J-S22016-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NIARE LAMAR BROWN                          :
                                               :
                       Appellant               :   No. 2091 MDA 2019

       Appeal from the Judgment of Sentence Entered December 5, 2019
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001017-2018


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 29, 2020

        Niare Lamar Brown (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted him of burglary, criminal trespass,

resisting arrest, theft by unlawful taking, and receiving stolen property.1

Appellant claims that the Commonwealth violated his speedy trial rights under

Pennsylvania Rule of Criminal Procedure 600. We affirm.

        On June 10, 2018, Appellant broke into an apartment in Williamsport

and stole a wallet and video game console. The victim, upon seeing Appellant

— who was a stranger in her residence — confronted Appellant, who fled on

foot. The victim called the police and gave a description of Appellant. A police


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*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3503(a)(1)(ii), 5104, 3921(a), 3925(a).
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officer arrived on the scene shortly thereafter and saw an individual matching

the victim’s description standing nearby in an alley. Appellant ran when he

saw the uniformed officer, who gave chase and tackled Appellant to the

ground. Appellant resisted the officer’s attempts to place him in handcuffs.

        On June 11, 2018, the Commonwealth filed a criminal complaint

charging Appellant with the above crimes. Appellant’s arraignment took place

on June 23, 2018. Appellant pled not guilty, and the trial court placed the

case on the September 11, 2018 pretrial list, with call of the list scheduled for

September 25, 2018. However, as discussed below, the case remained on

the trial list for approximately one year.

        Appellant’s case was eventually placed on the backup list, with call of

the list scheduled to occur on April 29, 2019. Appellant’s case was chosen for

jury selection on May 1, 2019. On that date, however, Appellant’s counsel

was ill and unavailable.2,    3   Thus, the case was placed on the next call of the

list, with jury selection scheduled for the next trial term, beginning on August

13, 2019.

        On August 12, 2019, Appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P. 600. The trial court conducted an evidentiary hearing on the

motion on August 28, 2019, at which the Deputy Court Administrator for


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2 Notably, the next day, i.e., May 2, 2019, was the final day of jury selection
for that trial term.

3   Neither defense counsel nor the Commonwealth requested a continuance.

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Lycoming County testified. The trial court denied Appellant’s motion by an

opinion and order entered September 25, 2019.

      The matter proceeded to a non-jury trial on September 27, 2019, at the

close of which the trial court found Appellant guilty of all counts. On December

5, 2019, the court sentenced Appellant to an aggregate 3 to 6 years in prison.

He filed a timely notice of appeal, followed by a court-ordered Pennsylvania

Rule of Appellate Procedure 1925(b) concise statement.

      Appellant presents one question for our review:

      Did the lower court abuse its discretion in denying Appellant’s Rule
      600 motion to dismiss when the Commonwealth did not bring
      Appellant to trial within 365 days of the complaint and failed to
      prove it acted with due diligence in the face of avoidable delay?

Appellant’s Brief at 4 (capitalization omitted).

      Our standard of review is as follows:

            This Court reviews a ruling under Rule 600 pursuant to an
      abuse-of-discretion standard. An abuse of discretion is not a mere
      error in judgment but, rather, involves bias, ill will, partiality,
      prejudice, manifest unreasonableness, or misapplication of law.
      Additionally, when considering a Rule 600 claim, this Court must
      view the record facts in the light most favorable to the winner of
      the Rule 600 motion. It is, of course, an appellant’s burden to
      persuade us the trial court erred and relief is due.

            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 [a] crime and to deter those
      contemplating it. However, the administrative mandate of Rule
      600 was not designed to insulate the criminally accused from good

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      faith   prosecution    delayed     through    no   fault  of    the
      Commonwealth. 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. Martz, 2020 PA Super 104, **10-11 (Pa. Super. 2020)

(citations and ellipses omitted).

      Rule 600 provides in pertinent part as follows:

      (A) Commencement of Trial; Time for Trial

          …

          (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(A), (C).

            To summarize, the courts of this Commonwealth employ
      three steps in determining whether Rule 600 requires dismissal of

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     charges against a defendant. First, Rule 600(A) provides the
     mechanical run date.      Second, we determine whether any
     excludable time exists pursuant to Rule 600(C). We add the
     amount of excludable time, if any, to the mechanical run date to
     arrive at an adjusted run date.

Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018) (citation,

emphasis, and ellipses omitted).

     “Excludable time” is classified as periods of delay caused by the
     defendant. Pa.R.Crim.P. 600(C)(2). “Excusable delay” occurs
     where the delay is caused by circumstances beyond the
     Commonwealth’s control and despite its due diligence. Due
     diligence is a fact-specific concept that must be 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. Moore, 214 A.3d 244, 248-49 (Pa. Super. 2019) (case

citations and quotation marks omitted).

     A defendant is not automatically entitled to discharge under Rule 600

where, as here, trial starts more than 365 days after the filing of the

complaint. Id. at 248. Rather,

     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
     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. If the Commonwealth
     does not bring the defendant to trial on or before the final run
     date, the trial court must dismiss the charges.

Bethea, 185 A.3d at 371 (citation and brackets omitted). “In assessing a

Rule 600 claim, the court must exclude from the time for commencement of




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trial   any   periods   during   which    the   defendant   was    unavailable[.]”

Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super. 2004) (en banc).

        Here, Appellant argues that the trial court abused its discretion in

denying his Rule 600 motion because the Commonwealth failed to exercise

due diligence in bringing him to trial, and the court improperly found that

there were periods of excusable delay.          See Appellant’s Brief at 15-16.

