J-S07037-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                     Appellee                  :
                                               :
             v.                                :
                                               :
ALLAN RICHARDSON,                              :
                                               :
                     Appellant                 :    No. 2572 EDA 2018

         Appeal from the Judgment of Sentence Entered April 27, 2018
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007111-2016

BEFORE:           NICHOLS, J., KING, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                           FILED APRIL 21, 2020

        Allan Richardson (Appellant) appeals from the April 27, 2018 judgment

of sentence imposed after a jury convicted him of two violations of the

Uniform Firearms Act (VUFA). Specifically, Appellant challenges the trial

court’s denial of his motion to dismiss pursuant to Pa.R.Crim.P. 600.             We

remand to the trial court for issuance of a supplemental Pa.R.A.P. 1925(a)

opinion consistent with this memorandum.

        We provide the following background from the record. On June 3,

2016,    a    criminal    complaint   was   filed   charging   Appellant   with   the

aforementioned VUFA offenses and eight additional counts, including

attempted murder and aggravated assault. A preliminary hearing was

scheduled for June 23, 2016, but at the request of the Commonwealth it was

continued to July 8, 2016. On July 5, 2016, the scheduled preliminary


*Retired Senior Judge assigned to the Superior Court.
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hearing was cancelled. Appellant was held for court by an indicting grand

jury on July 22, 2016. At an August 23, 2016 scheduling conference, the

court set trial for August 7, 2017. The docket entry for the scheduling

conference reads: “Jury trial is scheduled: 8/7/17, Rm 702. Earliest possible

date is given.” Docket Entry 55.

      On August 4, 2017, three days prior to the initial trial listing, the trial

court held a pre-trial conference and noted that “[b]oth sides [are] ready for

trial.” Docket Entry 62. On the day the trial was scheduled to start, the

Commonwealth requested and was granted a continuance because the

complaining witness and an eyewitness failed to appear in court. According

to the Commonwealth, the eyewitness was sick, and the complaining witness

failed to appear despite being served. N.T., 2/12/2018, at 8.

      At an August 31, 2017 status conference, both Commonwealth

witnesses were present. However, Appellant moved to continue the trial to

January 29, 2018. Docket Entry 75. On January 29, 2018, the trial was

again continued at Appellant’s request to February 12, 2018, because

Appellant’s counsel was ill. In granting this final continuance, the court noted

in the docket that the final two week delay was excludable. Docket Entry 85.

      On February 11, 2018, Appellant filed a petition to dismiss the

information pursuant to Pa.R.Crim.P. 600(A). A hearing was held on

February 12, 2018. The Commonwealth did not call witnesses or present

documentary evidence at the hearing, but argued it had exercised due


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diligence as to the original trial listing of August 7, 2017, and had been

ready to proceed as of the August 31, 2017 status hearing. N.T., 2/12/2018,

at 8. In support, the Commonwealth stated it had “continu[ed] contact with

[the witnesses] by sending police out and speaking to their parents. And on

the first trial listing, one of them was sick and the other didn’t show up.” Id.

It also noted it had been in contact with the complaining witness since

before the indicting grand jury. Id. at 8-9. Following argument, the trial

court denied Appellant’s motion without elaborating as to its reasoning or

making a finding that any specific period of time was excludable. Id. at 10.

        A jury trial began on February 12, 2018, and, on February 14, 2018,

the jury found Appellant guilty of two VUFA counts.1 A sentence of three and

one-half years to seven years of incarceration, followed by five years of

probation,    was   imposed   on   April   27,   2018.   Appellant’s   timely-filed

post-sentence motion was denied on September 4, 2018.

        Appellant timely filed a notice of appeal, and both Appellant and the

trial court complied with Pa.R.A.P. 1925.        On appeal, Appellant claims the

trial court erred in denying Appellant’s Rule 600 motion. Appellant’s Brief

at 3. We review this issue mindful of the following.

              In evaluating Rule 600 issues, our standard of review of a
        trial court’s decision is whether the trial court abused its
        discretion. 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

1   The jury acquitted Appellant of attempted murder and aggravated assault.
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     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.

           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 crime and to deter those
     contemplating it. However, the administrative mandate of Rule
     600 was not designed to insulate the criminally accused from
     good faith prosecution delayed through no fault of the
     Commonwealth.

Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa. Super. 2018) (quoting

Commonwealth v. Wendel, 165 A.3d 952, 955-56 (Pa. Super. 2017))

(citation and brackets omitted).

     In pertinent part, Rule 600 provides as follows.

