J-S14034-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                  Appellee                  :
                                            :
          v.                                :
                                            :
ODELL ASHFORD, JR.,                         :
                                            :
                  Appellant                 :   No. 824 MDA 2016

           Appeal from the Judgment of Sentence April 13, 2016,
              in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0000864-2015

BEFORE:        GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 16, 2017

     Odell Ashford, Jr. (Appellant) appeals from the judgment of sentence

of costs, fines, and 90 days of imprisonment imposed following his

convictions for, inter alia, driving while operating privilege suspended or

revoked. We vacate Appellant’s judgment of sentence and discharge him.

     The underlying facts are as follows.

           On January 2, 2015, Officer Michael Carpenter performed a
     vehicle stop on a green Plymouth van. The officer made the
     decision to stop the vehicle because the passenger side
     reversing lamp was inoperative, a taillight was broken and
     covered with tape, and because the driver’s side door was held
     fast by means of a rope or bungee cord, which all violated the
     inspection code. Upon approach, the officer was informed by []
     Appellant that he did not have his driver’s license. [] Appellant
     never provided his identification or insurance card. The defense
     stipulated to the authenticity of the driving record, which
     indicated that [] Appellant’s license had expired on September
     30, 1981 and that [] Appellant’s license was suspended for a
     refusal to submit to chemical testing in 1980. Additionally, at


*Retired Senior Judge assigned to the Superior Court.
J-S14034-17


        the time of the incident, [] Appellant's license would not have
        been restored.

Trial Court Opinion (TCO), 9/9/2016, at 3 (citations omitted).

        On January 2, 2015, a criminal complaint was filed against Appellant.

Among the charges was a count for possession of a controlled substance

without a valid prescription.     Complaint, 1/2/2015, at Count 2.       A pretrial

conference was held on June 15, 2015, at which Appellant’s counsel

requested that the case be listed for trial during the September 2015 term

instead of the July 2015 term to give him time to procure evidence that

Appellant had a valid prescription.       The trial court entered an order that

provided as follows.

               We note the case is to be scheduled for trial. The request
        is for listing during the September term. The Commonwealth is
        in agreement with that, with the stipulation that the Rule 600
        time runs against [Appellant]. The defense has acknowledged
        that or agreed that is the case.

               This will then be listed in September for the list of criminal
        jury trials, unless it is heard earlier by a bench trial.

Order, 6/15/2015.

        For reasons not apparent from the record, the case did not proceed to

trial in September 2015 or at any time before March 3, 2016, when the

Commonwealth filed a motion to schedule the case for a nonjury trial. By

order of April 6, 2016, the trial court scheduled a bench trial for April 13,

2016.    On April 12, 2016, Appellant filed a motion to dismiss pursuant to

Rule 600 of the Pennsylvania Rules of Criminal Procedure.          The trial court


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heard and denied the motion immediately before the April 13, 2016 trial, at

which it found Appellant guilty of driving with a suspended license and other

summary offenses and sentenced him as indicated above.1             Appellant’s

timely-filed post-sentence motion was denied on April 25, 2016.

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

trial court complied with Pa.R.A.P. 1925.    Appellant presents one question

for our review: “Whether the trial court erred in denying Appellant’s motion

to dismiss… based upon Rule 600 by finding that the Commonwealth

exercised due diligence?” Appellant’s Brief at 4.

      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 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


1
  The trial court acquitted Appellant of driving under the influence - general
impairment.

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     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. Watson, 140 A.3d 696, 697-98 (Pa. Super. 2016),

(quoting Commonwealth v. Peterson, 19 A.3d 1131, 1134–35 (Pa. Super.

2011)).

     The text of Rule 600 is as follows, in pertinent part.

           (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 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.

                                    ***

           (3)(a) When a judge or issuing authority grants or denies a
     continuance:



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                  (i) the issuing authority shall record the identity of
            the party requesting the continuance and the reasons for
            granting or denying the continuance; and

                  (ii) the judge shall record the identity of the party
            requesting the continuance and the reasons for granting or
            denying the continuance. The judge also shall record to
            which party the period of delay caused by the continuance
            shall be attributed, and whether the time will be included
            in or excluded from the computation of the time within
            which trial must commence in accordance with this rule.

                                    ***
            (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, or the defendant if
      unrepresented, 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.

