J-S28022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

REXFORD SNYDER

                            Appellant                 No. 1320 WDA 2016


               Appeal from the Judgment of Sentence July 6, 2016
                In the Court of Common Pleas of McKean County
               Criminal Division at No(s): CP-42-CR-0000267-2015


BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                            FILED AUGUST 1, 2017

       Rexford Snyder appeals from the July 6, 2016 judgment of sentence

entered in the McKean County Court of Common Pleas following his

convictions for driving under the influence of alcohol or a controlled

substance (DUI) – general impairment, DUI – highest rate of alcohol, driving

while operating privilege is suspended or revoked – blood-alcohol content

(“BAC”) 0.02% or greater while license suspended, and careless driving.1

We affirm.

       The trial court set forth the following factual and procedural history:


____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
        75 Pa.C.S. §§ 3802(a)(1), 3802(c), 1543(b)(1.1)(i), and 3714(a),
respectively
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           Snyder was charged on March 17, 2015 with [among other
           things, the aforementioned offenses.         Snyder] was
           preliminarily arraigned on said charges on March 30, 2015,
           and a preliminary hearing was scheduled before [the]
           Magisterial District Judge [(“MDJ”)] on April 22, 2015,
           which was continued on request of [Snyder] until May 6,
           2015 . . . . On May 6, 2015, a preliminary hearing was
           held before [the] MDJ and all charges were bound over.

               [Snyder]’s Last Day to Plea was scheduled for July 16,
           2015 and on that day [Snyder] entered a plea of not guilty
           and requested that his case be listed for jury trial. By
           notice dated July 28, 2015, [Snyder]’s case was listed for
           trial as a backup[2] on September 30, 2015 . . . . On
           September 30, 2015, [Snyder]’s case listed as first backup
           did not proceed to trial because the primary case was tried
           on that date.       By notice dated January 27, 2016,
           [Snyder]’s case was then listed for trial on March 15,
           2016. [Snyder]’s trial could not take place on March 15,
           2016, because the primary case scheduled for March 14,
           2016 . . . carried over to a second day on March 15, 2016.
           No courtroom or judge was available for [Snyder]’s trial.
           By notice dated March 16, 2016, [Snyder]’s case was listed
           as the primary case for the next available jury trial date,
           April 26, 2016.

              [Snyder] filed a Motion to Dismiss pursuant to
           [Pennsylvania] Rule [of Criminal Procedure] 600 on April
           15, 2016. The Commonwealth filed an Answer . . . on
           April 18, 2016 . . . . [After a hearing,] the court . . .
           denied [Snyder]’s motion [on April 21, 2016].

                                           ...

              The scheduled trial for April 26, 2016, was again
           continued on the Commonwealth’s motion due to the
           unavailability of the expert laboratory witness because of a
____________________________________________


       2
         The trial court noted that “[i]n McKean County, the court
administrator schedules two or three jury trials on the same day, a primary,
a backup, and a second backup. Persons involved in the backups are on call
to report to the Court House on a one-hour notice if the priority case does
not take place.” 1925(a) Statement, 11/10/16, at 3.



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           medical emergency. The continuance was to May 25,
           2016, the next available trial date for the court. On May
           24, 2016, the day before trial was to commence, [Snyder]
           filed his second Motion to Dismiss Pursuant to [Rule] 600.
           [Snyder] alleged that between April 26, 2016 and May 25,
           2016, there was an available trial date, May 23, 2016, two
           days prior to the trial date which the trial actually took
           place.

             The Court . . . den[ied Snyder]’s Motion to Dismiss [on
           May 24, 2016 . . .]

1925(a) Statement, 11/10/16, at 3-5 (“1925(a) Op.”).

       On May 25, 2016, a jury convicted Snyder of the aforementioned

charges.    On July 6, 2016, the trial court sentenced Snyder to 18 to 60

months’ incarceration for one of his DUI convictions3 and a concurrent 90

days’ incarceration for his conviction for driving while operating privilege

suspended. On July 18, 2016, Snyder filed a post-sentence motion, which

the trial court denied on August 3, 2016.        On August 31, 2016, Snyder

timely appealed to this Court.

       Snyder’s sole issue on appeal is “[w]hether the trial court abused its

discretion in denying [his] motions to dismiss pursuant to Pa.R.Crim.P.

600?” Snyder’s Br. at 5. Our standard of review for Rule 600 claims is an

abuse of discretion.       Commonwealth v. Thompson, 93 A.3d 478, 486
____________________________________________


       3
         The trial court did not specify, either in its sentencing order or
Pennsylvania Rule of Appellate Procedure 1925(a) opinion, the DUI
conviction upon which it was sentencing Snyder. Based on the length of the
sentence, we presume it was DUI – highest rate of alcohol. The trial court
correctly determined that the other DUI conviction merged for sentencing
purposes.



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(Pa.Super. 2014).     “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.” Id. (quoting Commonwealth

v. Ramos, 936 A.2d 1097, 1100 (Pa.Super. 2007)). We are also reminded

that

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

Id. (quoting Ramos, 936 A.2d at 1097) (alterations in original).

       Rule 600 provides in pertinent part:

         (A) Commencement of Trial; Time for Trial

                                      ...

            (2)   Trial shall commence within the following time
                  periods.


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               (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 the reasons for
                      granting or denying 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 in within which trial must
                      commence in accordance with this rule.

Pa.R.Crim.P. 600.

