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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    FARID BROWN                                :   No. 3166 EDA 2016

                   Appeal from the Order September 8, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002004-2013


BEFORE:      BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                                 FILED JUNE 21, 2018

        The Commonwealth of Pennsylvania appeals from the order dismissing

charges against Farid Brown due to the Commonwealth’s failure to comply

with Rule 600 of our Rules of Criminal Procedure, the “Prompt Trial” rule. The

Commonwealth claims the court erred in finding it had not completed

discovery within the 365-day period required by the rule. After careful review,

we affirm.

        Our scope and standard of review on this issue are as follows.

        Our standard of review relating to the application of Rule 600 is
        whether the trial court abused its discretion. Our scope of review
        is limited to the evidence on the record of the Rule 600 evidentiary
        hearing and the findings of the trial court. We must view the facts
        in the light most favorable to the prevailing party.


____________________________________________


   Former Justice specially assigned to the Superior Court.
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Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006) (citation

omitted).

      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. Hunt, 858 A.2d 1234, 1239 (Pa. Super. 2004) (en banc)

(citation omitted; brackets in original).

      “[T]o obtain relief, a defendant must have a valid Rule 600 claim at the

time he files his motion to dismiss the charges.” Commonwealth v. Hyland,

875 A.2d 1175, 1189 (Pa. Super. 2005) (citation omitted). The first step in

conducting a Rule 600 analysis is to calculate the “mechanical run date.”

Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa. Super. 2003).

      Rule 600 requires the Commonwealth to bring a defendant to trial within

365 days of the day the parties were notified that the record has been

remanded to the trial court after an appeal. See Pa.R.Crim.P. 600(A)(2)(e).

There is no dispute that the relevant start date was April 1, 2015. The

Commonwealth correctly notes, however, that 2016 was a leap year, causing

the mechanical run date to be March 31, 2016.




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      “If the Commonwealth attempts to bring a defendant to trial beyond the

365 day-period prescribed by Rule 600, and the defendant filed a Rule 600

motion to dismiss, the court must assess whether there is excludable time

and/or excusable delay.” Hunt, 858 A.2d at 1241 (citations omitted). The

court must exclude from the time for commencement of trial any periods

during which the defendant was unavailable, including any continuances

requested by the defendant. See Pa.R.Crim.P. 600(C)(1), (2); Rule 600,

Comment, Computation of Time. The amount of excludable time is added to

the   mechanical   run date    to   arrive   at an   adjusted run   date.   See

Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. 2007).

      Even where a violation of Rule 600 has occurred, we must apply a due

diligence analysis to assess whether the delay was excusable. See id.

‘“Excusable delay’ is not expressly defined in Rule 600, but the legal construct

takes into account delays which occur as a result of circumstances beyond the

Commonwealth’s control and despite its due diligence.” Hunt, 858 A.2d at

1241 (citation omitted). Due diligence must be determined on a case-by-case

basis. See id. “Due diligence does not require perfect vigilance and punctilious

care, but rather a showing by the Commonwealth that a reasonable effort has

been put forth.” Id., at 1241-1242 (citation and emphasis omitted). A delay

that is excusable provides an extension to the adjusted run date. See Ramos,

936 A.2d at 1103. Extensions added to the adjusted run date produce the final

Rule 600 run date. See id. The trial court must dismiss the charges if the


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Commonwealth does not bring the defendant to trial on or before the final run

date. See id.

      A brief review of the procedural history of this case is helpful in

understanding the parties’ arguments. In 2012, Brown was charged with

several offenses based upon the discovery of a firearm near Brown’s

passenger seat in a vehicle. The owner of the vehicle, Erica McKnight, was not

in the vehicle at the time.

      Brown filed a motion to suppress the firearm as the product of an illegal

search. At the hearing, the Commonwealth sought to present evidence from

a recording of a phone conversation between Brown and McKnight. See N.T.,

Suppression Hearing, 7/18/13, at 28. Brown’s co-defendant, the driver of the

vehicle, objected, asking for a transcription or recording of the entire phone

call. See id. The Commonwealth offered to play the entire recording in court,

but the court declined the offer and sustained the objection. See id., at 28-

29.

      Ultimately, the trial court granted Brown’s motion to suppress. The

Commonwealth appealed, arguing Brown either didn’t have a reasonable

expectation of privacy in the vehicle or, if he did, he abandoned it. A panel of

this Court, in a split decision, reversed the suppression order, concluding

Brown had no privacy interest in the vehicle, or even if he did, he abandoned

it. See Commonwealth v. Brown, No. 2370 EDA 2013, 2015 WL 7573022




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(Pa. Super., filed February 13, 2015) (unpublished memorandum). The record

was remanded to the trial court on April 1, 2015.