           (A) Commencement of Trial; Time for Trial

                 (1) For the purpose of this rule, trial shall be deemed
                 to commence on the date the trial judge calls the
                 case to trial, or the defendant tenders a plea of
                 guilty or nolo contendere.

                 (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


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                          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.

                                      ***
            (D) Remedies

                    (1) When a defendant has not been brought to trial
                    within the time periods set forth in paragraph (A), at
                    any time before trial, the defendant’s attorney...
                    may file a written motion requesting that the charges
                    be dismissed with prejudice on the ground that this
                    rule has been violated. A copy of the motion shall be
                    served on the attorney for the Commonwealth
                    concurrently with filing. The judge shall conduct a
                    hearing on the motion.

Pa.R.Crim.P. 600.

      The courts of this Commonwealth conduct a multi-step analysis to

compute time pursuant to Rule 600. Wendel, 165 A.3d at 956. First, Rule

600(A) provides the mechanical run date. Second, the trial court determines

if any time constitutes an excludable delay pursuant to Rule 600(C). 2 This

determination involves two distinct inquiries: whether the time is a “delay in

2 This memorandum uses “excludable” to refer to all time that is not included
in the Rule 600 count. See Commonwealth v. Jackson, 765 A.2d 389, 394
n.8 (Pa. Super. 2000) (“[T]he distinction between ‘excludable time’ and
‘excusable delay’ in the context of Rule 600 has been blurred.”).
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proceedings,” and whether the delay should be excluded based on an

analysis of the Commonwealth’s due diligence. Commonwealth v. Mills,

162 A.3d 323, 325 (Pa. 2017). Time that is “necessary to ordinary trial

preparation” or “attributable to the normal progression of a case simply is

not a ‘delay’ for purposes of Rule 600.” Id. If time is a “delay,” it is

excludable   when     it   falls   under    the   “wide    variety   of   circumstances

[encompassed by Rule 600] under which a period of delay was outside the

control of the Commonwealth and not the result of the Commonwealth’s lack

of diligence.” Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super.

2013) (citations and quotation marks omitted).

      “A Rule 600 motion requires a showing of due diligence by a

preponderance of the evidence for the Commonwealth to avail itself of an

exclusion.” Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)

(citing Commonwealth v. Hill, 736 A.2d 578, 586 (Pa. 1999)). “Due

diligence is fact-specific, to be determined case-by-case; it does not require

perfect   vigilance   and     punctilious    care,   but    merely    a   showing   the

Commonwealth has put forth a reasonable effort.” Id. Trial courts “must

exercise judgment in distinguishing between delay attributable to the court

and that which should be allocated to a party.” Mills, 162 A.3d at 325.

Judicial delays “arising out of the court’s own scheduling concerns[]... where

a trial-ready prosecutor must wait several months due to a court calendar...




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should   be    treated   as    ‘delay’   for    which   the   Commonwealth    is   not

accountable.” Id.

      Because delays not attributable to the Commonwealth are not counted

against Rule 600’s time-bar, excluded time is added to the mechanical run

date resulting in an extension of the run date. If the Commonwealth fails to

bring the defendant to trial by the final Rule 600 run date, the trial court

must dismiss the charges. Wendel, 165 A.3d at 956.

      In the instant case, the complaint was filed on June 3, 2016. The

mechanical run date was June 3, 2017, 365 days later. 3 Trial commenced on

February      12,   2018.     The   total      time   between   the   complaint    and

commencement of trial is 619 days, 254 days past the mechanical run date.

The 165 days between the August 31, 2017 status hearing and the February

12, 2018 trial constitute excludable delay because trial was continued at

defense’s request. See Commonwealth v. Barbour, 189 A.3d 944, 955

(Pa. 2018). Excluding these delays, 89 days remain over the mechanical run

date. Thus, to comply with Rule 600, at least 89 additional days must be

excludable.



3 As Appellant corrects in his brief to this Court, Appellant erroneously listed
the date of the complaint as June 7, 2016 in his February 11, 2018 motion
before the trial court. Rule 600 Petition, 2/11/2018, at 1; Appellant’s Brief
at 5. The trial court repeats this date in its opinion, resulting in calculations
that are four days short of the actual day count. Trial Court Opinion,
4/3/2019, at 7. This error is inconsequential to the Rule 600 analysis in this
case.

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      The trial court’s computation of time pursuant to Rule 600 is as

follows.