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

365 days of the filing of a criminal complaint[,] . . . [a] defendant . . . is not

automatically entitled to discharge under Rule 600 where trial starts more

than 365 days after the filing of the complaint.” Commonwealth v. Roles,


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116 A.3d 122, 125-26 (Pa.Super. 2015).              “Rather, 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.’”            Id. at 126 (quoting Commonwealth v.

Goldman, 70 A.3d 874, 879 (Pa.Super. 2013)). “The adjusted run date is

calculated by adding to the mechanical run date, i.e., the date 365 days

from the complaint, both excludable and excusable delay.” Id.

      “Excludable time includes delay caused by the defendant or his

lawyer[,] . . . [whereas] excusable delay occurs where the delay is caused

by ‘circumstances beyond the Commonwealth’s control and despite its due

diligence.’”   Id. (quoting Goldman, 70 A.3d at 879).              “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.”

Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa.Super. 2013)

(quotation omitted).       Further, “judicial delay is a justifiable basis for an

extension      of   time   if   the    Commonwealth         is   ready   to   proceed.”

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

(quotation omitted).

      Snyder argues that his trial commenced beyond the mechanical run

date and any adjustments thereto. According to Snyder, a number of trial

dates were available after his July 16, 2015 request to list his case for trial.

Snyder asserts that the Commonwealth has failed to show due diligence

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because it “offered no explanation as to why [Snyder]’s case was not tried

on any of those available dates.” Snyder’s Br. at 14.

      In its Rule 1925(a) opinion, the trial court found that while Snyder’s

trial did not occur before the mechanical run date, his trial occurred before

the adjusted run date. The trial court first determined that 422 days had

passed between the March 17, 2015 criminal complaint and Snyder’s May

25, 2016 trial.   The trial court then subtracted three periods of time: (1)

excludable delay of 14 days between April 26, 2015 and May 6, 2015 based

on defense counsel’s request to continue the preliminary hearing; (2) judicial

delay of 42 days between March 15, 2016 and April 26, 2016 based on the

trial court’s prior engagement in a two-day jury trial; and (3) excusable

delay of 29 days between April 26, 2016 and May 25, 2016 based on the

Commonwealth expert’s inability to appear for trial due to a medical

emergency.    After subtracting that delay from the 422 days between the

complaint and trial, the trial court determined that the Commonwealth had

complied with Rule 600 because 337 days had passed between the

complaint and trial. We agree.

      The mechanical run date of Snyder’s case was March 16, 2016, 365

days from the filing of the criminal complaint. The trial court correctly found

that the 14 days between April 26, 2015 and May 6, 2015 was excludable

time because “any continuance granted at the request of the defendant or

the defendant’s attorney” is excludable.    Commonwealth v. Brown, 875

A.2d 1128, 1135 (Pa.Super. 2005) (quoting Hunt, 858 A.2d at 1241). In

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addition, the trial court correctly found that the 29 days between April 26,

2016 and May 25, 2016 was excusable time. “It is well settled that ‘when a

witness becomes unavailable towards the end of the Rule [600] run date[

]due to illness, vacation, or other reason not within the Commonwealth’s

control, the Commonwealth is prevented from commencing the trial within

the requisite period despite due diligence, and an extension of time is

warranted.’”   Commonwealth v. Corbin, 568 A.2d 635, 638 (Pa.Super.

1990) (quoting Commonwealth v. Weaver, 525 A.2d 785, 788 (Pa.Super.

1987)). The record shows that, but for the expert’s medical emergency, the

Commonwealth was ready to try Snyder’s case on April 26, 2016.

      The trial court also correctly excused the 42 days between March 15,

2016 and April 26, 2016 as judicial delay. While both the Commonwealth

and Snyder were ready to try the case on March 15, 2016, the trial court

was still conducting a jury trial from March 14 that continued into March 15.

Because “no courtroom []or judge was available for [Snyder’s] trial,” court

administration moved Snyder’s case to April 26, 2016, which was “the next

available jury trial date.”   1925(a) Op. at 4.      We conclude that these

circumstances were not within the Commonwealth’s control and, as such,

the Commonwealth should not be punished for the delay.

      Snyder maintains that a Rule 600 violation occurred because the

McKean County Court Administrator testified that there were trial dates

available on March 28 and 29, 2016. We disagree. While we recognize that

a “trial court may be required to rearrange its docket . . . when judicial delay

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has caused a lengthy postponement beyond the period prescribed by the

prophylactic procedural rules” and a delay of over 30 days may trigger such

a rearrangement, we have stated that “[i]t would be ill-advised to require

courts to continually arrange and rearrange their schedules to achieve a rigid

accommodation of the deadlines imposed by Pennsylvania’s speedy trial

procedural rules.” Commonwealth v. Preston, 904 A.2d 1, 14 (Pa.Super.

2006) (internal quotation omitted). Further, it is well settled that “where a

trial-ready prosecutor must wait several months due to a court calendar, the

time should be treated as ‘delay’ for which the Commonwealth is not

accountable.” Commonwealth v. Mills, __ A.3d __, 2017 WL 2645649 at

*2 (Pa. June 20, 2017). Therefore, we conclude that the trial court did not

abuse its discretion in excusing the 42-day delay between March 15, 2016

and April 26, 2016.

     When we add these periods of excludable and excusable delay to the

mechanical run date, we find an adjusted run date of June 9, 2016. Because

the Commonwealth tried Snyder on May 25, 2016, we conclude the trial

court did not abuse its discretion in finding that no violation of Rule 600

occurred.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/2017




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