J-S52008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
NEIL EUGENE SHUE,                         :
                                          :
                   Appellant              :           No. 448 MDA 2017

            Appeal from the Judgment of Sentence January 30, 2017
                 in the Court of Common Pleas of York County,
              Criminal Division, No(s): CP-67-CR-0008298-2015

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 23, 2017

        Neil Eugene Shue (“Shue”) appeals from the judgment of sentence

entered following his conviction of driving under the influence of alcohol or

controlled substance (general impairment) (“DUI”).1 We affirm.

        On October 24, 2015, Shue was arrested and charged with DUI.

Following a bench trial on stipulated facts, the trial court found Shue guilty

of DUI, and sentenced him to six months of intermediate punishment, “to

include 5 days of house arrest and 15 days of alcohol monitoring.”       N.T.,

1/30/17, at 3.     Shue filed a post-sentence Motion, requesting that his

sentence be stayed pending appeal, and that bail be set.       The trial court

granted Shue’s Motion.     Thereafter, Shue filed the instant timely appeal,

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.



1
    See 75 Pa.C.S.A. § 3802(a)(1).
J-S52008-17


      Shue now presents the following claim for our review:

      Whether the trial court erred in denying [] Shue’s Motion to
      Dismiss Pursuant to Pa.R.Crim.P. 600 where, over a period of
      464 days—only six of which are excludable—the Commonwealth
      made only two half-hearted attempts to bring Shue to trial: 1)
      listing the case for trial but canceling it to make way for a jury
      trial that ended up being a guilty plea; and 2) emailing the trial
      court’s chambers four days before the Rule 600 term elapsed to
      request a trial date[?]

Brief for Appellant at 4.

      Shue claims that the trial court improperly denied his Rule 600 Motion

to Dismiss, where the Commonwealth “showed only two half-hearted efforts

to try this case in more than a year’s time,” and had failed to carry its

burden in establishing      due   diligence.   Id.   at 19.   Regarding the

Commonwealth’s efforts to bring Shue to trial, Shue claims that on July 27,

2016, he was in court and ready to proceed. Id. at 20. At that time, the

clerk of the Honorable Christy H. Fawcett (“Judge Fawcett”) explained that

she and Judge Fawcett were never notified that the trial would proceed on

that date. Id. Only two matters were on Judge Fawcett’s schedule for that

date: a bench warrant, and a jury trial in “the Servas case[.]” Id. at 21.

Shue claims that the Commonwealth should have been aware that the

Servas case would not go to trial. Id. According to Shue, Servas’s counsel

previously had informed the Commonwealth that his client would plead

guilty in exchange for no jail time. Id. The prosecutor should have known

that there would be no trial, as the Commonwealth intended to make such

an offer to Servas. Id. In fact, once the offer was extended, no trial took


                                   -2-
J-S52008-17


place.      Id.    Shue also directs our attention to the fact that the

Commonwealth rejected two proposed rescheduled trial dates, based upon

its preference for a different judge. Id. at 22. Under these circumstances,

Shue argues, the Commonwealth did not exercise due diligence. Id.

         Regarding the second delay, Shue states that the Commonwealth

requested a trial date on October 24, 2016.     Id. at 23.   However, when

informed that trial could not be scheduled until January 2017, the

Commonwealth failed to inform the trial court that the proposed date would

be beyond the time allowed under Rule 600. Id. Shue argues that “it can

hardly be seen as due diligence to wait until four days before the Rule 600

term elapses to request a trial date, and then do nothing when told the next

available date is in three months.”     Id.   According to Shue, “with the

slightest exertion, the Commonwealth could have had the case tried in a

timely fashion.”     Id. at 24.   Shue also disputes the Commonwealth’s

explanation that the United States Supreme Court’s decision in Birchfield v.

North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016),2




2
  In Birchfield, the United States Supreme Court held that “a breath test,
but not a blood test, may be administered as a search incident to a lawful
arrest for drunk driving.” Birchfield, 136 S. Ct. at 2185, 195 L. Ed. 2d at
588. The Commonwealth asserts that the Birchfield decision “resulted in a
surplus of motions being filed to withdraw guilt[y] pleas previously
entered[,] and the filing of new motions to suppress, all requiring
consideration and court time from the bench.” Commonwealth’s Brief at 8
n.2.



                                  -3-
J-S52008-17


which changed the proceeding from a jury trial to a bench trial, caused a

delay. Brief for Appellant at 25.

      In its Opinion, the trial court set forth the relevant history underlying

this appeal and the applicable law, and concluded that Shue’s claim lacks

merit.   See Trial Court Opinion, 4/26/17, at 5-11; see also id. at 1-5

(detailing the relevant history underlying the appeal).    We agree with the

reasoning of the trial court, as set forth in its Opinion, and affirm on this

basis with regard to Shue’s claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/2017




                                    -4-
                                                              Circulated 08/11/2017 12:57 PM




      IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
                       PENNSYLVANIA
                    CRIMINAL DIVISION

 COMMONWEALTH                                                    .   ...   ;.!..


 OF PENNSYLVANIA

              v.                               ...