According to Appellant, the Commonwealth never made any attempt to call

the case for jury selection. Id. at 20. Appellant further argues that at the

Rule 600 hearing, “the Deputy Court Administrator made a bare, unsupported

assertion that the Commonwealth was prepared for trial; no evidence supports

that the Commonwealth was diligent.” Id. at 17. Appellant concedes that his

defense counsel was ill and unavailable on May 1, 2019, the date on which

jury selection was scheduled. Id. at 13, 20. However, Appellant points out

that the Commonwealth never requested a continuance in response to defense

counsel’s unavailability on that date. Id. Appellant also maintains that jury

selection could have occurred the next day, May 2, 2019, which was “the final

day of jury selection [for that trial term], and thus the last opportunity to bring

[Appellant] to trial prior to the end of the Rule 600 period.” Id. at 21; see

also id. at 22 (asserting that because “five of the six cases scheduled for May

2[, 2019] ended up being guilty pleas, it seems that the court could have

called [Appellant] on May 2 had the Commonwealth simply made a request.”).

Finally, Appellant argues that there is “simply no evidence” that the delay was


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unavoidable, and “any [] conclusion [to the contrary] is pure speculation.” Id.

at 21.

         Conversely, and in support of its dismissal of Appellant’s Rule 600

motion, the trial court opined:

         [T]he circumstances occasioning the delay were entirely beyond
         the Commonwealth’s control. The Commonwealth was continually
         prepared to try the case. The case continued on the trial list. It
         was called for jury selection and trial within its adjusted Rule 600
         date[, which was June 11, 2019]. On the date that the case was
         set for jury selection, [i.e., May 1, 2019,] defense counsel was not
         available because he was ill. While [Appellant] is correct that
         [defense counsel] did not request a continuance, there is no
         evidence in the record that defense counsel notified the court or
         the Commonwealth that[,] given his illness, he would be available
         the next day[, May 2, 2019,] for jury selection. While [Appellant]
         is also correct that the Commonwealth did not contact the Deputy
         Court Administrator to request that the case be listed for jury
         selection [on May 2, 2019,] there were six cases already
         scheduled to be picked [on that date,] and only two judges [were]
         available. All of those cases had adjusted Rule 600 dates earlier
         than [that of Appellant]. All of those cases had counsel ready and
         willing to participate in jury selection. It would be entirely
         unreasonable[,] given the process of how cases are listed and
         called in Lycoming County[,4] for the Commonwealth to change[,
         i.e., in response to defense counsel’s unavailability on May 1,
         2019,] and essentially disrupt the entire jury selection process the
         next day.

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4 The trial court explained that “[c]onsistent with the court’s practice during
jury selection, cases are listed to be called[,] but once they begin to resolve,
the backup cases are selected for jury selection and trial. … It is the practice
of the court at the end of the original call of the list to advise counsel that any
case on the backup list is subject to being called.” Opinion and Order,
9/25/19, at 2-3; see also N.T., 8/28/19, at 19 (trial court advising defense
counsel: “Your office and you were notified that any case on the backup list
could be called. It was called on [May 1, 2019]. The Commonwealth was
ready to go. You were not ready to go.”).



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Opinion and Order, 9/25/19, at 4 (footnote added, paragraph break omitted).5

       Our review discloses that the trial court’s rationale is supported by the

law and the record. Appellant’s counsel contends that the Commonwealth was

required to “do everything in their power”6 to ensure that the case was

brought to trial; however, this is not the applicable legal standard.      See

Moore, supra (emphasizing that “[d]ue diligence does not require perfect

vigilance and punctilious care, but rather a showing by the Commonwealth

that a reasonable effort has been put forth”) (emphasis added); see also

Hunt, 858 A.2d at 1242 (stating that “reasonable effort” includes such actions

as the Commonwealth listing the case for trial prior to the Rule 600 run date,

and citing Commonwealth v. Hill, 736 A.2d 578, 592 (Pa. 1999) (holding

that the Commonwealth exercised due diligence when it initially scheduled

trial within the time requirements of Rule 600, but trial was delayed by actions

of the defendant beyond the Commonwealth’s control)); Commonwealth v.


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5 Moreover, at the Rule 600 hearing, the trial court stated as follows in
response to defense counsel’s claim that the Commonwealth did not contact
the Deputy Court Administrator to request that the case be listed for jury
selection: “it doesn’t matter because [the case] was called[, i.e., on May 1,
2019]. … So once the case was called, the Commonwealth knew that they
didn’t have to take any special precautions …. The case was called within the
adjusted Rule 600 date.” N.T., 8/28/19, at 18; see also id. (defense counsel
agreeing with the court’s assessment of the run date).

6See N.T., 8/28/19, at 24 (defense counsel arguing that even though he was
unavailable on May 1, 2019, the date on which the case was listed for jury
selection, the Commonwealth should have done everything in its power to
ensure the case was listed the next day, May 2, 2019, regardless of there
being six other cases already listed for jury selection on that date).

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Colon, 87 A.3d 352, 359 (Pa. Super. 2014) (stating “[t]he Commonwealth

must do everything reasonable within its power to guarantee that a trial

begins on time[.]” (emphasis added, citation omitted)). Additionally, there is

no evidence whatsoever that the Commonwealth engaged in misconduct to

evade Appellant’s speedy trial rights. See Martz, supra. Finally, we discern

nothing in the record to support Appellant’s challenge to the testimony of the

Deputy Court Administrator that the Commonwealth was prepared to try

Appellant’s case on May 1, 2019. Accordingly, the trial court did not abuse its

discretion in denying Appellant’s Rule 600 motion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/29/2020




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