J-S19003-16


                                   2016 PA Super 75

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

OLLIE THOMPSON,

                            Appellant                 No. 3139 EDA 2014


           Appeal from the Judgment of Sentence October 14, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000635-2010


BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.

OPINION BY BENDER, P.J.E.:                            FILED MARCH 30, 2016

       Ollie Thompson appeals from the judgment of sentence of 5–10 years'

incarceration imposed following his conviction for possession with intent to

deliver a controlled substance (PWID), 35 P.S. § 780–113(a)(30).1           We

vacate the judgment of sentence and dismiss the charges against Appellant

pursuant to Pa.R.Crim.P. 600.

       In December 2009, Appellant was arrested and charged with PWID

and related offenses after police observed Appellant engage in an illegal

narcotics transaction.      In October 2011, the trial court denied Appellant’s

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1
  Appellant was deemed eligible for recidivism risk reduction incentive
(RRRI). See 61 Pa.C.S. §4503. Accordingly, his minimum sentence was
reduced to 50 months’ incarceration. See 61 Pa.C.S. §4505(c)(2).
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motion to dismiss filed pursuant to Rule 600, and this matter proceeded to a

jury trial resulting in Appellant’s conviction. In January 2012, the trial court

sentenced Appellant to a mandatory sentence of 5-10 years’ incarceration.

See Commonwealth v. Thompson, 93 A.3d 478, 482-84 (Pa. Super.

2014) (setting forth a more thorough recitation of the underlying facts and

procedural history of this case).

       Appellant timely appealed.       Appellant challenged inter alia the trial

court’s Rule 600 analysis.     Specifically, the trial court had recognized that

two,   significant   periods   of   delay   occurred   when   Appellant   was    not

transported from state custody, resulting in an aggregate delay of

approximately 309 days.        The first period was from December 20, 2010,

until May 9, 2011 (140 days); the second from May 9, 2011, until October

25, 2011 (169 days).      Id. at 489.       According to Appellant, these delays,

which the trial court deemed “administrative error” and thus excusable,

should have been attributed to the Commonwealth.              Id. at 488.       Upon

review, a unanimous panel of this Court concluded that there was no

evidence of record to support the trial court’s cursory analysis. Id. at 488-

89. We further determined sua sponte that Appellant’s mandatory sentence

was illegal. Id. at 493-94 (citing Alleyne v. United States, 133 S.Ct. 2151

(2013)). Accordingly, we vacated the judgment of sentence and remanded

for further proceedings. Id. at 494.




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       Regarding Appellant’s Rule 600 challenge, we directed the trial court to

consider further the circumstances leading to the two delays:

       [I]t is unclear why Appellant was not transferred from state
       custody on those occasions. Based upon the record before us, it
       is plausible that these errors were a result of administrative
       error, either on the part of the trial court or the prison, but it is
       also plausible that the prosecutor's failure to seek writs from the
       court caused the delays.

       In these circumstances, we conclude that the most prudent
       course of action is to remand this matter for a hearing for further
       consideration of the two delays that resulted from the failure to
       transfer Appellant to the trial court.        If it is adequately
       demonstrated by the Commonwealth that they sought a writ
       from the trial court to secure Appellant's presence in court on
       each of those two occasions, no further inquiry is required, and
       the trial court should leave untouched its holding that no Rule
       600 violation occurred. If the Commonwealth cannot provide
       evidence that it sought one or both of the writs, the trial court
       should then determine whether Appellant was tried within the
       time period prescribed by Rule 600. If he was not tried within
       the prescribed time period, the trial court should then determine
       whether the Commonwealth acted with due diligence in securing
       Appellant's presence and/or whether the failure to transfer
       Appellant was completely beyond the Commonwealth's control.

Id. at 488-89 (footnote omitted).

       On remand in August 2014, the trial court held an evidentiary hearing.

The Commonwealth noted for the record that the Clerk of Quarter Sessions2

court docket revealed that Appellant had requested a continuance on

December 20, 2010. See Notes of Testimony (N.T.), 08/22/2014, at 9-10.

