J-A13006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

SHAKIR BERRYHILL

                            Appellee                  No. 3506 EDA 2015


                    Appeal from the Order October 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011083-2014


BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                               FILED JULY 19, 2017

        The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Philadelphia County, granting Shakir

Berryhill’s motion to dismiss the charges of possession with intent to deliver

a controlled substance, unlawful use of a communication facility, knowing

and intentional possession of a controlled substance, possession of drug

paraphernalia, and possession of a small amount of marijuana. 1           The

Commonwealth contends the trial court abused its discretion in granting the

motion to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600.

After careful review, we reverse and remand for trial.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512(a), and 35 P.S. §§ 780-
113(a)(16), 780-113(a)(31) and 780-113(a)(32), respectively.
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        On September 17, 2014, Berryhill was arrested following three alleged

controlled purchases of crack cocaine from him, organized by Philadelphia

police officers on September 11, 12 and 16, 2014, and a search of Berryhill’s

purported residence on September 17, 2014.         N.T. Preliminary Hearing,

9/30/14, at 4-11. On September 18, 2014, a criminal complaint was filed

charging Berryhill with the above-mentioned crimes. A preliminary hearing

was held on September 30, 2014. Formal arraignment occurred on October

21, 2014.

        On November 17, 2014, the trial court granted a continuance to the

Commonwealth until December 15, 2014, as requested discovery had not

been completed. The Commonwealth asserts that all discovery available at

the time was provided on December 8, 2014.           The only docket entry

available on December 15, 2014, is of a “hearing notice,” but the

Commonwealth asserts that on that date, “the Public Defender’s office

represented by Val Jones requested a date to consider the [plea] offer in

that matter.”     N.T. Rule 600 Hearing, 9/30/15, at 3-4.     The case was

continued to a pre-trial conference on January 5, 2015, at which point

Berryhill rejected the plea offer and the case was continued to February 6,

2015.

        On February 6, 2015, the Commonwealth requested a continuance

because additional discovery was outstanding, pending the completion of an

analysis of seized evidence. Two other continuances were granted, on May




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14, 2015 and September 3, 2015, because a necessary police witness was

listed as injured on duty. Trial was scheduled for September 30, 2015.

     On September 11, 2015, the Commonwealth notified the trial court

that it would be ready to proceed to trial as scheduled. On September 28,

2015, Berryhill filed his motion to dismiss.     He asserted that because the

entire 375-day span since the filing of the complaint was chargeable to the

Commonwealth and exceeded the 365 days provided for in the rules of

criminal procedure, he was entitled to a dismissal under Rule 600(A)(2)(a),

Pennsylvania’s speedy trial rule. The court heard arguments in the matter

on September 30, 2015, at which time counsel for Berryhill argued that the

continuance granted on December 15, 2014 was not chargeable to Berryhill,

“because the defendant isn’t forced to take an offer.”             N.T. Rule 600

Hearing, 9/30/15, at 4.

     The Honorable Judge Joan A. Brown granted the motion to dismiss on

October 30, 2015.    The Commonwealth filed a motion to reconsider on

November    6,   2015,    and   the   court   denied   it   the   same   day.   The

Commonwealth filed a timely appeal.

     On appeal, the Commonwealth’s sole claim is that the trial court

abused its discretion when it granted Berryhill’s motion to dismiss for the

Commonwealth’s failure to bring the matter to trial in a speedy fashion as

required by Rule 600. Specifically, the Commonwealth alleges that the trial

court improperly attributed every delay in the case to the Commonwealth.

The Commonwealth argues that delays caused by “the court’s schedule, a

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defense continuance request, and the unavailability of the arresting officer”

were outside of the Commonwealth’s control and thus should not factor into

a Rule 600 determination. See Commonwealth’s Brief, at 12.

     In evaluating Rule 600 issues, the standard of review is whether the

trial court abused its discretion.   See Commonwealth v. Wendel, No.

1838 WDA 2016, 2017 Pa. Super. LEXIS 408, at 5 (June 7, 2017) (quoting

Commonwealth v. Armstrong, 74 A.3d 228 (Pa. Super. 2013)).

     Judicial discretion requires action in conformity with law, upon
     facts and circumstances judicially before the court, after hearing
     and due consideration. An abuse of discretion is not merely an
     error of judgment, but if in reaching a conclusion the law is
     overridden or misapplied or the judgment exercised is manifestly
     unreasonable, or the result of partiality, prejudice, bias, or ill
     will, as shown by the evidence or the record, discretion is
     abused.

