J-S68035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH REED                                 :
                                               :
                       Appellant               :   No. 641 WDA 2018

              Appeal from the Judgment of Sentence April 17, 2018
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0001246-2014


BEFORE:      SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 07, 2019

        Appellant, Keith Reed, appeals from the judgment of sentence of twenty

to forty years of confinement, which was imposed after his jury trial conviction

for conspiracy to commit murder of the third degree.1 We affirm.

        On March 30, 2014, Appellant conspired with Joshua Cambric and

Jeremy Woodard in the shooting death of Tony Phillips in the parking lot of

Edder’s Den, a bar in Johnstown, Cambria County.           The Johnstown Police

Department filed a written criminal complaint against Appellant on April 4,

2014, and arrested him ten days later.




____________________________________________


* Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 903; 18 Pa.C.S. § 2502(c).
J-S68035-18


       On October 9, 2014, the Commonwealth filed a motion to consolidate

the trials of all three conspirators, which the trial court denied. On January

12, 2015, the Commonwealth filed a notice of appeal to this Court from the

order denying consolidation, along with a certification pursuant to Pa.R.A.P.

311(d)2 that the trial court’s order denying consolidation “will terminate or

substantially handicap the prosecution.” Notice of Appeal, 1/12/2015. This

Court quashed the Commonwealth’s appeal, explaining:

       While the Commonwealth’s good faith certification under Rule
       311(d) is entitled to some deference, this Court need not accept
       its good faith certification in every case. . . . Here, the
       Commonwealth is free to seek conviction on all counts, against
       each defendant, in three separate trials. Therefore, denial of the
       motion for joinder does not terminate or substantially handicap
       the prosecution and is not appealable under Rule 311(d).

Commonwealth v. Woodard, 136 A.3d 1003, 1006-07 (Pa. Super. 2016)

(quoting, in part, Commonwealth v. Wright, 99 A.3d 565, 568 n.1 (Pa.

Super. 2014)).3 The Commonwealth sought review with our Supreme Court,

which was denied on October 13, 2016. Commonwealth v. Woodard, 158

____________________________________________


2 “In a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution.”
Pa.R.A.P. 311(d).
3 Although we would normally label the prior decision “Reed I,” the prior panel
of this Court consolidated the appeals involving Reed and his co-defendants,
Woodard and Cambric. Woodard, 136 A.3d at 1004 n.1. Because the appeal
involving Woodard was the first one docketed in this Court, it is hereinafter
referred to as “Woodard.”



                                           -2-
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A.3d 1242 (Pa. Oct. 13, 2016) (table). The court of common pleas received

the certified record on November 4, 2016.

       On December 21, 2016, Appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P.     600(D)(1)     (“Rule    600     Motion”),   contending    that   “[t]he

Commonwealth had violated Pa.R.Crim.P. 600(A)(2)(a)” by failing to begin his

“trial within 365 days of the commencement of the charges. . . largely due to

an improper appeal[.]”        Rule 600 Motion, 12/21/16, at 5.4           The Rule 600

Motion continued that “the Commonwealth . . . cannot be said to have

exercised due diligence.” Id. at 7.5

       On January 6, 2017, the trial court held a hearing on the Rule 600

Motion, during which Appellant argued that the Commonwealth “appealed in

bad faith.” N.T., 1/6/17, at 3; see also id. at 4-5 (trial court confirming with

Appellant that “the appeal from the denial of that [consolidation] motion was



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4 Rule 600(A)(2)(a) states: “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(D)(1) provides:

       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, or the defendant if unrepresented, 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.
5The Rule 600 Motion does not suggest a date by which Appellant’s trial should
have commenced. See generally Rule 600 Motion, 12/21/16.


                                           -3-
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in bad faith is what you are trying to say,” and “you are saying . . . that the

Commonwealth’s appeal was from [an] interlocutory order and therefore was

done in bad faith”).

       After additional hearings on the Rule 600 Motion and several other pre-

trial matters, the trial court denied the Rule 600 Motion on February 1, 2017.