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2
 The Clerk of Quarter Sessions serves as the clerk of courts for the Court of
Common Pleas of Philadelphia County. See 42 Pa.C.S. § 2751(c).




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However, there was no similar notation regarding May 9, 2011.          Id.   To

counter this lack of evidence, the Commonwealth introduced testimony from

Attorney Alisa Shver who was the assistant district attorney assigned to the

case at the time. A.D.A. Shver testified that her file did not indicate whether

a writ was requested or prepared for May 9, 2011.             N.T. at 20-21.

Thereafter, the following exchange took place:

      Q.    What is your standard procedure whenever you handle a
      case in terms of requesting a writ?

      A.     My standard procedure is that I request a writ from the
      clerk, from the Court and from the clerk but because it’s such a
      routine – it’s absolutely routine in all cases. I would not have
      normally marked that in the file that that is a defendant who
      also is in custody and that was the standard procedure.

Id. at 21.

      Appellant was not present at the hearing, and so the trial court

withheld a decision pending arrangements for Appellant’s transportation.

Id. at 26. Thereafter, in October 2014, a second hearing occurred, at which

time the trial court denied Appellant’s Rule 600 challenge, finding the

testimony of A.D.A. Shver credible and concluding that the Commonwealth

had demonstrated by a preponderance of evidence that it had exercised due

diligence in securing Appellant’s presence for trial. N.T., 10/14/2014, 5-6.

The trial court then resentenced Appellant as set forth above.

      Appellant timely appealed and now raises the following issues:

      [1.] Did the lower court commit an abuse of discretion by
      denying Appellant’s Rule 600 Motion to dismiss?


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       [2.] Did the sentencing court commit an abuse of discretion
       because the sentence was excessive under the circumstances of
       the case where the [court] failed to consider mitigating
       circumstances or the statutory factors set forth in 42 Pa.C.S. §
       9721(b)?

Appellant’s Brief at 4.3      In light of the following analysis, we do not reach

Appellant’s second question.

       Appellant contends that the trial court erred as a matter of law, and

thus abused its discretion, when it denied his Rule 600 motion to dismiss.

“Rule 600 was designed to prevent unnecessary prosecutorial delay in

bringing a defendant to trial.”        Commonwealth v. Brock, 61 A.3d 1015,

1021 (Pa. 2013).

       Generally, [the Rule] serves to protect a defendant's speedy trial
       rights, as well as society's right to effective prosecution of
       criminal cases. To balance these rights, Rule 600(G) requires
       the court to consider whether the Commonwealth exercised due
       diligence, and whether the circumstances occasioning the delay
       of trial were beyond the Commonwealth's control. Further, the
       rule states, [i]f, at any time, it is determined that the
       Commonwealth did not exercise due diligence, the court shall
       dismiss the charges and discharge the defendant.

Commonwealth v. Selenski, 994 A.2d 1083, 1088 (Pa. 2010) (internal

punctuation and citations omitted).4

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3
 The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
and filed no opinion.
4
 The Pennsylvania Supreme Court adopted a new Rule 600, effective July 1,
2013. Here, the criminal complaint was filed prior to the new rule;
accordingly, we apply the former version. See Commonwealth v. Brock,
61 A.3d 1015, 1016 n.2 (Pa. 2013).



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        We review a trial court’s decision to deny a Rule 600 motion for an

abuse of discretion. Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa.

Super. 2007).

        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.

        In relevant part, Rule 600 requires that trial shall commence within

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

600(A).     This straightforward calculation is known as the mechanical run

date.    See, e.g., Ramos, 936 A.2d at 1102.         However, those periods of

delay caused by a defendant are excluded from the computation of the

length of time of any pretrial incarceration. Pa.R.Crim.P. 600(C). Following

these exclusions, if any, we arrive at an adjusted run date by extending the

mechanical run date to account for these exclusions.         See, e.g., Ramos,

936     A.2d   at   1102.    Any   other    delay   that   occurs,   despite   the

Commonwealth’s due diligence, is deemed excusable and results in further

adjustments to the effective run date.        Pa.R.Crim.P. 600(G); see also


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Ramos, 936 at 1102 (explaining that “[e]xcusable delay is a legal construct

that takes into account delays which occur as a result of circumstances

beyond the Commonwealth's control and despite its due diligence”) (internal

punctuation and citation omitted).