      In the instant case, the written complaint was filed against Appellant

on January 2, 2015.    Hence, under subsection (A)(2)(a), Appellant’s trial

was required to commence by January 2, 2016.               The trial actually

commenced on April 13, 2016, which is 102 days late.

      The trial court determined that the trial was timely commenced under

subsection (C)(1) because there were sufficient periods of delay that were

not caused by the Commonwealth’s failure to exercise due diligence. TCO,

9/9/2016, at 7-10. Specifically, the trial court held that the entire 102 days

between the June 15, 2015 pretrial conference and the last day of the


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September trial term was a delay attributable to Appellant.2         Id. at 8.

Further, the trial court held that the Commonwealth exercised due diligence

in seeking to comply with Rule 600 because it notified the trial court of the

impending, adjusted Rule 600 deadline in its March 3, 2016 motion. 3 Id. at

8-9.

       Appellant disputes the trial court’s calculation of excludable time as

well as its determination that the Commonwealth exercised due diligence in

bringing him to trial.4 We agree with Appellant on both counts.



2
  In its Pa.R.A.P. 1925(a) opinion, the trial court offers this calculation, as
well as some alternative calculations, to support the proposition that the trial
was commenced before adjusted 365-day period had expired. However, at
the time it ruled on the motion, Appellant’s counsel asked “just so the record
is clear, are you denying the motion because the adjusted run date has not
passed, or are you denying it on due diligence reasons?” N.T., 4/13/2016,
at 10. The trial court responded “I’m finding that the Commonwealth
sufficiently exercised due diligence within that -- those time limitations to
bring the case to trial.” Id. However, because we may affirm on any basis
apparent from the record, we will consider whether either basis justifies the
denial of Appellant’s motion. Commonwealth v. Williams, 73 A.3d 609,
617 (2013) (“This Court is not bound by the rationale of the trial court, and
we may affirm the trial court on any basis.”).
3
 The Commonwealth’s motion did not indicate with specificity its view of the
date by which Appellant had to be tried.       It merely states that the
“Commonwealth has calculated [Appellant’s] Rule 600 date to be in April
2016.” Motion to Schedule Non-jury Trial, 3/3/2016, at ¶ 1.
4
  In support of his argument, Appellant’s counsel has cited and attached an
unpublished, non-precedential memorandum decision of this Court filed in
another York County case in which he represented a different, unrelated
defendant. Appellant’s Brief at 11, Appendix D. Presently, our internal
operating procedures provide that, with exceptions not applicable in the
instant case, “[a]n unpublished memorandum decision shall not be relied
upon or cited by … a party in any other action or proceeding….” Pa.

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      First, in calculating the period of delay attributable to a defendant,

“the actual delay caused by the defendant’s unavailability includes the period

of time from the date of his unavailability until the earliest practicable trial

date….”   Commonwealth. Wentzel, 641 A.2d 1207, 1209 (Pa. Super.

1994) (citation and internal quotation marks omitted).         Here, Appellant

requested his continuance at the June 15, 2015 pretrial conference.

However, as the Commonwealth acknowledged, the case could not have

been called for trial on June 16. N.T., 4/13/2016, at 5. Rather, at that point

the earliest possible trial date Appellant could have received was the first

day of the July trial term, which was July 6, 2015.          Thus, Appellant’s

unavailability did not commence until July 6, 2015. In other words, the 21

days between the pretrial conference and the beginning of the July term

were not attributable to his continuance request.5

      Further, Appellant did not ask to have his case heard at the end of the

September trial term. Rather, implicit in his request that the case be listed

on the September term is that his unavailability would cease by the time

that term began, such that he would be ready to proceed to trial on any day


Super. IOP § 65.37 (emphasis added). Accordingly, we have not considered
that decision in our resolution of the instant appeal.
5
  Not only is such a holding logically sound, but, as Appellant notes in his
brief, to rule otherwise would encourage defendants to wait to request a
continuance until the last possible moment before trial was set to begin,
which would waste court resources and the prosecution’s time in preparing
for trial, as well as unnecessarily inconveniencing subpoenaed witnesses.
Appellant’s Brief at 12.

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during that term.6 In explaining its decision to the contrary, the trial court

references the York County local practice that the period of delay

attributable to a defendant who requests a continuance concludes on the last

day of the requested term. TCO, 9/9/2016, at 6. However, the trial court

acknowledged in its opinion that such practice is neither memorialized in any

written form, nor consistent with this Court’s precedent.         Id. (citing

Wentzel, 641 A.3d at 1209).

