J-A24028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

BRUCE ASHTON

                            Appellee                 No. 3443 EDA 2014


                   Appeal from the Order of November 3, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0005493-2014


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 24, 2015

       In this case, the Commonwealth appeals the trial court’s November 3,

2014 order, which dismissed the Commonwealth’s prosecution of Bruce

Ashton for driving under the influence of a controlled substance (“DUI”), 75

Pa.C.S. § 3802(d), based upon the Commonwealth’s purported failure to

bring Ashton to trial within the applicable speedy trial time limits.     We

reverse the order, and we remand for trial.

       On August 23, 2013, Ashton was charged in Philadelphia with one

count of DUI, as noted above, and one count of DUI—general impairment.

75 Pa.C.S. § 3802(a).        On January 16, 2014, Ashton appeared before the

Philadelphia Municipal Court for trial on these two charges. Before trial, the
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A24028-15



Commonwealth        withdrew      the   DUI—general    impairment   count.   The

municipal court judge convicted Ashton of the DUI—controlled substances

count, which was Ashton’s second DUI conviction.1 On April 14, 2014, the

municipal court judge sentenced Ashton to ninety days to six months’

incarceration, and a concurrent two-year term of probation.

       On May 9, 2014, Ashton filed an appeal for a de novo trial in the Court

of Common Pleas of Philadelphia County. The de novo trial was scheduled

for July 18, 2014.           On that date, the Commonwealth requested a

continuance because the arresting officer could not appear for trial due to a

previously scheduled medical appointment.             The trial court granted the

continuance, and re-scheduled trial for November 3, 2014.

       On the trial date, Ashton filed a motion to dismiss the prosecution on

speedy trial grounds pursuant to Pa.R.Crim.P. 1013(G), which we discuss in

more detail infra.     The trial court heard argument from both sides on the

motion. Ashton argued that, pursuant to Rule 1013(G), the Commonwealth

was required to bring him to trial after his de novo appeal within 120 days.

Due to the Commonwealth’s request for a continuance, which was granted

by the trial court, trial on November 3, 2014 would have occurred beyond




____________________________________________


1
      The facts presented at trial in support of Ashton’s municipal court
conviction are immaterial to our disposition of this case. We will not recite
them here.



                                           -2-
J-A24028-15



the 120-day deadline. As such, Ashton maintained that the charges had to

be dismissed.

      The Commonwealth argued that the continuance was beyond its

control, because the arresting officer was unavailable due to a medical

appointment that was scheduled before the trial date had been set. The trial

court sided with Ashton, granted the motion, and dismissed the charges.

      On November 21, 2014, the Commonwealth filed a notice of appeal.

On the same date, the Commonwealth filed a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), even though the

trial court had not yet ordered the Commonwealth to do so. On February 2,

2015, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

      The Commonwealth raises a single question for our review:

      Whether the lower court erred in discharging [Ashton] under
      Pa.R.Crim.P. 600 by failing to exclude a Commonwealth
      continuance that had been granted because, as the docket
      states, a police officer witness was unavailable due to a medical
      appointment and the time to try [Ashton] had not expired?

Brief for the Commonwealth at 4.

      We begin with our standard of review for cases implicating Rule 1013’s

speedy trial rule.

      Our standard of review for evaluating claims brought pursuant to
      Rule of Criminal Procedure 1013 is the same as that applied to
      claims made under Rule of Criminal Procedure 600. The purpose
      of the rules is similar, and the case law applies equally to both.
      When considering any “speedy trial” claim, the proper scope of
      review is limited to the evidence on the record from the
      evidentiary hearing and the findings of the trial court. If the
      hearing court denied relief under Rule 1013, appellate courts

                                    -3-
J-A24028-15


      must view the facts in the light most favorable to the
      Commonwealth as the prevailing party. In assessing a Rule
      1013 issue, we are confined to determining whether the trial
      court committed an “abuse of discretion” in reaching its decision.

Commonwealth v. Preston, 904 A.2d 1, 9 (Pa. Super. 2006) (en banc)

(footnote and citations omitted).

      Pa.R.Crim.P. 1013 provides “[a] trial de novo in the Court of Common

Pleas shall commence within a period of 120 days after the notice of appeal

from the Municipal Court is filed. In all other respects the provisions of Rule

600 shall apply to such trials in the Court of Common Pleas.” Pa.R.Crim.P.

1013(G). Recently, in Commonwealth v. Lynch, 57 A.3d 120 (Pa. Super.

2012) (en banc), this Court set forth the principles that govern issues that

implicate Rule 1013(G), and by implication, Rule 600, as follows:

      Similar to Criminal Rule 600, Rule 1013 has excludable time and
      excusable delay:

         The first step in determining whether a technical violation
         of Rule 600 or Rule 1013 has occurred is to calculate the
         “mechanical run date.” The mechanical run date is the
         date by which trial must commence under the relevant
         procedural rule. In a municipal court case, the mechanical
         run date is ascertained by counting the number of days
         from the triggering event—e.g., the date on which the
         preliminary arraignment occurred or on which the criminal
         complaint was filed—to the date on which trial must
         commence under Rule 1013. The mechanical run date can
         be modified or extended by adding periods of time in which
         the defendant causes delay. It then becomes an “adjusted
         run date.”