     The proper scope of review is limited to the evidence on the
     record of the Rule [600] evidentiary hearing, and the findings of
     the [trial] court. An appellate court must view the facts in the
     light most favorable to the prevailing party.

Id. at 234. We are not permitted to ignore the dual purpose of Rule 600,

and therefore must balance the protection of the accused’s speedy trial

rights and the protection of society. Id. at 235. Importantly, the rule was

not designed to “insulate the criminally accused from good faith prosecution

delayed through no fault of the Commonwealth.”         Id. at 235.    In the

absence of misconduct on the part of the Commonwealth in an effort to

evade the accused’s essential speedy trial rights, the rule should be




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construed “in a matter consistent with society’s right to punish and deter

crime.” Id. at 235.

        Rule 600 provides, inter alia, that a trial must commence “within 365

days from the date on which the complaint is filed.”              Pa.R.Crim.P.

600(A)(2)(a). Only those delays “caused by the Commonwealth when the

Commonwealth has failed to exercised due diligence” shall factor into the

computation of the time available for trial. Pa.R.Crim.P. 600(C)(1).      “Any

other periods of delay shall be excluded from the computation.”            Id.

(emphasis added).

        In a speedy trial analysis, we first look to Rule 600(A) to establish a

mechanical run date, which runs 365 days from the filing of the complaint.

Commonwealth v. Ramos, 936 A.2d 1097, 1101 (Pa. Super. 2007). We

then look to Rule 600(C) to determine whether any excludable time exists to

advance the mechanical run date to an adjusted run date. Id. Here, as the

parties agree and the trial court found, the complaint was filed on

September 18, 2014; thus the mechanical run date was September 18,

2015.

        Berryhill argues that none of the time from the filing of the complaint

was excludable time, and that the Commonwealth violated Rule 600 in not

trying him by September 18, 2015. We disagree.

        At issue is whether any of the periods asserted by the Commonwealth

are excludable for the purposes of an adjusted run date calculation under




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Rule 600(C). Upon review, the 21 days between December 15, 2014 and

January 5, 2015 should factor into the computation of an adjusted run date.

      Any delay resulting from circumstances beyond the Commonwealth’s

control despite its due diligence is excusable.      See Commonwealth v.

Preston, 904 A.2d 1 (Pa. Super. 2006) (en banc). Such a delay includes

one in which the defense has been instrumental in causing the delay. See

Commonwealth v. Mattis, 710 A.2d 12 (1998). Continuances granted at

the request of the defense, as well as joint continuances granted at the

request of both the defense and prosecution, are similarly excludable. See

Commonwealth v. Anderson, 959 A.2d 1248, 1249 (Pa. Super. 2008);

Commonwealth v. Peterson, 19 A.3d 1131, 1137 (Pa. Super. 2011).

      Both the Commonwealth and Berryhill assert that the other is to be

charged with the December 15, 2014 continuance, and the trial court makes

no explicit ruling on the issue.   Although Berryhill initially said that “there

have been no defense requests in this case,” at the Rule 600 evidentiary

hearing, Berryhill did not deny the Commonwealth’s later claim that the

December 15, 2014 continuance followed a defense request to consider a

plea offer.   N.T. Rule 600 Hearing, 9/30/15, at 2-4.        Instead, Berryhill

argued that the delay should not be chargeable because “the defendant isn’t

forced to take an offer.” Id.

      While that is true, Berryhill’s argument holds little weight.          In

Anderson, a five-day continuance granted on a defense motion to consider

a plea was held to be chargeable to the defense.         Similarly here, while

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Berryhill was under no obligation to consider the Commonwealth’s plea offer,

the choice to consider it was entirely his.    Berryhill’s admission that his

consideration of the plea offer was not forced leads to only one possible

conclusion: Berryhill’s request for time to consider the offer is not a delay

caused by the Commonwealth.

       As the 21-day delay between December 15, 2014 and January 5, 2015

resulted from Berryhill’s request for time to consider the Commonwealth’s

plea offer, the Commonwealth could not have lacked due diligence during

this time period. The 21 days are thus excludable.

       For all of the aforementioned reasons, we hold that the trial court

erred in concluding that the delay between December 14, 2014 and January

5, 2015 was to be charged to the Commonwealth, and, therefore, the

adjusted run date pertinent to a Rule 600 analysis was October 19, 2015.

Consequently, since Berryhill’s trial was scheduled to commence prior to that

date, the trial court erred in granting his motion to dismiss pursuant to Rule

600.

       Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




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