arise. Id. at 13. Lucabaugh additionally notes that

the Commonwealth’s withdrawal of the misdemeanor charge and subsequent

summary trial demonstrates that this matter could have been tried at any

time. Id.

     Initially, Rule 600 is not applicable to trials involving summary

violations, as the rule specifically excludes summary proceedings.       See



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Commonwealth v. Koch, 431 A.2d 1052, 1054 n.5 (Pa. Super. 1981) (en

banc) (stating that Criminal Rule 1100 (predecessor to Rule 600) is

inapplicable to summary proceedings, as the rule specifically excludes such

proceedings).   In point of fact, the title of Chapter 6 of the Pennsylvania

Rules of Criminal Procedure is “Trial Procedures in Court Cases.” Further,

Rule 600(A)(2)(a) requires that “[t]rial 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)

(emphasis added). A “court case” is defined as “a case in which one or more

of the offenses charged is a misdemeanor, felony, or murder of the first,

second, or third degree.” Pa.R.Crim.P. 103. By contrast, a “summary case”

is defined as “a case in which the only offense or offenses charged are

summary offenses.” Id.

     In this case, Lucabaugh was charged in the same Criminal Complaint

with a misdemeanor and a summary offense of driving while his operating

privilege was suspended.    The fact that Lucabaugh was charged with a

summary offense, in the same Complaint as a misdemeanor, establishes this

as a “court case.”   See Commonwealth v. Kujas, 435 A.2d 1293, 1294

(Pa. Super. 1981) (concluding that summary offenses charged in the same

complaint as misdemeanors are part of a “court case” for the purposes of

Rule 1100 (now 600)).      Thus, despite the fact that the Commonwealth

withdrew the misdemeanor charge just prior to trial, we conclude that Rule



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600   is   applicable   to   the   proceedings.   See   id.   (stating   that   the

Commonwealth is not permitted to use nol pros as a device to change the

status of a case and thereby subvert the requirements of Rule 1100); see

also id. (concluding that the trial court erred in failing to dismiss the

summary offenses when it dismissed the misdemeanors under Rule 1100).

      The parties agree that Rule 600 required the Commonwealth to bring

Lucabaugh to trial within 365 days of the filing of the Criminal Complaint.

See Pa.R.Crim.P. 600(A)(2)(a).          The Criminal Complaint was filed on

October 21, 2013.        Thus, Lucabaugh’s trial was required to commence

before October 21, 2014. See id. Lucabaugh’s trial did not commence until

November 18, 2014, which was 27 days after the expiration of the 365-day

period.    The parties agree that Lucabaugh did not seek any continuances.

See N.T., 11/18/14, at 45, 47; see also Trial Court Opinion, 3/9/15, at 6.

Therefore, we must review the record to determine whether the trial court

abused its discretion in determining that the Commonwealth exercised due

diligence.

      Here, on December 9, 2013, following a preliminary hearing, the

charges of driving under a suspended license and defiant trespass were

bound over for court.        Thereafter, the trial court conducted a pre-trial

conference on February 18, 2014, at which Lucabaugh’s counsel asked for

the case to be listed for trial. N.T., 2/18/14, at 2. The case was scheduled

for a jury trial on April 3, 2014. However, no trial occurred, and there is no



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indication in the record as to what had occurred.       There were no further

docket entries until November 17, 2014, when the case was scheduled for a

jury trial on November 18, 2014, and Lucabaugh filed his Rule 600 Motion.

Prior to the start of trial, the Commonwealth withdrew the defiant trespass

charge and the case proceeded to a summary bench trial on the driving

under a suspended license charge. N.T., 11/18/14, at 4-5.

      At this trial, a hearing was conducted on Lucabaugh’s Rule 600 Motion.

The Commonwealth, without presenting any evidence, argued that

Officer Dehoff was unavailable for the August and September trial terms and

that he had submitted an unavailability form for those periods.2 Id. at 45,

46. The Commonwealth further stated that it did not attempt to schedule

the case in October due to ongoing homicide trials. See id. at 45; see also

id. (wherein the Commonwealth states that the trial court “might also have”

been busy and unavailable in August 2014 due to ongoing homicide trials).