In its March 15, 2017 opinion, the trial court explained it calculated that only

225 days had accumulated since commencement of this action by complaint,

with all other time excludable or excusable. Trial Court Opinion, filed March

15, 2017, at 20. The trial court consequently determined the final Rule 600

run date, i.e. the date by which trial must commence, to be June 21, 2017,6

which had not yet occurred as of its order dated February 1, 2017. Id. In

calculating the final run date, the trial court did not include the days from

January 12, 2015, when the Commonwealth filed its appeal, to November 4,

2016, when the certified record was remanded, because it found that the

Commonwealth had not acted in bad faith when it filed its interlocutory appeal.

Id. at 12, 16-18, 20.7




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6 The 365 days allowed by Pa.R.Crim.P. 600(A)(2)(a) minus the 225
accumulated days equals 140 days. 140 days after February 1, 2017, was
June 21, 2017.
7Time is “computed as to exclude the first and include the last day of such
period.” 1 Pa.C.S. § 1908.



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       Appellant’s trial commenced on March 6, 2018.8 The Commonwealth

presented multiple witnesses, including two eyewitnesses to the shooting, and

video surveillance from March 30, 2014. On March 7, 2018, a jury convicted

Appellant of conspiracy to commit murder of the third degree, but acquitted

him of murder of the first degree, murder of the third degree, voluntary

manslaughter, and conspiracy to commit murder of the first degree. N.T.,

3/7/18, at 103-04; Verdict Slip, dated 3/7/18, filed 3/14/18, at 1-2.9

Appellant did not file any post-trial motions.

       On April 17, 2018, the trial court sentenced Appellant to an aggregate

of twenty to forty years of confinement. At the conclusion of his sentencing

hearing, Appellant and his counsel signed a document informing Appellant of

his post-sentence rights, including his right to file post-sentence motions.

Post-sentence Mot. Instrs., 4/17/18; see N.T., 4/17/18, at. The trial court

also verbally reviewed Appellant’s post-sentence rights on the record,

including his right to file a post-sentence motion. Id. at 15-17. The trial court

____________________________________________


8 The total number of calendar days that elapsed between the filing of the
criminal complaint on April 4, 2014, and the commencement of Appellant’s
trial on March 6, 2018, was 1,432 days, which is greater than the 365 days
allotted by Pa.R.Crim.P. 600(A)(2)(a). However, as explained infra, Appellant
only challenges the 661 days from January 12, 2015, to November 3, 2016.
Appellant’s Brief at 29.
9For the counts of murder of the first degree, murder of the third degree, and
voluntary manslaughter, Appellant was charged as an accomplice. N.T.,
3/7/18, at 103. Conspiracy to commit voluntary manslaughter was also listed
on the verdict slip, but neither “guilty” nor “not guilty” was selected. Verdict
Slip, dated 3/7/18, filed 3/14/18, at 2.


                                           -5-
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explicitly stated: “It is not necessary that issues raised on appeal were also

raised in a post-sentence motion so long as they were preserved by motion or

objection before or during the sentencing hearing or in this case trial.” Id. at

17. Appellant did not challenge the discretionary aspects of his sentence at

sentencing or file any post-sentence motions.

      On April 24, 2018, Appellant filed this timely direct appeal and

simultaneously filed the following statement of errors complained of on

appeal:

      The Appellant, KEITH REED, by and through his Court-Appointed
      Undersigned Counsel, filed the following Concise Statement of
      Matters Complained Of, pursuant to Rule 1925(b) of the
      Pennsylvania Rules of Appellate Procedure in regards to his
      appealing to the Superior Court of Pennsylvania, the Judgment of
      Sentence which was entered against him on April 17, 2018.
      Accordingly, the Appellant is raising the following issues on
      appeal:

          1. The Appellant’s conviction for one count of Criminal
          Conspiracy to Commit Third Degree Homicide was against
          the weight and sufficiency of the evidence presented at trial
          by the Commonwealth.

          2. The Appellant’s sentence was excessive in light of the
          evidence presented at trial, as well as the lack of prior felony
          convictions on the Appellant’s record as an adult.