NEIL EUGENE SHUE
         Defendant


           STATEMENT        OF LOWER COURT PURSUANT TO
                              PA.R.A.P. 1925(a)


       AND NOW, this 25th day of April, 2017, upon receipt of notice that an

 appeal has been filed in this matter, and in consideration of the Concise

· Statement of Errors Complained Of on Appeal filed by Brian McNeil, Esquire,

on behalf of Neil Eugene Shue ("Defendant"), the undersigned files this

supplemental statement in support of its Order of January 27, 2017, denying

Defendant's Rule 600 Motion.


Factual and Procedural History:
       Defendant was arrested and charged on October 24, 2015, with Driving



                                           1
                                                                                      1
Under the Influence of Alcohol or Controlled Substance (DUI).                             Magisterial

District Judge (MDJ) Walter Groom scheduled Defendant's preliminary

hearing for November 18, 2015. The preliminary hearing was rescheduled by

MDJ Groom to December 14, 2015, as a result of a request by the defense.

(Tr. of 1/26/17, p.4.) The MDJ further rescheduled the matter to December

18, 2015. Defendant filed a waiver of arraignment on February 2, 2016.

        A pre-trial conference was held on April 14, 2016, at which time

counsel indicated to the Court that the matter would be ready for trial during

the May term of criminal trials which ran from May 9, 2016, through May 27,

2016. ~ jury trial was requested. The case was not placed on the trial list in

May.

        During this time period the York County Court was short-handed as a

result of two retirements and one judge on active duty in Afghanistan.                          On

July 5, 2016, two newly appointed judges were sworn onto the York County

Court; of the two, one was assigned to the criminal division. In an attempt to

reduce the caseload in the criminal division of the court, a number of jury and


I Defendant's second count of DUIwas dismissedpursuant to the decision in Birchfield v. North Dakota, 136
S.Ct. 2160, 195 L.Ed.2d560, 84 USLW 4493 (2016).
                                                       2
non-jury trials were assigned by court administration to the Honorable Christy

Fawcett. Defendant's case was assigned to Judge Fawcett and scheduled to be

heard on July 27, 2016, at 1 :30 p.m., however this information may not have

been communicated to Judge Fawcett or the clerk of court's office.      (Tr. of

1/27/17, pp. 8, 17, 19; Commonwealth Exhibit No. 1.) On the same date, a

jury trial was scheduled before Judge Fawcett for 9:30 a.m. (Tr. of 1/27/17,

pp. 10, 16.)   Leaming of the double scheduling, the district attorney's office

cancelled their witnesses for the non-jury trial. There was miscommunication

between the various offices, and in fact, the jury trial scheduled for the

morning resulted in a plea, however the Commonwealth did not learn of this
       '

event until after witnesses were excused. Attempts were made to reschedule

Defendant's trial in early August 2016, however the affiant was not available.

Ultimately, the case was returned to the undersigned's trial list.

      Defendant's case was not called to trial during the September 2016

criminal trial term, which ran from September 6, 2016, through September 23,

2016. The case was listed in the November criminal trial term that ran from

October 31, 2016, through November 18, 2016. However, on October 24,


                                           3
2016, the assistant district attorney notified the court's assistant by email

message that as a result of the Birchfield decision, the case was no longer

being called as a jury trial but needed to be scheduled as a non-jury trial. (See

Defendant's Exhibit No. 5.) There was no indication to the Court that Rule

600 was an issue.

       This Court's practice in 2016 was to give priority during trial weeks to

jury trials to best utilize jurors who had been called in to sit for trials. Based

upon the Court's schedule the dates of January 26 and 27, 2017, were

provided to counsel. Both counsel acknowledged the dates and the assistant

district .,attorney indicated that he would verify the date with the affiant. The

next communication this Court received on December 6, 2016, was an inquiry

from the assistant district attorney as to the scheduling order. Since no

confirmation of the affiant's availability had been received, the scheduling

order had not yet been filed. On December 7, 2016, this Court issued a

scheduling order, filed December 8, 2016, scheduling the non-jury trial for

January 26, 2017.

      On January 25, 2017, at 3:33 p.m., Defendant filed a Motion to Dismiss


                                            4
pursuant to Rule 600. The motion was heard by the Court on January 26,

2017, at the time originally scheduled for the bench trial. The motion was

denied by the Court. A stipulated bench trial was held on January 30, 2017,

after which Defendant was found guilty of DUI - general impairment and

sentencing. took place the same date. Post-sentence motion was filed by

Defendant on January 31, 2017, requesting that Defendant's sentencing be

stayed pending appeal and bail be set. A'hearing was held on February 16,

2017, at which time the post-sentence motion was granted .
                                       .
       On March 10, 2017, Defendant filed a Notice of Appeal. Defendant's

Statement
      ·,
          of Errors Complained Of was filed on March 30, 2017. Defendant.

asserts that this Court erred in finding that the Commonwealth exercised due

diligence in bringing his case to trial.



Discussion:
      Defendant's right to a speedy trial is codified in Pennsylvania Rule of

Criminal Procedure 600 (hereinafter "Rule 600"). The Rule sets out, in

relevant part:

      (A) Commencement of Trial; Time for Trial

                                           5
            (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.