       Trial was scheduled for March 21, 2016. After a jury was picked, the

Commonwealth presented several motions in limine. One motion requested

the admission of the fact that Brown was subsequently found with McKnight’s

mobile phone in his possession. See N.T., Jury Trial, 3/22/16, at 9. Another

motion sought to present evidence that paperwork1 belonging to Brown was

found in McKnight’s vehicle nearly six months after his arrest. The

Commonwealth intended to present this evidence to bolster its assertion that

Brown had a relationship with McKnight and therefore a possessory interest in

McKnight’s vehicle in this case. See id., at 8.

       The trial court asked the Commonwealth how it planned to establish

Brown’s relationship with McKnight. The Commonwealth responded that it

intended to utilize a recording from a prison call between Brown and McKnight.

See id., at 15. At this point, Brown’s counsel, Gary Silver, notified the court

that the Commonwealth had never produced this recording in discovery. See

id., at 15-16.




____________________________________________


1 When the court asked the Commonwealth to identify the nature of this
paperwork, the ADA responded, “a subpoena, probably.” Id., at 14. When the
court asked, “[h]ave you ever seen it?,” the ADA responded, “[n]o.” Id. The
ADA did not yet have possession of the paperwork—“it [is] coming over from
City Hall[.]” Id., at 13.

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      The court asked the Commonwealth if the recording had ever been

produced. “Yes, I turned over the entire tape at the – before the last motion.”

See id., at 16.

      THE COURT:        And these are tapes you’re going to play during
                        the trial?

      [ADA]:            Well, depending on, kind of, how – what exactly
                        we can agree to with regard to the relationship
                        between parties, I was either going to or not
                        going to. But, yes, I intend to – if there is no
                        agreement that she is his girlfriend, yes, I would
                        intend to play them.

      MR. SILVER:       With all due respect, Your Honor, I don’t have
                        any documentation that shows that I received
                        any tapes. I was given a transcript [of a] prison
                        call, it’s a one-page document, in two years, and
                        I’ve never received anything else. That’s not
                        what [the ADA] is talking about now. This
                        doesn’t have any of that information.

      THE COURT:        Do you have the receipt or something showing
                        that he received the tapes in discovery and
                        recordings?

      [ADA]:            I handed him the tapes, and I – they were
                        played during a motion.

                                      …

      THE COURT:        So where is there in the notes of testimony
                        evidence that you turned over to defense
                        counsel a copy of those telephone calls?

      [ADA]:            I gave it to them that day.

      THE COURT:        But where is that in the record? Mr. Silver says
                        it didn’t happen.

      MR. SILVER:       I don’t have any tapes. I have a file, I have
                        everything in there. This is a long case, I don’t

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                        have those tapes. And, clearly, they weren’t
                        played that day.

                                       …

                        I don’t have it, and I did not have it turned over
                        to me …. And, Judge, I would like to just
                        supplement that. I just looked over the exhibit
                        list that we were given today, and, even today,
                        this exhibit list doesn’t have the tape or CD on
                        it. And it actually doesn’t even have the
                        transcription that supposed was available on
                        July 11th, 18th and –

      [ADA]:            You have it right there in your hand.

      MR. SILVER:       I understand that, but it’s not even on the
                        exhibit list.

                                       …

                        And may just direct this, the transcript that I
                        have of the prison call is not the words and
                        substance that she’s telling this Court, that’s not
                        on this (indicating) transcript. That’s why I said,
                        is there another transcript? I only have this
                        (indicating) one.

      THE COURT:        It looks like 15 lines of transcript, and –

      MR. SILVER:       Yeah, 11 lines. Right. If this is it, I have this
                        (indicating). I don’t have a tape. And if there’s
                        some other transcript, I don’t have that. And
                        that other transcript was what was talked to –
                        about on July 11th, I assume, because it’s not
                        this transcript. Because this doesn’t say
                        anything about her being a girlfriend. It doesn’t
                        say anything about his mother, other than
                        mother F’r.

Id., at 15-25. The court ruled the prison call recording inadmissible.




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      Other intended witnesses were discussed, and the Commonwealth was

granted a brief recess. See id., at 34. After the recess, the Commonwealth

argued the court’s preclusion of the recording was an inappropriate remedy.

See id., at 37. The court allowed the Commonwealth to play the full fifteen-

minute recording for Brown in camera. See id., at 43.

      The Commonwealth played the recording for the court and Brown, and

stated that it intended “to introduce the relevant portions of the phone call”

that identified “McKnight as the defendant’s girlfriend.” Id. After Brown asked

the court what his options were after hearing the recording, the following

exchange occurred:

      THE COURT:        Whatever you want to do. You just ask me – tell
                        me what it is you want to do, and if the two of
                        you can’t agree, I’ll resolve it. I’m trying to get
                        this case to go to trial now that we have a jury,
                        if that’s possible.