          3. The Trial Court erred in denying the Appellant’s Motion to
          Dismiss All Charges With Prejudice Pursuant to Pennsylvania
          Rule of Criminal Procedure 600(D)(1).

Rule 1925(b) Concise Statement of Matters Complained of, 4/24/18. The trial

court entered its opinion pursuant to Pa.R.A.P. 1925(a) on July 5, 2018.

      In his brief to this Court, Appellant now presents the following issues for

our review:


                                       -6-
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      1.    The Appellant’s sentence was excessive in light of the
      evidence presented at trial, as well as the lack of prior felony
      convictions on the Appellant’s record as an adult.

      2.   The Appellant’s conviction for one count of Criminal
      Conspiracy to Commit Third Degree Homicide was against the
      weight and sufficiency of the evidence presented at trial by the
      Commonwealth.

      3.    The Trial Court erred in denying the Appellant’s Motion to
      Dismiss All Charges With Prejudice Pursuant to Pennsylvania Rule
      of Criminal Procedure 600(D)(1).

Appellant’s Brief at 7.

      Appellant first challenges the discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, w]e conduct a four-
      part analysis to determine: (1) whether appellant has filed a
      timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
      the issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence, see Pa.R.Crim.P. 720;
      (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f);
      and (4) whether there is a substantial question that the sentence
      appealed from is not appropriate under the Sentencing Code, 42
      Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted).

      Although Appellant filed a timely notice of appeal and his appellate brief

contains a separate Pa.R.A.P. 2119(f) section, he did not properly preserve

his challenge to the discretionary aspects of his sentence either at sentencing

or in a motion to reconsider and modify sentence. Thus, Appellant’s first issue

raised on appeal is waived. See Manivannan, 186 A.3d at 489.




                                     -7-
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       Appellant next contends that his conviction was against the weight of

the evidence.      Appellant’s Brief at 20-21.10   As a preliminary matter, a

challenge to the weight of the evidence must be preserved by a motion for a

new trial. Pa.R.Crim.P. 607(A). The Rule provides:

       A claim that the verdict was against the weight of the evidence
       shall be raised with the trial judge in a motion for a new trial:

          (1) orally, on the record, at any time before sentencing;

          (2) by written motion at any time before sentencing; or

          (3) in a post-sentence motion.

Id. “The purpose of this rule is to make it clear that a challenge to the weight

of the evidence must be raised with the trial judge or it will be waived.”

Pa.R.Crim.P. 607, Comment. “If an appellant never gives the trial court the

opportunity to provide relief, then there is no discretionary act that this Court

can review.” Commonwealth v. Rhechiid Jones, 191 A.3d 830, 835 (Pa.

Super. 2018). A claim challenging the weight of the evidence generally cannot

be raised for the first time in a Rule 1925(b) statement. Commonwealth v.

Sherwood, 982 A.2d 483, 494 (Pa. 2009). “Failure to properly preserve the

claim will result in waiver, even if the trial court addresses the issue in its



____________________________________________


10 Although Appellant combines his weight of the evidence and sufficiency of
the evidence claims in his statement of questions involved in his brief pursuant
to Pa.R.A.P. 2116, he differentiates between his weight and sufficiency claims
in the argument section of his brief pursuant to Pa.R.A.P. 2119. Appellant’s
Brief at 20-21 (weight), 21 (sufficiency). Thus, we have addressed these
claims separately.


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opinion.”   Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super.

2014) (quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.

2012)).

       Here, Appellant failed to challenge the weight of the evidence before the

trial court in either an oral or written motion for a new trial. See Pa.R.Crim.P.

607(A). Instead, Appellant raised his weight claim for the first time in his Rule

1925(b) statement. See Sherwood, 982 A.2d at 494. Hence, Appellant’s

second issue on appeal is also waived. See Pa.R.Crim.P. 607(A); Sherwood,

982 A.2d at 494; Rhechiid Jones, 191 A.3d at 835; Thompson, 93 A.3d at

490.

