J-A13029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FELIX RAMOS                                :
                                               :
                       Appellant               :   No. 3634 EDA 2018

       Appeal from the Judgment of Sentence Entered November 29, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006110-2016


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 22, 2020

        Felix Ramos appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after a jury found him guilty

of indecent assault1 and aggravated indecent assault.2        On appeal, Ramos

asserts that the trial court erred in denying his pre-trial motion filed pursuant

to Pa.R.Crim.P. 600. Upon careful review, we concur with Ramos and are

constrained to vacate his judgment of sentence.

        This case stems from an incident that occurred in the back of a Wawa

parking lot at 9400 State Road in Philadelphia. The victim was walking into

the Wawa when she struck up a conversation with Ramos, during which Ramos

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3126.

2   18 Pa.C.S.A. § 3125.
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offered to obtain methamphetamine for her. N.T. Trial, 5/22/18, at 47-49.

Upon exiting the Wawa, the victim again encountered Ramos, who indicated

he was in possession of the drugs. Id. at 49. The victim walked with Ramos

across the Wawa parking lot to a wooded area. Id. at 50. There, Ramos

grabbed the victim and pulled her into an encampment, where the victim

assumed Ramos was living. Id. at 51. Ramos reached for the victim’s breasts

and tried several times to kiss her. Id. at 52-53. The victim told Ramos to

stop and that, if she had to have sex with him in order to obtain the drugs,

she “[didn’t] need to get high like this.” Id. at 51.

      Ramos would not let the victim leave and reached under her dress,

touched and licked her breasts, touched her vagina, and had the victim touch

his penis with her hand. Id. at 58, 59, 70-71. Finally, the victim indicated

that she would have sex with Ramos if he went to Wawa and got a condom.

When Ramos left to do so, the victim fled and sought help. Id. at 61-64.

      Police were called and the victim gave them a description of Ramos. Id.

at 66. After a radio flash was broadcast, Ramos was apprehended a few blocks

away. Id. at 31-32. The victim identified him as her assailant. Id. at 66.

DNA swabs taken from the victim’s breasts contained DNA consistent with that

of Ramos. N.T. Trial, 5/23/18, at 28, 33.

      Ramos was charged with aggravated indecent assault, indecent assault,

and simple assault. Trial commenced on May 21, 2018; prior to this, the court

heard argument on, and denied, Ramos’ Rule 600 motion to dismiss. On May

23, 2018, a jury convicted Ramos of all charges except simple assault. On

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November 29, 2018, the trial court sentenced Ramos to an aggregate term of

3½ to 7 years’ incarceration, followed by 2 years of probation. Ramos filed a

timely appeal, and both he and the trial court complied with Pa.R.A.P. 1925.

      Ramos challenges the court’s denial of his Rule 600 motion.              Our

standard of review of a Rule 600 determination is whether the trial court

abused its discretion. Commonwealth v. Solano, 906 A.2d 1180, 1186 (Pa.

2006). “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 . . . discretion is abused.” Commonwealth v. Wright, 961 A.2d

119, 142 (Pa. 2008) (citations omitted). “Our scope of review is limited to

the record evidence from the speedy trial hearing and the findings of the lower

court, reviewed in the light most favorable to the prevailing party”—here, the

Commonwealth. Solano, 906 A.2d at 1186.

      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.

Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa. Super. 2018).

      Rule 600 provides, in relevant part, as follows:


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      (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.

                                     ***

      (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 . . . 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 (emphasis added).

      To establish whether there has been a Rule 600 violation under

paragraph (A), a court must determine whether the delay is caused solely by

the Commonwealth when the Commonwealth has failed to exercise due

diligence.   Id., comment, citing Commonwealth v. Dixon, 907 A.2d 468

(Pa. 2006) and Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998). “[D]ue

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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.”            Commonwealth v.

Bradford, 46 A.3d 693, 701–02 (Pa. 2012).

      Periods of judicial delay—i.e., delay attributable to crowded trial dockets

or the unavailability of the court—are excludable from calculations under the

rule. Id. at 705. Trial courts must apply judgment in distinguishing between

delay attributable to the court and that which should be allocated to a party.

Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).

      Our review of the record provides the following timeline of this matter.

The complaint was filed against Ramos on June 7, 2016.               See Criminal

Complaint, 6/7/16. A preliminary hearing was held on June 23, 2016, at which

time Ramos was held for court. See Criminal Docket Entry 5. On August 16,

2016, a scheduling conference was held, at which time Ramos was given the

earliest possible trial date of June 12, 2017. See Criminal Docket Entry 31.