The trial court denied Lucabaugh’s Motion, finding that the Commonwealth


2
   As part of his claim, Lucabaugh argues that Officer Dehoff was an
unnecessary witness for the trial on the driving under a suspended license
charge, as other witnesses could have testified to the fact that he drove a
car on the day in question. Brief for Appellant at 10-12. However,
Lucabaugh waived this claim by failing to raise it before the trial court, either
in his Rule 600 Motion or at the hearing, or in his Rule 1925(b) Concise
Statement. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii). Moreover,
Lucabaugh has not demonstrated, through citation to case law, that only
those witnesses who directly observed the crime are necessary witnesses.
See Pa.R.A.P. 2119(a).      In this case, Officer Dehoff testified to his
investigation of the incident, including interviewing witnesses, presenting
Lucabaugh’s driving history, and Lucabaugh’s admissions. N.T., 11/18/14,
at 11-14.


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had acted with due diligence in scheduling the trial. Id. at 48. Specifically,

the trial court found that the Commonwealth placed Lucabaugh’s case on the

trial list in April 2014, well before the mechanical run-date of October 21,

2014, and that Officer Dehoff was unavailable for the trial terms in August

and September 2014. See Trial Court Opinion, 3/9/15, at 8-10.

      With regard to the trial court’s finding that the Commonwealth

exercised due diligence by listing the case in April 2014, which was prior to

the expiration of the run date, see id. at 8, 10, there is no evidence in the

record as to why the trial was listed in April 2014, without going to trial. It

is well-settled that an administrative error or a scheduling conflict

attributable   to   the    trial    court   would     not   be   counted      against   the

Commonwealth        for    the     purposes     of   due    diligence   analysis.       See

Commonwealth v. Hunt, 858 A.2d 1234, 1241-42 (Pa. Super. 2004).

However, due to the absence of evidence in the certified record, this Court

has no way of determining if the delay was attributable to the trial court or

the Commonwealth.          The Commonwealth bears the burden of proof in

demonstrating it acted with due diligence, and such evidence is absent from

the record.    See Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa.

2012)   (stating    that    “[t]he     Commonwealth          …   has    the    burden    of

demonstrating by a preponderance of the evidence that it exercised due

diligence.”); cf. Commonwealth v. Hill, 736 A.2d 578, 592 (Pa. 1999)

(concluding that the Commonwealth did not violate Rule 600 where the trial



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had been listed well before the run date, and the delay was a result of the

defendant’s filing “an inordinate number of pretrial motions.”).          Thus,

because the Commonwealth assumes responsibility for insuring that the

speedy trial rights of defendants are protected, the Commonwealth’s action

of simply listing the case, without evidence of why the case failed to proceed

to trial, is insufficient to prove that the Commonwealth acted with due

diligence.

      The trial court also found that Officer Dehoff’s unavailability during the

August and September 2014 trial terms was outside the control of the

Commonwealth, and demonstrated that the Commonwealth had made

reasonable efforts to bring the case to trial.      See Trial Court Opinion,

3/9/15, at 9, 10. The trial court relied upon the representations made by

the district attorney during the Rule 600 hearing relating to Officer Dehoff’s

unavailability during the August and September 2014 trial terms. See N.T.,

11/18/14, at 46; accord Trial Court Opinion, 3/9/15, at 9.         However, in

scheduling matters under Rule 600, “unsworn representations of counsel are

not evidence.”    Commonwealth v. Johnson, 852 A.2d 315, 318 (Pa.

Super. 2004); see also id. (stating that “[r]epresentations are not

testimony-they are at most a part of argument.”). Indeed, the record does

not contain any evidence to substantiate Officer Dehoff’s unavailability.

Importantly, the Commonwealth never discussed this issue with either the

trial court or defense counsel, or sought a continuance, despite the fact that



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it should have been apparent to the Commonwealth that a date had not

been scheduled within a timeframe consistent with Rule 600.          See id.