       Next, Appellant challenges the sufficiency of the evidence to support his

conviction. Appellant’s Brief at 21. “In order to preserve a challenge to the

sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement

must state with specificity the element or elements upon which the appellant

alleges that the evidence was insufficient.” In re J.G., 145 A.3d 1179, 1189

(Pa. Super. 2016) (quoting Commonwealth v. Garland, 63 A.3d 339, 344

(Pa. Super. 2013)).

       In his Rule 1925(b) statement, reproduced in its entirety above,

Appellant does not state with specificity the element or elements upon which

he alleges that the evidence was insufficient. Rule 1925(b) Concise Statement

of Matters Complained of, 4/24/18, at ¶ 1. Appellant has therefore failed to




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preserve his challenge to the sufficiency of the evidence. See In re J.G., 145

A.3d at 1189.

       Assuming, arguendo, Appellant has preserved his challenge to the

sufficiency of the evidence, we conclude his challenge merits no relief. After

a thorough review of the record, the briefs of the parties, the applicable law,

and the well-reasoned opinion of the Honorable Linda Rovder Fleming, we

conclude the trial court opinion dated July 5, 2018, comprehensively discusses

and properly disposes of Appellant’s challenge to the sufficiency of the

evidence. See Trial Court Opinion, filed July 5, 2018, at 3–9.11

____________________________________________


11 The Commonwealth’s evidence included multiple witnesses. Trial Court
Opinion, filed July 5, 2018, at 4-9 (citing Commonwealth’s Exs. 4-6); N.T.,
3/6/18, at 47-49, 51-53, 60, 63, 65-69 (Phillips’s aunt testified that Appellant
came to Phillips’s apartment looking for Phillips and that Appellant and Phillips
left together), 75-85 (eyewitness to shooting), 92-105 (eyewitness to
shooting; also saw Appellant in Edder’s Den after shooting, without a drink
and not near the beer coolers; testified that, immediately after patrons heard
about shooting in parking lot, Appellant glanced around and left), 109 (witness
who knew Appellant for at least twenty years confirmed seeing him at Edder’s
Den on the night of the shooting), 111-13 (Appellant asked same witness if
she “saw anything” before he left), 129-32 (police recovered firearm), 191-
92 (beer purchased by Appellant earlier in day found in Woodard’s vehicle);
N.T., 3/7/18, at 4-17 (describing video surveillance collection)).

The Commonwealth also presented video surveillance depicting the actions of
the conspirators immediately prior to and after the shooting, including: the
conspirators together at a different bar, Fairfield Avenue Lounge (“Fairfield”),
less than ten minutes before Appellant went to Phillips’s home; the
conspirators leaving Fairfield together in Woodard’s automobile; Appellant
exiting Woodard’s car before entering Phillips’s apartment building; Woodard’s
vehicle circling the block until Appellant and Phillips left apartment building
together; and, shortly after the shooting, Cambric at the location where the
firearm was later recovered. Id. at 5-6, 8-9 (citing Commonwealth’s Exs. 19-



                                          - 10 -
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       Finally, Appellant contends that the trial court erred in denying his Rule

600 Motion. “[P]rompt-trial rulings are reviewed by the appellate courts for

an abuse of discretion.” Commonwealth v. Barbour, 189 A.3d 944, 953

(Pa. 2018) (quoting Commonwealth v. Mills, 162 A.3d 323, 325 (Pa.

2017)).

       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.


____________________________________________


20; N.T., 3/7/18, at 14-24).         The video surveillance corroborated witness
testimony.

The evidence was thus sufficient to establish the elements of conspiracy to
commit murder of the third degree: (1) Appellant entered into an agreement
with Cambric and Woodard to murder Phillips, where Appellant would lure
Phillips to Edder’s Den, Cambric would shoot him, and Woodard would drive
the “getaway” vehicle; (2) the conspirators shared the criminal intent to
murder Phillips, acting with malice by luring Phillips to Edder’s Den to be
murdered; and (3) the “overt act . . . in furtherance of the conspiracy” was
(a) Appellant luring Phillips into Edder’s Den or (b) Cambric shooting Phillips.
Id. at 9; see Chambers, 188 A.3d at 409–10 (elements of conspiracy);
Fisher, 80 A.3d at 1191 (elements of murder of the third degree, including
malice).