         Rules 600 and 1013 take into account both “excludable
         time” and “excusable delay.” “Excludable time” is defined
         by Rule 1013 itself as any period of time during which a
         defendant expressly waives his rights under the Rule.
         Delays caused by the unavailability of the defendant or

                                     -4-
J-A24028-15


         counsel also are excludable, as are delays for continuances
         granted at the request of the defendant or counsel.
         “Excusable delay” is not expressly defined in either Rule
         600 or in Rule 1013, but the legal construct takes into
         account delays which occur as a result of circumstances
         beyond the Commonwealth’s control and despite its due
         diligence.

      Preston, 904 A.2d at 11 (citations omitted).                  The
      Commonwealth is entitled to an extension of time “upon a record
      showing that trial cannot be commenced within the prescribed
      period despite due diligence by the Commonwealth.”
      Pa.R.Crim.P. 1013(C)(1)(c). “Due-diligence is a fact-specific
      concept that is 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. Booze, 953
      A.2d 1263, 1273 (Pa. Super. 2008) (quotations and quotation
      marks omitted). “Judicial delay may justify postponing trial
      beyond the adjusted run date if the Commonwealth was
      prepared to commence trial prior to the expiration of the
      mandatory period but the court was unavailable because of
      ‘scheduling difficulties and the like.’” Preston, 904 A.2d at 14
      (citation omitted).

Lynch, 57 A.3d at 123-24.

      As noted earlier, our standard of review requires us to determine

whether the trial court has abused its discretion in granting Ashton’s motion.

The trial court did not engage in the required analysis set forth in Lynch.

Rather, the trial court determined the mechanical run date, observed that

the November 3, 2014 trial date was beyond that date, and then granted the

motion. See T.C.O. at 2-3. The court failed to consider whether the delay

constituted excusable time, or whether the Commonwealth acted with due

diligence. As such, the court’s decision misapprehended the applicable law,

and was an abuse of discretion.


                                    -5-
J-A24028-15



      On May 9, 2014, Ashton filed an appeal for a de novo trial. Per Rule

1013(G), the Commonwealth had 120 days to bring Ashton to trial. Thus,

the mechanical run date was approximately September 9, 2014. There were

no defense postponements. Thus, the adjusted run date is the same as the

mechanical run date.

      The trial originally was scheduled for July 18, 2014. However, because

the arresting officer had a previously scheduled medical appointment, the

Commonwealth         requested,   and   received,   a   continuance.     Trial   was

rescheduled    for    November     3,   2014,   which    was   well    beyond    the

mechanical/adjusted run date.       We must consider whether the delay was

excusable, and whether the Commonwealth nonetheless acted with due

diligence.

      As explained in Preston and Lynch, excusable delays are those that

occur as a result of circumstances beyond the Commonwealth’s control and

despite its due diligence. Here, it is undisputed that the arresting officer was

a necessary witness, and that the officer was unavailable because of a

medical appointment that was scheduled before the July 18, 2014, trial date

was set.     This event was not within the means of the Commonwealth to

control. It involved the personal life of a necessary witness, and it was an

event that was scheduled before a trial date was set.          Moreover, there is

nothing in the record to suggest that the Commonwealth did not act with

due diligence.       “Due diligence does not require perfect vigilance and

punctilious care, but rather a showing by the Commonwealth that a

                                        -6-
J-A24028-15



reasonable effort has been put forth.” Booze, supra. We observe nothing

in the record that would permit us to conclude that the Commonwealth did

not put forth a reasonable effort, particularly where the continuance was due

to an event that was beyond the control of the Commonwealth.                      The

relevant time period that caused the trial to be scheduled beyond the

applicable date was excusable.

       Lastly, we note that the only factor that the court considered in its

analysis was the fact that the record did not demonstrate that November 3,

2014, was the earliest possible available trial date. However, that is not the

relevant question. The analysis entails determining first the mechanical run

date, then the adjusted run date. Once that date is established, the court

then   must    ascertain   whether   any   time   that   is   attributable   to   the

Commonwealth is excusable time, and whether the Commonwealth acted

with due diligence.        Neither excusable time nor due diligence hinge

exclusively upon whether the Commonwealth sought the earliest possible

trial date at all times throughout the proceedings.            The fact that the

Commonwealth did not scour the judicial calendar for the first available trial

date does not mean, ipso facto, that the Commonwealth did not act with due

diligence.    Rather, the record demonstrates that the Commonwealth put

forth a reasonable effort to bring Ashton to trial, which is the standard for

due diligence.




                                      -7-
J-A24028-15



      The trial court not only reached the incorrect legal conclusion, but also

failed to consider a substantial portion of the relevant legal analysis.

Consequently, the trial court’s decision was an abuse of discretion.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2015




                                     -8-