(pointing out that the Commonwealth failed to discuss “something as routine

as scheduling with a judge without anything of record showing notice to, or

without giving actual notice to, opposing counsel, especially in a case where

timing of the trial is may be a dispositive issue.”); see also Trial Court

Opinion, 3/9/15, at 6 n.2 (stating that the Commonwealth was aware, prior

to trial, of Lucabaugh’s Rule 600 Motion).       Thus, with respect to the

unavailability of Officer Dehoff, the Commonwealth’s arguments are without

support in the record.   Accordingly, the trial court abused its discretion in

finding that the Commonwealth met its burden to establish due diligence in

bringing Lucabaugh to trial within the required time.     See Bradford, 46

A.3d at 701.

     Furthermore, the Commonwealth failed to act with due diligence by

passively accepting a trial date, which it knew violated Rule 600. Indeed,

the Commonwealth does not demonstrate that the delay due to the alleged

clogged docket could not have been avoided.        See Trial Court Opinion,

3/9/15, at 9 (noting that it is “common practice in York County for cases to




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be shifted to other courtrooms as necessary.”);3 10 (stating that “our

unavailability to try cases would not have been a circumstance beyond the

Commonwealth’s control.”); see also Commonwealth v. Hawk, 597 A.2d

1141, 1145-46 (Pa. 1991) (stating that the Commonwealth did not exercise

due diligence where it failed to take affirmative action to get case tried prior

to Rule 600 deadline because the case was listed for trial at a time that the

trial judge could not hear the case due to illness and vacation, and the

Commonwealth did nothing to avoid delay, despite the fact that record

demonstrated that cases were being transferred to other judges).            The

record discloses no effort by the Commonwealth to inform the trial court or

Lucabaugh of the Rule 600 issues. Additionally, the Commonwealth cannot

show this was the earliest possible date that Lucabaugh’s trial could begin,

and hence, failed to establish due diligence. See Johnson, 852 A.2d at 318

(stating that the Commonwealth failed to exercise due diligence to bring

defendant’s trial within Rule 600 limits where the defendant’s trial was

scheduled to begin on a date after the expiration of the Rule 600 deadline,

and there was an absence of competent evidence of record to show that the

Commonwealth had informed the scheduling judge of the Rule 600 issue

when setting the trial date); see also Commonwealth v. Lewis, 804 A.2d

3
  The Commonwealth argues that Lucabaugh conceded that the trial court
was unavailable to hear the case in August 2014. See Brief for the
Commonwealth at 21. However, our review of Lucabaugh’s brief discloses
that Lucabaugh was merely adopting the reasoning of the trial court that
cases may be shifted to other courtrooms when availability issues arise.
See Brief for Appellant at 13.


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671, 674 (Pa. Super. 2002) (stating that the Commonwealth’s election to

have defendant’s trial begin beyond the expiration of the Rule 600 deadline,

even though it knew or should have known of the time problem, showed a

lack of due diligence when no reasons of record existed to justify postponing

the case).

      Based upon the foregoing, the record is devoid of evidence that the

Commonwealth exercised due diligence to have this case tried at the earliest

possible     date.   Not   only   did   Lucabaugh’s   case   remain   within   the

Commonwealth’s control, but the actions taken to comply with Rule 600 fell

short of the standard of due diligence, as a date had not been scheduled

within the timeframe consistent with Rule 600 compliance.        In point of fact,

a number of months passed, during which time the Commonwealth could

have taken any number of formal and/or informal actions in an attempt to

avoid a Rule 600 violation.       We therefore conclude that the trial court

abused its discretion when it denied Lucabaugh’s Motion to Dismiss pursuant

to Rule 600. See Commonwealth v. Aaron, 804 A.2d 39, 44 (Pa. Super.

2002) (stating that the trial court abused its discretion in failing to dismiss

charges under Rule 600 where there was no evidence of record that the

Commonwealth made an effort to bring case to trial within 365 days).

Accordingly, we must vacate Lucabaugh’s conviction and dismiss the charge

against him with prejudice. See Pa.R.Crim.P. 600(D)(1); Kujas, 435 A.2d

at 1294.



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      Judgment of sentence vacated.    Lucabaugh discharged.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2015




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