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      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.

Commonwealth v. Peterson, 19 A.3d 1131, 1135 (Pa. Super. 2011) (en

banc) (citations and internal ellipses omitted).

      “By the terms of Rule 600, the Commonwealth must bring a defendant

to trial within 365 days from the date upon which a written criminal complaint

is filed.” Barbour, 189 A.3d at 947. This first step “provides the mechanical

run date.”    Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super.

2018).   “A defendant, however, 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, 116 A.3d 122, 125 (Pa. Super. 2015).

      [T]he Rule 600 run date may be adjusted pursuant to the
      computational directives set forth in Subsection (C) of the Rule.
      For purposes of the Rule 600 computation, “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.” Id. 600(C)(1). “Any other periods of delay,”
      including those caused by the defendant, “shall be excluded from
      the computation.” Id.

Barbour, 189 A.3d at 947 (emphasis added).

      We add the amount of excludable time, if any, to the mechanical
      run date to arrive at an adjusted run date. . . .

      Rule 600[ ] encompasses a wide variety of circumstances under
      which a period of delay was outside the control of the
      Commonwealth and not the result of the Commonwealth’s lack of


                                     - 12 -
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       diligence. Any such period of delay results in an extension
       of the run date. Addition of any Rule 600[ ] extensions to the
       adjusted run date produces the final Rule 600 run date.

Bethea, 185 A.3d at 371 (quoting Commonwealth v. Wendel, 165 A.3d

952, 956 (Pa. Super. 2017)) (emphasis in original).

       Here, the parties do not dispute that Appellant’s trial did not commence

within the mechanical run date.12 Thus, we must determine the final Rule 600

run date.

       “Appellant submits that the Commonwealth failed to act with due

diligence in failing to bring him to trial within 365 days of the date of the

original complaint was filed.” Appellant’s Brief at 27. Appellant argues that

the trial court should have included the 661 days from January 12, 2015, to

November 3, 2016,13 in its calculation of the final run date. Id. at 29.14 These



____________________________________________


12Pursuant to Pa.R.Crim.P. 600(A)(2)(a), the mechanical run date normally
would be 365 days after the complaint was filed against Appellant on April 4,
2014. However, April 4, 2015, was a Saturday and, accordingly, the
mechanical run date was actually Monday, April 6, 2015, the first business day
thereafter. See 1 Pa.C.S. § 1908 (“When any period of time is referred to in
any statute, . . . [w]henever the last day of any such period shall fall on
Saturday or Sunday, . . . such day shall be omitted form the computation.”).
13 November 3, 2016, was the day before the certified record was remanded
to the trial court on November 4, 2016.
14 Appellant never filed a subsequent Rule 600 motion after the trial court
entered its order on February 1, 2017, and did not argue, pursuant to
Pa.R.Crim.P. 600 before the trial court or this Court, about the period of time
between the entry of the order on February 1, 2017, and the commencement
of trial on March 6, 2018. Accordingly, we make no determinations about this
interval.


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661 days – even before adding them to the trial court’s calculation of 225 days

– are “well beyond the time constraints of Rule 600” if not excludable or

excusable. Appellant’s Brief at 29.

       Essential to our review is the fact that the Commonwealth previously

filed an appeal, which this Court quashed due to the interlocutory and non-

appealable nature of the order from which it arose, followed by a petition for

allowance of appeal to the Supreme Court of Pennsylvania, which denied the

petition. We must therefore determine whether the Commonwealth was duly

diligent when filing the previous appeal and petition for allowance of appeal.

If so, the time during which the appeal and petition were pending was properly

excused from the computation of the time within which trial had to commence

pursuant to Pa.R.Crim.P. 600.

       Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998), remains the case

most analogous to the current matter. In Matis, the Commonwealth filed an

appeal of an interlocutory order, along with “a certification that the trial court’s

Order denying the Motion to Continue substantially impaired the prosecution.”

Id. at 15. This Court quashed the appeal. Id.

