J-S26043-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

NADIM ZUHAIR JAOUNI

                        Appellant                  No. 1361 MDA 2016


           Appeal from the Judgment of Sentence July 20, 2016
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0006709-2013


BEFORE: BOWES, J., DUBOW, J., AND FITZGERALD,*J.

CONCURRING MEMORANDUM BY BOWES, J.:             FILED OCTOBER 20, 2017

     I agree with my learned colleagues that the Commonwealth failed to

prosecute Appellant in the time frame mandated by Pennsylvania Rule of

Criminal Procedure 600. I write separately to address the Commonwealth’s

assertion that the entire period from June 10, 2013, to June 18, 2015 does

not count for Rule 600 purposes.

     These charges were initiated on June 10, 2013 and therefore governed

by the former version of Rule 600. We calculate the mechanical run date by

adding one year to the complaint date, and arrive at an adjusted run date by

adding periods of excludable or excusable time.    See Commonwealth v.

Ramos, 936 A.2d 1097 (Pa.Super. 2007) (en banc).         Appellant concedes

that the fifty-six day period of time owing to his request to postpone the


* Former Justice specially assigned to the Superior Court.
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preliminary hearing was excludable time. I would also hold that the 642-day

period from September 18, 2013, when Appellant first requested admission

to the Alternative Rehabilitation Disposition (ARD) program, through June

18, 2015, was excludable time as Appellant continuously requested delays

up until that date for ARD and medical reasons.1 Adding these delays to the

earlier fifty-six days yields an adjusted run date of May 9, 2016, well before

his actual trial date.

       The Commonwealth maintains that “[A]ny and all delays from the filing

of the criminal complaint on June 10, 2013, and June 18, 2015 were

attributable to [Appellant]. This accounts for 739 days.” Commonwealth’s

brief at 16.     A similar claim was recently rejected by our High Court in

Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017). The dispute in Mills

was whether a 174-day period between the filing of the criminal complaint

and a status conference should be excluded or included for Rule 600

purposes.      Mills rejected a bright-line rule that the normal judicial

progression of a case constitutes delay.         “[W]e agree with Appellant that

____________________________________________


1 Appellant claims that only 628 days are properly attributed to him, yet
calculates the adjusted run date as falling in 2015. He arrives at this date
by adding 628 days to the date charges were initiated, not the mechanical
run date. See Appellant’s brief at 13. The Majority correctly notes that the
actual adjusted run date was in 2016, as Appellant delayed the proceedings
at his request for almost two years. Since the Commonwealth prevailed at
the trial court level, I will assume the more favorable calculation of May 9,
2016, as it does not affect the outcome.



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time attributable to the normal progression of a case simply is not ‘delay’ for

purposes of Rule 600.” Id. at 325. As Mills stated, the Commonwealth’s

position was equivalent to an argument that it has “leeway to proceed,

without   any   diligence,   to   cause    up   to   365   days    of   delay   in   the

commencement of any trial.” Id. at 324. The Commonwealth’s claim here

is similar.   By asserting that every day from the date the complaint was

initiated through June 18, 2015 plays no part in our Rule 600 analysis, the

Commonwealth avers that none of the time constituting the normal

progression of a case up until that point counts against it.               While it is

undeniable that Appellant caused significant delays, the Commonwealth’s

calculations are untenable.

      Moreover, the Commonwealth asserts that the trial judge properly

determined that it exercised due diligence from January 2016 through May

2016 because the toxicologist was unable to testify.              Yet the prosecutor

conceded at the Rule 600 hearing that the case “had never been scheduled,

so there was no opportunity to find [a new analyst] . . . because it would

have had to have been scheduled several weeks, if not a month or so in

advance[.]”     N.T. Rule 600, 7/12/16, at 8.        The trial court adopted that

position: “We agree it couldn’t have been scheduled when the lab tech was

unavailable.” Id. at 7. This was an abuse of discretion. The trial court’s

analysis erroneously applied a form of harmless error by holding that

Appellant’s trial would have been postponed had the Commonwealth

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actually scheduled the case.          That type of analysis is improper, since the

Commonwealth bears the burden of establishing it exercised due diligence.