On the date scheduled for trial, upon joint request of the parties, trial was

continued until June 13, 2017 to enable defense counsel to review four DVDs

containing 30 hours of security camera footage, which the Commonwealth had

just turned over to the defense. See Criminal Docket Entry 40; N.T. Rule 600

Hearing, 5/21/18, at 4-5, 8.     On June 13, 2017, the defense requested a

continuance to further investigate the surveillance footage.         See Criminal

Docket Entry 48. Trial was scheduled for the next available date, January 16,

2018. See id. On that date, the defense again requested a continuance, this

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time to investigate recently-turned-over DNA evidence. See Criminal Docket

Entry 60; N.T. Rule 600 Hearing, 5/21/18, at 6, 8-9. Trial commenced on May

21, 2018, 713 days after the complaint was filed.

       The trial court found the following time excludable: (1) the 300 days

that elapsed between the August 16, 2016 scheduling conference and the first

available trial date of June 12, 2017, attributable to judicial delay; (2) the

one-day delay from June 12 to June 13, 2017 resulting from the joint request

for continuance to review video evidence; (3) 217 days from June 13, 2017

to January 16, 2018 resulting from the defense request for continuance to

further review video evidence;3 and (4) the 125 days between January 16,

2018 and May 21, 2018 resulting from another defense request for a

continuance to review DNA evidence. See Trial Court Opinion, 6/4/19, at 7-

8.

       At issue here are periods (1), (3) and (4) listed above. 4 As to the first

period—August 16, 2016 to June 12, 2017—Ramos argues that the time is not

excludable as judicial delay because, pursuant to Mills, supra, delay

attributable to the “normal progression of the case” does not constitute

____________________________________________


3 The trial court’s calculation excluded 213 days, from June 13, 2017 to
January 12, 2018. However, trial was actually scheduled to begin on January
16, 2018. See Criminal Docket, at 48. January 12, 2018 was the date on
which a pre-trial conference was scheduled. See id.

4The parties do not dispute that the 70-day period between the filing of the
complaint on June 7, 2016 and the scheduling conference held on August 16,
2016 is included in the Rule 600 calculation as attributable to the “normal
progression of the case.” Mills, 162 A.3d at 325.

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excludable delay unless the Commonwealth is “trial ready.” Brief of Appellant,

at 8.     Because Ramos claims the Commonwealth was not “trial ready”

throughout the pendency of the case, judicial delay cannot serve to exempt

the Commonwealth from its obligations under Rule 600.               See Brief of

Appellant, at 9.

        The Commonwealth counters that the trial court properly exercised the

discretion “explicitly permitted” by Mills in excluding this time as judicial

delay. Brief of Appellee, at 13. The Commonwealth asserts that it was, in

fact, prepared to proceed to trial, and the sole reason for the delay was

congestion in the court’s schedule. Id. at 14. The Commonwealth argues

that, if the time between the scheduling conference and the first trial date

were not excludable as judicial delay,

        then [Ramos] could never be tried at all, under any circumstances.
        More than the allotted 365 days . . . would have passed from the
        filing of the complaint to the first possible date for trial without
        the Commonwealth having postponed a single listing. Under
        [Ramos’] interpretation, Rule 600 would have been violated and
        all charges would have to be dismissed, even though there had
        been no delays attributable to the Commonwealth.

Brief of Appellee, at 16.

        We agree with the Commonwealth that this time was properly excluded

from the Rule 600 calculation as attributable to judicial delay. The docket

indicates that Ramos was given the earliest possible trial date at the August

16, 2016 scheduling conference.         This delay was not requested by the

Commonwealth and was entirely beyond the control of the Commonwealth.



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Further, there is nothing in the record to indicate that, at this point in the

proceedings, the Commonwealth had failed to exercise due diligence. See

Mills, supra. The court listed the case for the very first available date allowed

by its schedule and, as such, the intervening period is excusable as judicial

delay.

      Ramos argues that the second period of delay—from June 13, 2017 to

January 16, 2018—should have been charged to the Commonwealth because

it presented no evidence as to “when the assigned detective obtained the

videos or what efforts he undertook to do so.” Brief of Appellant, at 10. At

the Rule 600 motion hearing, counsel argued that the video evidence had been

“requested over and over and over again” since “day one at the bar of the

court.”   N.T. Rule 600 Hearing, 5/21/18, at 5.            Ramos argues that the

Commonwealth’s “unsupported hearsay assertion that [the detective] ‘[w]as

making ongoing efforts’ does not satisfy its due diligence obligation under Rule

600.” Id. at 10-11. Ramos argues that “delay caused by a representative of

the Commonwealth must be charged against the Commonwealth.” Id. at 12,

citing Commonwealth v. Minnich, 471 A.2d 869 (Pa. Super. 1984)