       Upon remand, the defendant filed a motion to dismiss the charges

against him pursuant to the speedy trial rule, which was then Rule 1100,15

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15     Rule 600 formerly was numbered as Rule 1100[.] . . . Rule 1100
       was amended and renumbered as Rule 600 on April 1, 2001.
       However, because much of the rule’s substance remained



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alleging that the duration of the appeal was chargeable to the Commonwealth.

Id. Matis’s motion to dismiss pleaded that the Commonwealth “had failed to

exercise due diligence in bringing [the defendant] to trial and filed a frivolous

appeal in bad faith from a non-appealable interlocutory order for the sole

purpose of delaying the trial.” Id.

       Although the trial court rejected the defendant’s assertion that the

Commonwealth acted in bad faith in filing the appeal, it concluded that the

Commonwealth was not duly diligent and granted Matis’s motion to dismiss.

Id. at 15 (trial court “at no time made a finding that the Commonwealth was

acting in bad faith”), 19 (“the trial court rejected [the defendant’s] claim that

the Commonwealth acted in bad faith when it filed [its] appeal”). After this




____________________________________________


       consistent throughout the amendment, [the appellate courts
       have] continued to apply our precedents interpreting former Rule
       1100 to the analogous provisions of Rule 600, sometimes
       employing Rule 600 nomenclature to facilitate discussion of Rule
       1100 precedents. See, e.g., Commonwealth v. Sloan, 589 Pa.
       15, 907 A.2d 460, 463 n.5 (2006) (explaining that, because “the
       substance of the sections of current Rule 600 and former Rule
       1100 under scrutiny are identical,” the Court would “for the sake
       of convenience and clarity ... substitute the applicable numbering
       nomenclature of Rule 600 for that of old Rule 1100”). Except
       where necessary to avoid confusion, we continue this practice
       herein, and will refer to the rule-based right, generally, as “Rule
       600.”

Barbour, 189 A.3d at 946 n.1. Hereinafter, we shall alter “Rule 1100” to
“Rule [600]” wherever it is referenced in an opinion predating the rule’s
renumbering.


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Court reversed, the Supreme Court of Pennsylvania granted the defendant’s

petition for allowance of appeal. Id. at 15.

      The Supreme Court explained that the central inquiry when determining

whether the time during which a pre-trial appeal is pending “stops the clock”

for the purpose of determining the time within which trial must be commenced

is: “If the Commonwealth files a pre-trial appeal in bad faith without the right

to do so, it fails to exercise due diligence pursuant to Rule [600].” Id. at 17

(citation omitted). The Court stated that it was “bound by the trial court’s

factual finding that the Commonwealth did not act in bad faith.” Id. at 15.

Thus, despite the fact that this Court had quashed the Commonwealth’s

interlocutory appeal, there was no evidence of bad faith on the part of the

Commonwealth in filing that interlocutory appeal, so the Commonwealth did

not “fail[] to exercise due diligence pursuant to Rule [600].” Id. at 17, 19.

The Matis Court hence concluded that the period of delay during the

interlocutory appeal “extend[ed] the period for commencement of trial

pursuant to Rule [600],” id. at 17, and agreed with this Court that the charges

against Matis should not have been dismissed. Id. at 19.

      In the case sub judice, as in Matis, the Commonwealth appealed an

interlocutory order and filed a certification that the order substantially

handicapped the prosecution, Notice of Appeal, 1/12/15, and this Court

quashed the appeal. Woodard, 136 A.3d at 1007. Upon remand, Appellant

filed a motion to dismiss the charges against him pursuant to Pa.R.Crim.P.


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600, alleging that the Commonwealth failed to exercise due diligence in

bringing him to trial. Compare Rule 600 Motion, 12/21/16, at 7, with Matis,

710 A.2d at 15. During a hearing on the Rule 600 Motion, Appellant argued

that the Commonwealth “appealed in bad faith.” N.T., 1/6/17, at 3; compare

id. at 3-5 with Matis, 710 A.2d at 15.16

       The trial court specifically found that the Commonwealth did not act in

bad faith. Trial Court Opinion, filed March 15, 2017, at 16. We are bound by

the trial court’s factual finding and, viewing the facts in the light most

favorable to the Commonwealth as the prevailing party, we are obliged to

recognize that the Commonwealth did not act in bad faith. See Matis, 710

A.2d at 15; Peterson, 19 A.3d at 1135. Accordingly, there was no proof that

the Commonwealth failed to exercise due diligence pursuant to Pa.R.Crim.P.