      Therefore, the period of delay attributable to Appellant’s continuance

request was the 64 days between the start of his unavailability on the first

day of the July term and the end of his unavailability on the first day of the

September term, which was September 8, 2015. Excluding that time from

the calculation, the Commonwealth had until March 6, 2016, to bring

Appellant to trial.

      Appellant’s case was not listed for trial during the September 2015

term. Nor was it listed during the November 2015 term, the January 2016

term, or the March 2016 term.            Rather, on March 3, 2016, the

Commonwealth for the first time filed a motion to list the case for a trial.


6
  In its opinion, the trial court offered the following commentary on this
issue. “Were the defense to argue that it did not need 102 days to procure
the prescription, we would be left to wonder why the 21 days from June 15,
2015 to the start of the following term on July 6, 2015 were insufficient to
obtain proof of a prescription.” TCO, 9/9/2016, at 8. A reasonable answer
to this hypothetical question is that Appellant thought he might require more
than 21 days to obtain the evidence, but was confident that he could get it
within the 85 days between the pretrial conference and the beginning of the
September term.

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Specifically, the Commonwealth indicated in its motion that the case should

be listed for a nonjury trial because it had opted not to pursue the charge

that Appellant had possessed a controlled substance without a valid

prescription, and that was the only count that had entitled Appellant to a

jury trial. Motion to Schedule Non-jury Trial, 3/3/2016, at ¶¶ 6-7. By order

of April 6, 2016, the trial court granted the motion and scheduled the case

for a non-jury trial to take place on April 13, 2016.

      In its opinion, the trial court indicated that the delay between the

Commonwealth’s filing its motion and the court’s scheduling the trial was not

to be included in the Rule 600 calculation. Instead, “by listing the case for

trial and making an effort to schedule the case for a bench trial, the

Commonwealth demonstrated due diligence.”          TCO, 9/9/2016, at 9.   The

following principles guide our review of this determination.

      [T]he Commonwealth must do everything reasonable within its
      power to guarantee that a trial begins on time, and the
      Commonwealth has the burden of demonstrating by a
      preponderance of the evidence that it exercised due diligence.
      As has been oft stated, [d]ue 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.

Commonwealth v. Dixon, 140 A.3d 718, 722–23 (Pa. Super. 2016).

      Here, there is no evidence in the record to explain what measures, if

any, the Commonwealth took between the end of the September 2015 term,

by which time the case was supposed to have been listed for trial, and March



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3, 2016, to ensure compliance with Rule 600. Moreover, there is no record

evidence to establish what procedures, if any, the Commonwealth has in

place to monitor cases for Rule 600 purposes. Compare Commonwealth

v. Bradford, 46 A.3d 693, 704 (Pa. 2012) (concluding Commonwealth had

established due diligence with evidence of an internal tracking system

triggered by the Magisterial District Judge’s compliance with procedural

rules), with Commonwealth v. Browne, 584 A.2d 902, 906 (Pa. 1990)

(where the Commonwealth failed to establish that the district attorney’s

office had “simple systems in place to carry out the routine duties of the

office”). All we are able to glean from the record before us is that the case

lingered on the docket from September 2015 to March 2016 and that the

Commonwealth made zero efforts during that time to have Appellant’s case

listed for trial.

       Because      the     Commonwealth      offered    no   evidence    whatsoever

concerning its efforts to bring Appellant to trial in a timely fashion, we must

conclude that the trial court erred in denying Appellant’s Rule 600 motion on

the basis that the Commonwealth met its burden of proving that it had

exercised due diligence. See, e.g., Commonwealth v. Johnson, 852 A.2d

315, 318 (Pa. Super. 2004) (vacating judgment of sentence and discharging

Johnson     because       “there   was   a dearth   of   evidence   to   support   the

Commonwealth’s arguments, and it therefore did not carry its burden to




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establish due diligence in bringing Johnson to trial within the required

time”).7

      Judgment of sentence vacated. Appellant is discharged.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




7
  The trial court in its opinion references statements made by counsel for the
Commonwealth during argument on the Rule 600 motion that she had sent
emails to the trial court “urging expedited scheduling” of the trial. TCO,
9/9/2016, at 8. However, as the trial court acknowledges, there is no record
evidence to support this argument, as “[t]hese emails were not proffered,”
id. at 8; and “‘unsworn representations of counsel are not evidence.’” Id. at
9 (quoting Johnson, 852 A.2d at 318).

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