                                   [J-47-2017]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 27 EAP 2016

                   Appellee                   :   Appeal from the Judgment of Superior
                                              :   Court entered on 1/8/16 at No. 929 EDA
                                              :   2014 (reargument denied 2/26/16),
              v.                              :   reversing and remanding the February
                                              :   28, 2014 order of the Court of Common
                                                  Pleas, Philadelphia County, Criminal
                                                  Division at Nos. CP-51-CR-0007377-
LEON MILLS,                                   :   2011 and CP-51-CR-0007379-2011

                   Appellant
                                              :   ARGUED: May 10, 2017




                                        OPINION


CHIEF JUSTICE SAYLOR                                           DECIDED: June 20, 2017


       Appellant, a criminal defendant, challenges the Superior Court's decision to

overturn a county court's finding of a violation of the rule-based requirement that he

receive a prompt trial.

       Rule of Criminal Procedure 600 requires that "Nrial 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."         Pa.R.Crim.P. 600(A)(2)(a).     Per the

associated computational guidance, periods of delay at any stage of the proceedings

caused by the Commonwealth when it has failed to exercise due diligence are to be

counted in the 365 -day tally. See id. 600(C)(1). The rule further directs that la]ny other
periods of delay shall be excluded from the computation."          Id. (emphasis added).

Failure to meet the rule's prompt -trial requirement constitutes grounds for dismissal.

See id. 600(D)(1).

      On June 6, 2011, the Commonwealth filed a complaint against Appellant

charging him with a series of crimes arising out of a drive -by shooting, including

attempted murder and aggravated assault. A scheduling conference was conducted in

September of that year, and trial originally was slated for April 2, 2012.    At a status

meeting on March 20, 2012, however, per the Commonwealth's request, trial was

continued. A prosecutor advised the common pleas court that the Commonwealth was

not yet in a position to provide complete discovery, the assigned assistant district

attorney had a planned vacation on the then -scheduled trial date, and DNA testing of

genetic material from Appellant was contemplated. Trial was rescheduled to September

10, 2012.   As of the time of the March 20 conference, about nine and one-half months

had passed since the filing of the complaint.

      After trial was again continued, Appellant filed a Rule 600 motion to dismiss.    In

connection with the motion, Appellant conceded that several weeks should be excluded

from the 365 -day calculation. The parties, however, disputed whether 174 of the days

between the filing of the complaint and the status conference should also be excluded.

Moreover, given the impact of other aspects of the calculation that are not directly

relevant here, the outcome of the dismissal motion turned on whether or not this 174

days was to be included or excluded in the 365 -day calculation.

      The Commonwealth contended that the time should be excluded. This argument

was premised on the notion that Rule 600(C)'s computational instructions, as revised in

2012, radically alter the primary directive that trial is to commence within 365 days. The

Commonwealth's position was, in substance, that the instructions afford the prosecution



                                      [J-47-2017]   -   2
leeway to proceed, without any diligence, to cause up to 365 days of delay in the

commencement of any trial.

       The common pleas court rejected this position outright and enforced the rule's

main directive, awarding the dismissal remedy.                          On appeal, the Superior Court

reversed, however, adopting the Commonwealth's position, see Commonwealth                                  v.   Mills,

No. 929 EDA 2014, slip op., 2016 WL 104533 (Pa. Super. Jan. 8, 2016), which the

Commonwealth defends at length in the present briefing.

       Appellant, for his part, explains that the Commonwealth's construction of the rule

renders it ineffectual. According to Appellant, by attempting to fairly account for "delay"

within the contours of the prompt -trial rule, this Court never meant to transform its

requirements to effectively toll the 365 -day period throughout all periods of ordinary trial

preparation. See, e.g., Brief for Appellant at 22-23 ("By the plain language of either the

new Rule 600 or its predecessor, there is no 'delay' during the time from a scheduling

conference to a status listing[;]   .   .   .   [t]he concept of 'delay' refers to the passage of a

period of time that is outside of the ordinary, routine and expected passage of time.").

Appellant references Commonwealth                v.   Morgan, 484 Pa. 117, 398 A.2d 972 (1979), as

an opinion of this Court buttressing his position.                    See id. at 123-24, 398 A.2d at 975

("[A]ny occurrences between the filing of the complaint and the commencement of the

trial which did not affect the time in which the trial was commenced                   .   .   .   [is] not properly

considered as a 'delay in the proceedings[.]'").

       Ordinarily, prompt -trial rulings are reviewed by the appellate courts for an abuse

of discretion. See, e.g., Commonwealth v. Burno,                         Pa.    ,          154 A.3d 764, 793

(2017).   Presently, however, the dispositive question is framed as a legal issue, see,

e.g., Brief for Appellee at 1, over which our review is plenary.                    See, e.g., In re D.L.H.,

606 Pa. 550, 563, 2 A.3d 505, 513 (2010).



                                                [J-47-2017]   -   3
       Upon review, we agree with Appellant that time attributable to the normal

progression of a case simply is not "delay" for purposes of Rule 600. Accord Morgan,

484 Pa. at 123-24, 398 A.2d at 975. We realize that, given this Court's holding that

periods of judicial delay are excludible from calculations under the rule, see, e.g.,

Commonwealth      v.   Bradford, 616 Pa. 122, 141, 46 A.3d 693, 705 (2012), courts of

original jurisdiction must apply judgment in distinguishing between delay attributable to

the court and that which should be allocated to a party.

       These courts also have discretion, however, to differentiate between time

necessary to ordinary trial preparation and judicial delay arising out of the court's own

scheduling concerns.      Accordingly, 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. Here, however, the Commonwealth does not argue

that it was prepared for trial during the 174 days in issue.

       Under the Commonwealth's approach, time during which no one is prepared for

trial -- or even possibly could be ready -- is "delay." Such theory is not borne out in any

of this Court's decisions, and we find it to be inconsistent with both the letter and spirit of

Rule 600.1

       The order of the Superior Court is reversed and the matter is remanded for

reinstatement of the dismissal order.


       Justices Baer, Todd, Donohue, Dougherty and Wecht join the opinion.




1 We do not foreclose the possibility that matters attributable to the defendant during the
trial -preparation period could affect the Commonwealth's readiness and, therefore, may
impact the calculation. All that is before us presently is a request for a bright -line rule
that ordinary trial preparation should always be deemed to be delay and is excludible as
a matter of course, and our decision is limited to a rejection of that position.


                                        [J-47-2017]   -   4
        Justice Wecht files a concurring opinion in which Justices Todd and Donohue
join.

        Justice Mundy did not participate in the consideration or decision of this case.




                                       [J-47-2017]   -   5