             As noted, [A]ppellant was charged on June 7, 2016 [sic].
      On August 23, 2016 a pre-trial conference was held before the
      Honorable Charles J. Cunningham who set the trial for August 7,
      2017. Judge Cunningham noted that August 7, 2017, was the
      earliest possible date given the court’s schedule so therefore, the
      349 days between August 23, 2016 and August 7, 2017, were
      not chargeable to the Commonwealth. “[J]udicial delay is a
      justifiable basis for an extension of time if the Commonwealth is
      ready to proceed.” Commonwealth v. Hunt, 858 A.2d 1234,
      1241 (Pa. Super. 2004) (quoting Commonwealth v. Wroten,
      451 A.2d 678, 681 (Pa. Super[.] 1982)). Subtracting that period
      from the 615 [sic] days it took to try [A]ppellant indicates that
      [A]ppellant was tried in conformity with Rule 600.

Trial Court Opinion, 4/3/2019, at 7-8.

      Appellant disputes the trial court’s characterization of the time

between the August 23, 2016 status conference and the August 7, 2017 trial

listing as judicial delay, arguing “the act of setting a first trial date is not a

situation in which a ‘trial-ready’ prosecutor is being prevented from going

forward to trial... [it] is something done in the normal progression of a

case.” Appellant’s Brief at 14. Appellant argues that the Commonwealth was

not trial-ready at the first trial listing because two necessary witnesses failed

to appear. Id. Appellant further contends that even if the court finds the

time at issue is a “delay,” the court must analyze the Commonwealth’s due

diligence before time can be excluded. Id. at 15. Appellant argues that the

trial court “made no attempt to engage in a consideration of the

Commonwealth’s due diligence.” Id. at 15. Had the court conducted a due


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diligence analysis, Appellant claims “the record [would] demonstrate a clear

lack of due diligence during the time leading up to the first trial” based on

the Commonwealth’s failure to procure its witnesses and the timing of the

Commonwealth’s pre-trial motions. Id. at 15-16.

      Appellant relies on Mills to support his argument. In that case, our

Supreme Court held that time attributable to the normal progression of a

case is not excludable where the Commonwealth is not prepared for trial.

Mills, 162 A.3d at 325. The issue in Mills was a period of time that could

have been attributed to either the court’s schedule, which set the trial

schedule based on its earliest availability, or to the Commonwealth, which

was not prepared to proceed to trial on the scheduled trial date. Id. at 326

(Wecht J., concurring). In ruling against the Commonwealth, our Supreme

Court acknowledged that judicial delay could be grounds to exclude time

where “a trial-ready prosecutor must wait several months due to a court

calendar,”   but   judicial   delay   did   not   apply   in   Mills   because   the

Commonwealth failed to exercise due diligence in preparing for trial. Id. at

325. In a concurring opinion, Justice Wecht emphasized that “‘judicial delay’

cannot be substituted for due diligence...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). Because time is not per se excludable where the

court has set the trial date for the earliest possible day, a trial court must


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distinguish between delay attributable to the court and delay attributable to

a party. Mills, 162 A.3d at 325.

      This Court agrees with Appellant’s contention that the trial court failed

to analyze whether the Commonwealth exercised due diligence in bringing

the case to trial. The trial court properly identified that “due diligence is a

fact-specific concept that must be determined on a case-by-case basis.”

Trial Court Opinion, 4/3/2019, at 7 (quoting Selenski, 994 A.2d at 1089).

However, in its case-specific analysis, the trial court did not include any

assessment of the Commonwealth’s conduct or readiness. Id. Instead, it

relied exclusively on the court’s schedule to conclude that 349 contested

days should not be counted. Id. Notwithstanding docket records indicating

that the trial court could not have scheduled trial before August 7, 2017, it

was improper for the trial court to have excluded time as a judicial delay

without first making a finding that the Commonwealth exercised due

diligence. See Mills, 162 A.3d at 325 (holding that time during which the

Commonwealth is not ready for trial cannot be excluded as a delay under

Rule 600(C)(1)).

      Where a trial court has failed to conduct a proper due diligence

analysis, the correct action for this Court to take is to remand for the trial

court for such analysis. See Selenski, 994 A.2d at 1089 (stating that where

the trial court had not conducted a due diligence analysis in the first

instance, the Superior Court should remand for the trial court to determine


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whether the Commonwealth exercised due diligence pursuant to Rule 600).

Accordingly, we remand to the trial court to file with this Court a

supplemental 1925(a) opinion within 30 days analyzing whether the

Commonwealth exercised due diligence at pertinent intervals and, based on

that analysis, whether specific delays are attributable to the court, the

Commonwealth, or Appellant. If the court is unable to conduct this analysis

on the existing record, it may conduct an additional hearing.

     Case remanded. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 04/21/2020




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