(laboratory analyst was representative of Commonwealth; therefore, delay

attributable to his faulty analysis chargeable to prosecution).                Ramos

highlights a statement from the prosecutor at the Rule 600 Hearing,

acknowledging    that   the   video    “had   been    passed     late”   due        to    a

“misunderstanding”      and   that    the   delay   “can    be   imputed       to        the




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Commonwealth, obviously, because it’s in the possession of police.” N.T. Rule

600 Hearing, 5/21/18, at 8.

       In response, the Commonwealth argues that it was “not at fault for the

detective failing to provide notice of the video evidence sooner, and was willing

to forego it and proceed to trial[.]” Brief of Appellee, at 20. Because the

video evidence was produced “at the first opportunity to do so,” and the

existence of the evidence was, in fact, “a surprise to the prosecutor,” the

Commonwealth argues it was duly diligent and the time was properly

excluded. Id. at 21.

       In concluding that this time was attributable to the defense, the trial

court stated that it “accepted the Commonwealth’s explanation that there was

nothing in [its] paperwork regarding video recordings and that they were

handed over at the first opportunity to do so.” Trial Court Opinion, 6/4/19, at

7-8.   The court’s cursory analysis, however, fails to address whether the

Commonwealth acted with due diligence in obtaining the video evidence in the

first instance.

       The incident in question occurred on June 6, 2016.            The police

investigation report, dated June 11, 2016, indicates that the assigned

investigating officer contacted Wawa to determine whether surveillance video

existed. Accordingly, the Commonwealth was aware of the possibility that

such evidence existed as of early June 2016. Defense counsel made numerous

requests for the video evidence. See N.T. Rule 600 Hearing, 5/21/18, at 5

(“[The video evidence] was requested over and over and over again.”). Yet

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the Commonwealth presented no evidence that it ever contacted the

investigating officer to request the video recordings or to inquire as to the

status of his inquiry. In a Rule 600 proceeding, it is the Commonwealth’s

burden to demonstrate, by a preponderance of the evidence, that it put forth

“reasonable effort.” Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa.

2010).

      In Commonwealth v. Taylor, 598 A.2d 1000 (Pa. Super. 1991), we

held that a defense continuance, requested in order to conduct an

investigation based on newly-received discovery, was properly charged to the

Commonwealth where the Commonwealth failed to act with due diligence in

obtaining the discovery materials from police.    There, the Commonwealth

made two follow-up requests to the police over a period of slightly more than

two months. In reversing the trial court’s finding of due diligence, we stated

that “[s]urely, the Commonwealth could have done more in its attempt to

secure the report from the police than merely requesting the report two or

three times.” Id. at 1002. We concluded that the failure to do more amounted

to a lack of due diligence. Id. See also Commonwealth v. Preston, 904

A.2d 1, 12 (Pa. Super. 2006) (“[I]f the delay in providing discovery is due to

either intentional or negligent acts, or merely stems from the prosecutor’s

inaction, the Commonwealth cannot claim that its default was ‘excusable.’”)

(emphasis added).

      Similarly, here, we do not find the Commonwealth’s efforts—or lack

thereof—to obtain the video evidence to have been reasonable based on the

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record before us.     More than one year passed between the date the

investigating officer requested the video surveillance evidence from Wawa and

the date the video evidence was passed to the defense. In that time, the

prosecution apparently made no efforts to ascertain the status of that request;

nor did the Commonwealth provide an explanation for the failure of the police

to act more diligently in obtaining the video. Accordingly, when, on the day

of trial, the assigned detective walked into the courtroom with four DVDs

containing 30 hours of video recording, it was unreasonable to expect defense

counsel to properly review and digest the evidence in the amount of time

provided by a day’s continuance—which, practically speaking, would have

been a time period of far less than 24 hours in which to review 30 hours of

video. When defense counsel—who was otherwise prepared to proceed to

trial—was compelled to ask for additional time to review the video, it was as

a direct result of the Commonwealth’s lack of due diligence in obtaining the

evidence and providing it to the defense. As such, the trial court improperly

excluded the ensuing 217-day delay from its Rule 600 calculation.

      We now turn our attention to the third disputed time period—between

January 16, 2018 and May 21, 2018—caused by the production of DNA

evidence within days of the second trial date.       Ramos asserts that the

Commonwealth failed to demonstrate that it acted with due diligence in

obtaining and handing over the DNA evidence.         Ramos points out that,

although he was swabbed for DNA testing in May of 2017, the results were

not handed over to the defense until just before the January 16, 2018 trial

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date. Ramos avers that the Commonwealth provided no explanation for this

“inordinately lengthy delay.”    Brief of Appellant, at 14.      Although the

Commonwealth argues that the delay is attributable to Ramos because he

failed to respond to its requests to appear to be swabbed, Ramos claims that

the Commonwealth made no attempt to obtain a DNA swab from him during

the eight months he was in custody, from June 7, 2016 to February 3, 2017.