                        I’m bothered by the last minute turning over of
                        the [recording.] I still roll up the windows on my
                        car, what can I tell you. The lack of a transcript.

                        There’s no transcript. How do we resolve the
                        issues of what’s being said on the tape? It’s not
                        all that crystal clear? And how do we figure out
                        what the DA’s describing as the relevant
                        portions are? What she’s going to introduce?

                        [There’s]    clearly    irrelevant,    prejudicial
                        information on that recording, so how do you
                        propose to resolve all this? And I ask you again,
                        are you prepared to go to trial in this case,
                        because it appears to me that you are not?

      [ADA]:            Yes. I would go through and stop and start
                        relevant –

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      THE COURT:        What are the relevant portions?

Id., at 44-45. The Commonwealth answered the court’s query by identifying

several statements allegedly made by Brown in the recording. The

Commonwealth also identified a statement allegedly made by McKnight where

she referred to Brown as her boyfriend. See id., at 45.

      At this point, the court queried the Commonwealth as to how it would

handle the hearsay nature of McKnight’s alleged statement. See id. The

Commonwealth did not directly answer the court’s question, and began to

address other portions of the recording. See id., at 45-46.

      The court noted that it was unfair to Brown to have to address the

evidentiary issues associated with the recording on such short notice after a

jury had already been picked. See id., at 46. The court decided it was safer

to dismiss the jury before double jeopardy attached, and ordered the

Commonwealth to “do all the things you should have done in preparation for

today. Turn over whatever it is you expect to introduce at trial.” Id.

      At the Commonwealth’s request, the court set May 13th as the date for

a status conference to review whether the Commonwealth had provided a

copy of the recording to Brown. See id., at 48-49. Brown renewed his

argument that trial should commence immediately with the recording

precluded. See id., at 49-50. The court dismissed the argument, noting “If

we had gone to trial, it would have been precluded. But after listening to the




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tape, and listening to argument, we’re not going to trial. I’m going to give

them an opportunity[.]” Id., at 50.

       Brown filed his first Rule 600 motion on March 29th. After a hearing held

on April 15th, the court dismissed the motion due to Brown’s failure to

correctly identify the start date for Rule 600 calculations. See N.T., Hearing,

4/15/16, at 13.

       On May 12th, Brown filed his second Rule 600 motion. In it, he asserted

408 non-excludable days had passed since the case record had been

remanded from this Court, and the Commonwealth could not establish due

diligence.

       On June 9th, a hearing was held on Brown’s second Rule 600 motion.

Brown asserted the Commonwealth had finally provided a copy of the

recording on May 13th, and thus, the Commonwealth had not fulfilled its

pretrial obligations until that date. See N.T., Hearing, 6/9/16, at 9. The

Commonwealth reiterated its belief that the recording had been provided to

Brown at the suppression hearing. See id., at 12.2 However, it conceded it

had no documentation of producing the recording. See id.

       The ADA asserted she had produced the recording at the suppression

hearing. “In fact, I remember because Mr. Silver, as he often does, made me



____________________________________________


2 The ADA conceded she did not have the case file with her at this hearing,
nor had she prepared for the hearing, believing that it was merely a re-filing
of Brown’s first Rule 600 motion. See id., at 10.

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so angry that I in fact threw the tape onto the desk.” Id., at 15. The court

observed that if this had indeed happened, counsel for Brown’s co-defendant,

who was at the suppression hearing, would be able to testify to this exchange.

See id. The court concluded the Commonwealth’s argument required an

evidentiary hearing to resolve the factual dispute. See id. The court scheduled

the evidentiary hearing for July 18th.

      On that day, the Commonwealth requested a continuance to September

8th. It claimed this continuance was necessary to allow it to order the

transcripts for the April 15, 2016 hearing, and it was not prepared to proceed

without them. See N.T., Hearing, 7/18/16, at 5. When the court reporter

indicated she had not yet received a request for the transcripts for the April

15th hearing, the Commonwealth asserted it had asked the court’s secretary

for the transcripts on the Thursday before the Monday hearing. See id., at 5-

6. The Commonwealth claimed it had mistakenly relied on the court’s

secretary to order the transcript. See id., at 6. The court granted the

Commonwealth’s request for a continuance.

      On September 8th, a new ADA appeared for the Commonwealth. The

court identified the issue of whether the Commonwealth had provided a copy

of the recording to Brown at the suppression hearing as the only subject of

the hearing. The Commonwealth responded that it now took the position “that

an evidentiary hearing is not necessary to determine whether or not [the prior

ADA] had passed the tapes or not.” N.T., Hearing, 9/8/16, at 12. “[I]t’s [the


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Commonwealth’s] position that the Commonwealth was never required to

actually pass a copy of the recording[.]” Id., at 13.