600. Hence, the period of delay during the Commonwealth’s appeal to this

Court “extend[s] the period for commencement of trial pursuant to Rule

[600].” Matis, 710 A.2d at 17.

       Although Matis did not address whether the time during which a

Commonwealth petition for allowance of appeal is pending constitutes

excusable time, other case law indicates that this timeframe would be

regarded no differently than the period during which the appeal was pending

____________________________________________


16Appellant does not specifically maintain that the Commonwealth acted in
bad faith; however, we consider Appellant’s broad reference to the
Commonwealth’s lack of due diligence to encompass an assertion that the
Commonwealth acted in bad faith.


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in this Court. See Commonwealth v. DeBlase, 665 A.2d 427, 431-32 (Pa.

1995) (“‘Excusable delay’ for purposes of Rule [600] review includes delay

caused by appellate review of pretrial motions”; the period of time the

Supreme Court took to consider an allocatur petition constituted “excusable

delay,” which does not count towards a Pa.R.Crim.P. 600 violation);

Commonwealth v. Ferri, 599 A.2d 208, 210 (Pa. Super. 1991) (finding

entire four-year delay incident to Commonwealth’s appeal was properly

excluded after this Court affirmed order severing charges and Supreme Court

denied Commonwealth’s petition for allowance of appeal); Commonwealth

v. Coleman, 491 A.2d 200, 201-02 (Pa. Super. 1985) (finding that

Commonwealth’s unsuccessful two-year interlocutory appeal to the Supreme

Court of Pennsylvania tolled the speedy trial rule time, when such appeal was

taken for tactical reasons and not for delay); see also Thomas Jones v.

Commonwealth, 434 A.2d 1197, 1200-01 (Pa. 1981) (concluding that delay

of two-and-one-half years during Commonwealth’s appeal to Supreme Court

of Pennsylvania and certiorari petition to United States Supreme Court, which

was denied, did not violate defendant’s right to “a speedy trial as guaranteed

by Rule [600,]” because timely appellate review “divested the trial court of




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authority to proceed” and thus acted “as an automatic supersedeas” of the

rule).17

       Accordingly, since the only delay at issue is the period of time the

Commonwealth’s appeal was pending, including the Supreme Court’s

consideration of the Commonwealth’s petition for allowance of appeal, such

lapse of time constituted excusable delay under Matis. See also DeBlase,

supra; Ferri, supra; Coleman, supra. In turn, since excusable delay is not

included in a Rule 600 calculation, no Rule 600 violation occurred in this case.

Consequently, we accept the trial court’s calculation of net-elapsed time of

225 days, which is fewer than the maximum of 365 days permitted by

Pa.R.Crim.P. 600(A)(2)(a).         The trial court did not abuse its discretion in

denying Appellant’s Rule 600 Motion. See Barbour, 189 A.3d at 953. Having

found no abuse of discretion in the Rule 600 determination and having found

all other claims waived, we affirm the judgment of sentence.18

       Judgment of sentence affirmed.



____________________________________________


17 Moreover, where “there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial rights of an
accused,” we are mandated to “construe[]” Pa.R.Crim.P. 600 “in a manner
consistent with society’s right to punish and deter crime.” Peterson, 19 A.3d
at 1135. Here, there was no evidence that the Commonwealth filed its petition
for allowance of appeal to the Supreme Court of Pennsylvania in an effort to
evade Appellant’s speedy trial rights.

18 Inasmuch as we have relied on the trial court’s July 5, 2018, opinion as it
relates to Appellant’s sufficiency of the evidence claim, we direct the parties
to attach a copy of the trial court’s opinion in the event of further proceedings.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2019




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