Id.   Ramos further alleges the Commonwealth’s lack of due diligence in

obtaining the swab “was compounded by its failure, once it had a sample, to

hand over the DNA report to defense counsel until eight months later[,] on

the eve of the second scheduled trial date.” Id. at 14-15. Thus, as with the

video evidence, Ramos argues that the time attributable to his continuance

request to investigate the DNA evidence should be charged to the

Commonwealth.

      The Commonwealth argues that the delay was properly excluded

because “[t]he trial court determined that ‘the delay in getting a specimen of

DNA to test from [Ramos] was the fault of the defense.’” Brief of Appellee, at

24, quoting Trial Court Opinion, 6/4/19, at 8. The Commonwealth argued that

“there were concerted efforts made to obtain a DNA swab from [Ramos], who

was either reluctant to be swabbed or difficult to locate, and the swab was not

obtained until May 26, 2017[.]” Id. The Commonwealth further asserts that

“the delay was caused by [Ramos’] perceived need[]” to determine if a DNA

expert would be required, despite defense counsel having agreed to forego

DNA evidence at the time of the first trial listing.      Id.    As such, the

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Commonwealth argues that the time was properly excluded as a defense

continuance.

     Once again, we find the court’s summary conclusion that “the delay in

getting a specimen of DNA to test from [Ramos] was the fault of the defense,”

Trial Court Opinion, 6/4/19, at 8, to be unsupported by the record and utterly

lacking in the necessary inquiry into the Commonwealth’s exercise of due

diligence. Notably, the court failed to acknowledge that the Commonwealth

had nearly eight months—from the date Ramos was arrested on June 6, 2016

until his release on bail on February 3, 2017—to obtain a buccal swab from

him while he was in custody. The Commonwealth presented no evidence as

to any efforts to obtain a swab during that period; nor does the

Commonwealth provide an explanation for the 7½ month delay between the

time the swab was obtained and the date the results were finally turned over

to the defense on the eve of the second trial date.       The Commonwealth

attempts to shift blame for the delay to Ramos, arguing that he “was either

reluctant to be swabbed or difficult to locate[.]”   Brief of Appellee, at 24.

However, the Commonwealth first requested a swab in April 2017. See N.T.

Rule 600 Hearing, 5/21/18, at 6. Ramos provided a sample on May 26, 2017.

Accordingly, even assuming Ramos actively avoided providing a sample, he

was responsible for less than two months of delay—delay that could have been

avoided had the Commonwealth exercised diligence by obtaining a sample

while Ramos was in its custody for nearly eight months.




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       The Commonwealth also attempts to deflect responsibility for the delay

to defense counsel’s agreement at the first trial listing to forego DNA evidence.

However, for reasons not evident from the record, and despite defense

counsel’s prior agreement, the Commonwealth chose to proceed with DNA

testing. Having opted to go forward with DNA analysis, the Commonwealth

was required to provide the results of the testing to the defense.          See

Pa.R.Crim.P. 573(B)(1)(e) (mandatory pretrial discovery rules require

Commonwealth to disclose, inter alia, any results or reports of scientific tests

within possession or control of prosecutor). When the Commonwealth—for

the second time—produced key evidence on the very eve of trial, the defense

was entitled to a reasonable period of time to review the evidence and

investigate its options in response thereto. Accordingly, the ensuing delay

was properly chargeable to the Commonwealth as a result of its delay in

producing mandatory discovery. See Taylor, supra; Preston, supra.

       We have determined that the trial court improperly excluded a total of

342 days from its Rule 600 calculation. Adding to that sum the 70 undisputed

includable days between the filing of the complaint and the first scheduling

conference brings the Rule 600 calculation to 412 days—47 days in excess of

the 365-day period provided for in Rule 600. Accordingly, we are constrained

to vacate Ramos’ judgment of sentence and discharge him.5

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5 We are cognizant of the dual purposes underpinning Rule 600—i.e., the
protection of society, as well as of an accused’s speedy trial rights. We do not



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       Judgment of sentence vacated; Appellant discharged.            Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/20




____________________________________________


take lightly the nullification of a duly entered jury verdict. However, where
the Commonwealth’s sustained lack of due diligence over the pendency of a
relatively uncomplicated prosecution deprives a defendant of his right to a
speedy trial under our rules of court, we are left with no choice but to vindicate
that right, unfortunately at the expense of society’s right to effective
prosecution of criminal cases. The Commonwealth can and must do better.

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