It hardly comports with Rule 600 for the Commonwealth to claim its due

diligence would not have mattered.

       Finally, I recognize that the trial court’s ruling emphasized that this

matter was reassigned to several judges, resulting in judicial delay not

attributable to the Commonwealth.              Mills was likewise sensitive to this

concern, noting that “where a trial-ready prosecutor must wait several

months due to a court calendar, the time should be treated as ‘delay’ for

which the Commonwealth is not accountable.”                 Mills, supra at 325.

However, nothing in the record indicates that the Commonwealth was ready

for trial.   Herein, the docket and certified record reveals that the order of

June 18, 2015, which indicated that the parties were ready for a bench trial,

is directly followed by Appellant’s July 12, 2016 motion to dismiss.2 Thus, I

agree with the Majority that the Commonwealth failed to establish that it

kept track of its Rule 600 obligations.          See Commonwealth v. Browne,

____________________________________________


2  Mills does not answer whether the Commonwealth is obligated to ask an
unavailable trial judge to transfer the case to another courtroom with a less
clogged docket when a Rule 600 deadline is looming. I do not suggest that
the Commonwealth bore that burden in this case, yet it appears that this
case would not have proceeded at all but for Appellant’s motion seeking
dismissal. Certainly, a motion seeking transfer to another courtroom would
be beneficial in circumstances such as these, as our task would have been
greatly aided by record entries made at the times in question.



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584 A.2d 902, 906 (Pa. 1990) (“We hold that due diligence likewise imposes

on the government the duty to employ simple recordkeeping systems in

circumstances such as this.”).           We cannot simply assume that the

courtrooms were unavailable for some of these time periods.

      In this regard, Justice Wecht, joined by Justices Todd and Donohue,

issued   a   concurring   opinion   in   Mills   explaining   his   view   that   the

Commonwealth must first show due diligence before judicial delay is

relevant.

      [T]he Majority astutely observes that trial courts have the
      discretion to differentiate between the time that passes during
      the normal progress of a criminal case and the time that elapses
      when the court's calendar simply cannot accommodate a trial by
      the relevant date. My concern is that our trial courts too often
      make     these    judgments    without  first  considering   the
      Commonwealth's due diligence obligation.

      Characterization and delineation of the contested time periods is
      not always an easy task. Difficulty can arise, as it did in this
      case, when both “judicial delay” and the Commonwealth's due
      diligence obligation appear as options for the court. However,
      these two options are not equal, to be selected at the court's
      discretion. Nor can “judicial delay” be substituted for due
      diligence. Rather, due diligence must be proven by the
      Commonwealth, and assessed by the court, before “judicial
      delay” becomes a consideration in the time calculation for Rule
      600.

Id. at 326 (Wecht, J., concurring). That issue was present in this case. The

trial court selected judicial delay as an option to excuse the Rule 600




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violation, but the Commonwealth failed to prove its due diligence. 3 Tellingly,

the Commonwealth managed, after over a year of delay, to proceed to trial

just eight days after Appellant filed the motion to dismiss.             By all

appearances, the only reason this case proceeded to trial was the fact that

Appellant sought dismissal, with the Commonwealth offering ex post facto

justifications for why the case could not have proceeded at those earlier

times.   That hardly constitutes due diligence.    Hence, the Commonwealth

failed to meet its burden and the order denying Appellant’s motion must be

reversed.


       Judge Dubow joins this concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




____________________________________________


3  The trial judge began the hearing by noting, “I get these motions five
minutes before I come on the bench and somehow I am supposed to digest
the calendars for several years and come to some conclusion.” N.T. Rule
600, 7/12/16, at 2. Thus, the trial court’s finding of fact that the other trial
judges were unavailable was supported by speculation, not evidence.



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