     To establish that a delay is excusable, the Commonwealth must

demonstrate that it proceeded with due diligence by a preponderance of the

evidence. Selenski, 994 A.2d at 1089; see also 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.

Selenski, 994 A.2d at 1089 (internal citations omitted).       “Due diligence

includes, among other things, listing a case for trial prior to the run date,

preparedness for trial within the run date, and keeping adequate records to

ensure compliance with Rule 600.” Ramos, 936 at 1102 (emphasis added).

     “[T]he Commonwealth should be held to the requirement that it

exercise due diligence at all times during the pendency of a case.”

Commonwealth v. Hawk, 597 A.2d 1141, 1145 (Pa. 1991).               Thus, the

Commonwealth must act with due diligence “throughout the period,” for

each delay not caused by the defendant.       Hill, 736 A.2d at 586.        This

requires affirmative action by the Commonwealth. See Hawk, 597 A.2d at

1145 (rejecting the Commonwealth’s argument that an assigned judge’s

unavailability precluded the Commonwealth from listing a case for trial).

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        Here, Appellant’s trial commenced on October 25, 2011. This was well

beyond the mechanical run date: The complaint was filed against Appellant

on December 4, 2009, and thus, the mechanical run date was December 6,

2010. See Phila. Cnty. Crim. Complaint DC# 09-15-132041; Pa.R.Crim.P.

600(A)(2)(a); see also 1 Pa.C.S. § 1908.

        Appellant was responsible for several periods of delay, totaling 150

days of excludable time. See N.T. (Rule 600 Motion Hearing), 10/24/2011,

at 7-9.5 Thus, the apparent, adjusted run date was May 5, 2011.

        Turning to the two remaining delays, which were the subject of the

hearing on remand, evidence established that the first of these occurred

when Appellant requested a continuance.          See N.T., 08/22/2014, at 9-10.

Accordingly, Appellant was also responsible for the period of delay from

December 20, 2010, until May 9, 2011, totaling another 140 days of

excludable time. Thus, the adjusted run date was actually September 22,

2011.

        However, there was no evidence presented to the trial court that

would justify excluding or excusing the final period of delay from the run

date calculation. The delay was not attributable to Appellant. Further, the

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5
  The trial court totaled the various delays incorrectly, concluding that only
131 days were excludable. See Trial Court Opinion, 05/24/2013, at 4
(specifically, erroneously calculating the period from 11/10/2010 until
12/20/2010 as 21 days).




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Commonwealth acknowledged that no writ issued to transport Appellant to

trial on May 9, 2011, and there was no indication in the Quarter Sessions file

or the district attorney’s file that a writ was ever requested. Id.; see also

N.T., 08/22/2014, at 20-21.

        The Commonwealth sought to excuse this delay by relying on the

testimony of A.D.A. Shver, who suggested that it was her standard

procedure to request a writ. Id. at 21. Thus, the question arises whether

her testimony demonstrates due diligence by the Commonwealth. If so, we

may excuse the delay from May 9, 2011, until October 25, 2011.

       According to Appellant, such testimony is insufficient. This is because,

Appellant submits, “mere assertions of due diligence, as well as unsupported

facts, are insufficient to meet the required burden.” Appellant’s Brief at 18

(quoting Commonwealth v. Caden, 487 A.2d 1, 4 (Pa. Super. 1984)). In

response, the Commonwealth maintains that Appellant’s absence on May 9,

2011, should not be attributed to the Commonwealth.                According to the

Commonwealth, its habitual “use of the writ system constitutes due

diligence, notwithstanding repeated failures of corrections officials to comply

with   the   court’s   order   to   bring   a   defendant   down    from   custody.”

Commonwealth’s Brief at 15 (principally citing in support Commonwealth

v. Mines, 797 A.2d 963 (Pa. Super. 2002); see also Commonwealth’s Brief

at 16-18 (citing Pa.R.E. 406, which provides for the admissibility of evidence




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tending to prove an organization’s routine practice occurred on a specific

occasion).

