J-S76009-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

NEIL ANDREW NEIDIG

                           Appellant                  No. 2135 MDA 2012


       Appeal from the Judgment of Sentence entered October 18, 2012,
          in the Court of Common Pleas of Northumberland County,
             Criminal Division, at No(s): CP-49-CR-0000756-2011
                         and CP-49-CR-0000295-2012

BEFORE: ALLEN, LAZARUS, and FITZGERALD, JJ.*

CONCURRING STATEMENT BY FITZGERALD, J.: FILED FEBRUARY 03, 2015

        I respectfully disagree with the majority’s conclusion that the

Commonwealth commenced trial within 365 days of the filing of the

complaint.      However, for the reasons that follow, I concur in the

determination that Appellant was not entitled to relief on his Rule 600 claim.

        The underlying criminal complaint in CR-756-2011 was submitted to,

and accepted for filing by, the magisterial district court on June 20, 2011.

That same day, the magisterial district judge issued process under which

Appellant remained in custody after failing to post bail.      The complaint,




*
    Former Justice specially assigned to the Superior Court.
J-S76009-13


however, was not stamped and docketed as filed in the Court of Common

Pleas until July 26, 2011.

      Although the majority and the trial court apply the July 26, 2011 filing

date for their Rule 600 analyses, I would hold the start date for Rule 600 is

the filing of the complaint that begins the criminal proceeding.         See

Pa.R.Crim.P. 600(G) & cmt. (“It is intended that ‘complaint’ also includes

special documents used in lieu of a complaint to initiate criminal proceedings

such as criminal proceedings instituted by a medical examiner or coroner”),

rescinded & replaced by Pa.R.Crim.P. 600(A)(2)(a) & cmt., eff. July 1,

2013;1 Commonwealth v. Mitchell, 372 A.2d 826, 829 (Pa. 1977)

(discussing question of “when is a complaint deemed filed” for purposes of

Rule 1100, noting “in the situation where a complaint is presented to a court

and a warrant issued, the criminal proceedings begin with the presentation

of the complaint to the court[,]” and holding “it is clear that Rule 1100

contemplates the commencement of the running of the mandatory period at

the point criminal proceedings are initiated”); see also Pa.R.Crim.P. 504-

509 (discussing institution of proceedings by “filing” complaint with

appropriate issuing authority).

      Thus, I would conclude the complaint was “filed” on June 20, 2011, for

the purposes of Rule 600, and the mechanical run date expired 365 days


1
  The provisions and comments are substantially similar in the both the
current and former versions of Rule 600, as well as former Rule 1100.



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later, on June 19, 2012.        See Pa.R.Crim.P. 600(G), rescinded eff. July 1,

2013.       Trial, for the purposes of Rule 600, commenced on July 9, 2012,

when a jury was selected. See Commonwealth v. Kluska, 399 A.2d 681,

682 (Pa. 1979); Pa.R.Crim.P. 600, cmt. (discussing commencement of trial),

rescinded eff. July 1, 2013.          Thus, there was a twenty-day delay from

expiration of the mechanical Rule 600 run date and the commencement of

trial.

         Unfortunately, the trial court did not address this prima facie violation

of former Rule 600(G). Therefore, the court did not render specific findings

of   fact    regarding   excludable    or    excusable    time,   but   assumed   the

Commonwealth’s view of the record was correct. However, Appellant fails to

demonstrate that the court erred in its assumption that more than eighty

days were attributable to his inability to obtain counsel after this matter was

transferred to the Court of Common Pleas.                Because Appellant has not

demonstrated error in that calculation, I would discern no basis to disturb

the court’s assumption and conclude that those eighty days did not run

against the Commonwealth.          Accordingly, I would conclude Appellant was

not entitled to discharge under former Rule 600(G).

         Therefore, I concur.




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