Pa. R. Crim. P. 600.
      "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." Commonwealth v. Sloan,

2013 Pa. Super. 132, 67 A.3d 1249, 1252 (Pa. Super. Ct. 2013) (quoting

Commonwealth v. Bradford, 616 Pa. 122, 136, 46 A.3d 693, 701-02 (2012))
                                            6
(internal quotes omitted).

         The triggering event that commences Rule 600 is the filing of a criminal

complaint. Here the complaint was filed on October 24, 2015. The

mechanical run date for the commencement of trial under Rule 600 was

October 23, 2016.

         In Defendant's case, some delay occurred at various stages. According

to section (C)(l)           of Rule 600, only periods of delay "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."

         At time of hearing, Defendant acknowledged only one period of delay:

the preliminary hearing was rescheduled by MDJ Groom from November 18,

2015 to December 14, 2015, as a result of a request by the defense. (Tr. of

1/26/17, p.4.)2 This request resulted in a delay of 26 days. The adjusted run

date would be November 16, 2016.


2
 Defendant's l 925(b) Statement is somewhat confusing as it indicates 51 days of delay "at defense request''.
Adjusted run date would then be December 11, 2016.
                                                         7
       Second, the continuance of Defendant's preliminary hearing on

December 14, 2015, to December 18, 2015 caused a delay of four additional

days. The only evidence presented regarding the reason of this continuance

indicates that the delay was requested by the magisterial district judge. "Delay

by a district justice constitutes 'judicial delay,' and is not excludable time for

purposes of calculating the Rule 600 run date." Commonwealth v. Lynn, 2003

PA Super 11, ,i 10, 815 A.2d 1053, 1057 (Pa. Super. Ct. 2003) (emphasis

added). However, ''judicial delay can support the grant of an extension of the

Rule 600 run date" provided the Commonwealth shows it acted with due

diligen~e in bringing the case to trial. Commonwealth v. Trippett, 2001 PA

Super 260, ,i 18, 932 A.2d 188, 197 (Pa. Super. Ct. 2007); "If the delay

occurred as the result of circumstances beyond the Commonwealth's control

and despite its due diligence, the time is excluded." Comment to Pa. R. Crim.

P. 600; accord, Commonwealth v. Bradford, 616 Pa. 122, 46 A.3d 693 (2012).

This Court finds that the Commonwealth did not fail to act with due diligence

with respect to this delay.

      Moving to the issue raised by Defendant regarding the scheduling of his


                                           8
case for trial in July 2016 before Judge Fawcett, Defendant asserts that the

Commonwealth did not exercise due diligence in calling the case to trial on

the afternoon of July 27, 2016. Quite frankly, for the period just prior to the

July 2016 trial term, the perfect storm existed in York County. The Court in

its entirety was short three judges, the criminal bench was short a judge who

was serving active duty in Afghanistan, Birchfield was issued in late June

20163, and new judges were sworn in on July 5, 2016. Attempts were made to

utilize the services of newly appointed Judge Fawcett in the most efficient way

possible by pulling cases from four different judges on the criminal bench and

reassigning them to her. Unfortunately, communication among the clerk of

court's office, district attorney's office, court administration, defense counsel

and the judges' chambers was not the best. Vicky Polychronis testified that

although Defendant and defense counsel appeared on July 27, 2016, at 1:30

p.m. for a bench trial, the Court was not aware the matter had been scheduled.

(Tr. of 1/27/17, pp. 8, 17, 19.) There is no evidence that the

miscommunication was caused or in any way attributable to the district

3 The issuance of the Birchfielddecision alone resulted in a plethora of motions being filed to withdraw guilty
pleas previously entered and the filing of new motions to suppress, all requiring consideration and court time
from the bench.
                                                          9
attorney's office.

           Finally, Defendant asserts that the Commonwealth failed to exercise due

diligence in getting the bench trial rescheduled. The request to the Court by

email dated October 24, 2016, was within the adjusted run date. The

Commonwealth cannot be faulted for the Court's full calendar or its decision

to reserve trial weeks for jury trials.4 In current calendaring of bench trials,

they are immediately scheduled by this Court at time of pre-trial conference.

However, in Defendant's case, at his pre-trial conference on April 14, 2016,

the matter was listed as a jury trial. Not until October 24, 2016, was this Court

made aware that the matter was to be scheduled as a bench trial. So long as
             ·.

there has been no misconduct on the part of the Commonwealth in art 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.

Commonwealth v. Brown, 875 A.2d 1128, 1133-34 (Pa. Super. 2005). No

evidence was presented that the Commonwealth attempted to evade or delay

Defendant's right to a speedy trial.



4
    A matter that has since been revisited by this Court.
                                                            10
      Based upon this Court's findings, Defendant's right to a speedy trial

pursuant to Rule 600 has not been violated, and therefore his request for

dismissal was properly denied and his appeal should be dismissed.



                                       BY THE COURT,



                                       MARIA MUSTI COOK, .JUDGE




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