      Appellant’s argument is persuasive.       Due diligence does not require

perfect vigilance, but the Commonwealth must demonstrate affirmatively

that it endeavored to secure a defendant’s presence when necessary,

throughout the pendency of the case.         See Selenski, 994 A.2d at 1089;

Hill, 736 A.2d at 586; Hawk, 597 A.2d at 1145.

      Upon    remand,   we   specifically    directed   the   Commonwealth   to

demonstrate that it “sought a writ from the trial court to secure Appellant's

presence in court” on May 9, 2011.      Thompson, 93 A.3d at 489. It was

unable to do so.     In particular, the lack of any notation in the district

attorney’s file is troubling. See N.T., 08/22/2014, at 20-21. This failure to

keep adequate records of its efforts to secure Appellant’s presence at trial

militates against any conclusion the Commonwealth acted with due

diligence. See Ramos, 936 at 1102.

      In our view, the Commonwealth’s reliance upon Mines is misplaced,

as it offers no justification for the Commonwealth’s failure to document its

efforts. In that case, we examined two delays caused when the defendant

was not brought to trial. Mines, 797 A.2d at 964-65. Regarding one of the

delays, the Quarter Sessions file failed to indicate whether a writ issued. Id.

Nevertheless, we did not charge the delay to the Commonwealth. Id.




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         There are clear distinctions between Mines and the case sub judice.

In Mines, there was no testimony or documentary evidence regarding the

contents of the district attorney’s file, and the focus of our analysis remained

on the Quarter Sessions file. Id. Importantly, the question of whether the

Commonwealth actually requested a writ never arose in Mines. Rather, we

merely reasoned that any number of clerical errors could have led to the

delay. Id. at 965 (concluding that “[t]here are many more possibilities that

make it impossible for the [a]ssistant [d]istrict [a]ttorney to know whether a

writ he or she requested was in fact prepared”).6              Here, we sought to

eliminate the potential confusion caused by clerical error or other,

“plausible” reasons for the delay. See Thompson, 93 A.3d at 488-89. For

these reasons, we deem Mines inapposite.

         Moreover, A.D.A. Shver’s credible testimony did not further inform the

court.      Despite the admissibility of evidence tending to establish the

Commonwealth’s habitual use of the writ system, see Pa.R.E. 406, such

evidence does not pass the threshold requirements established in Hawk and

Caden; i.e., mere assertions of due diligence are insufficient, rather due

diligence requires affirmative action.         Thus, regardless of whether it is the

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6
  Notably, in the second delay considered in Mines, the evidence
demonstrated that a writ issued but was cancelled because there were no
beds available in the county jail to accommodate the defendant. See
Mines, 797 A.2d at 965. We held that such delays are not chargeable to the
Commonwealth. Id.



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common practice or standard procedure for the Commonwealth to request a

writ for a defendant’s transportation, and we presume that it is, the issue

here was whether the Commonwealth did so on a specific date. To be clear,

we do not question the trial court’s credibility determination.           See N.T.,

10/14/2014, 5-6.       Rather, we hold that the credible testimony of A.D.A.

Shver was insufficient to establish the Commonwealth’s due diligence on

May 9, 2011. See Hawk, 597 A.2d at 1145; Caden, 487 A.2d at 4.

         In   conclusion,   we     remanded      this   matter   and   directed   the

Commonwealth to establish that it sought Appellant’s presence at trial with

due diligence. Thompson. It was unable to do so with either documentary

or testimonial evidence. Ramos; Caden. Accordingly, the trial court erred

as a matter of law, and we deem this error to be an abuse of discretion.

Ramos. Despite its assertion to the contrary, the Commonwealth failed to

demonstrate that it took affirmative action to secure Appellant’s presence for

trial.    Hawk; Caden.           Accordingly, we may not excuse the delay in

Appellant’s trial from May 9, 2011, until October 25, 2011.               Selenski;

Pa.R.Crim.P. 600. For these reasons, the judgment of sentence is vacated;

the charges against Appellant are dismissed; and Appellant shall be

discharged.

         Judgment of sentence vacated.        Charges dismissed with prejudice.

Appellant discharged.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016




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