      After hearing the Commonwealth’s arguments, the court granted

Brown’s second Rule 600 motion. The court found the Commonwealth had

failed to establish due diligence in providing the recordings to Brown. The

Commonwealth subsequently filed this timely appeal.

      At the outset of our legal analysis, we note the Commonwealth does not

dispute that the Rule 600 mechanical run date had passed prior to May 13,

2016. Rather, the Commonwealth’s arguments center on its belief that the

trial court misapplied the discovery rules in holding the Commonwealth had

not established due diligence.

      We therefore turn to Rule 573 of our Rules of Criminal Procedure, which

governs discovery in criminal cases. Specifically, the rule provides, in relevant

part, the following:

      (B) Disclosure by the Commonwealth.

            (1) Mandatory. In all court cases, on request by the
            defendant, and subject to any protective order which the
            Commonwealth might obtain under this rule, the
            Commonwealth shall disclose to the defendant’s attorney all
            of the following requested items or information, provided
            they are material to the instant case. The Commonwealth
            shall, when applicable, permit the defendant’s attorney to
            inspect and copy or photograph such items.

                  (g) the transcripts and recordings of any electronic
                  surveillance, and the authority by which the said
                  transcripts and recordings were obtained.

                                       …


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      (D) Continuing Duty to Disclose. If, prior to or during trial, either
      party discovers additional evidence or material previously
      requested or ordered to be disclosed by it, which is subject to
      discovery or inspection under this rule, … such party shall
      promptly notify the opposing party or the court of the additional
      evidence[.]

Pa.R.Crim.P. 573(B)(1)(g), (D) (emphasis supplied). “[Q]uestions involving

discovery in criminal cases lie within the discretion of the trial court and that

court’s decision will not be reversed” an abuse of discretion.” Commonwealth

v. Rucci, 670 A.2d 1129, 1140 (Pa. 1996) (citations omitted).

      The Commonwealth first argues it was not required to disclose the

existence of the recording at any time as Brown never specifically requested

it. See Appellant’s Brief, at 11. The Commonwealth highlights Brown’s failure

to request discovery in his written omnibus pre-trial motion and his failure to

object to assertions made by the substituted ADA at the September 8, 2016

hearing. However, our review of the law and the record does not comport with

the Commonwealth’s summary.

      It is true, under the rule, that the Commonwealth’s obligation to provide

even mandatory discovery is only triggered by a defense request for

discovery. However, Rule 573 does not require a written discovery request.

Rather, it requires the parties pursue informal discovery before seeking an

order compelling discovery. See Pa.R.Crim.P. 573(A). Thus, the fact that

Brown did not seek an order compelling discovery from the Commonwealth is

not conclusive proof that he never requested discovery.


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        Indeed, the record reveals that informal discovery occurred. A court

summary from March 6, 2013, indicates discovery was incomplete, as

“Ballistics” were “Missing.” Furthermore, it is clear the initial ADA understood

Brown had requested the recording, as she adamantly asserted she had

provided him with a copy at the suppression hearing.3 We therefore conclude

the Commonwealth’s first issue on appeal merits no relief.

        Next, the Commonwealth argues it was not required to provide a copy

of the recording to Brown. The Commonwealth asserts to this Court that it

was merely required to disclose the existence of the recording to Brown. It

contends this disclosure requirement was satisfied at the suppression hearing

when it first sought to introduce a portion of the recording.

        This argument fails as a matter of law. Rule 573 requires more than

mere disclosure of a recording in the Commonwealth’s possession; it also

requires the Commonwealth to permit the defendant to copy the recording.

See Pa.R.Crim.P. 573(B)(1)(g). The Commonwealth does not argue, nor does

it identify, any evidence in the record capable of supporting such an argument,

that it provided Brown an opportunity to copy the recording prior to May 13,

2016.



____________________________________________


3 We note, without further comment, that it was the substitute ADA who
forcefully advanced the argument that discovery was never requested—
despite her acknowledgment that she had no personal knowledge of the
history of the case. The record does not disclose why the initial ADA was not
present at the September 8, 2016 hearing to advance this argument.

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      Our recent en banc decision in Commonwealth v. Maldonodo, 173

A.3d 769 (Pa. Super. 2017), is not to the contrary. While Maldonodo holds

that the Commonwealth’s discovery obligations are satisfied when the defense

has “access” to a recording in the Commonwealth’s possession, it also notes

this “access” must include the ability to copy. Id., at 782. Furthermore,

Maldonodo explicitly refutes the Commonwealth’s assertion that it had no

duty to produce the recording in its possession since the defense had “equal

access” to the prison records. See id., at n.9. Thus, the Commonwealth’s

argument that mere disclosure of the existence of the recording, once it was

in the Commonwealth’s possession, was sufficient under Rule 573 is

unavailing.

      As the Commonwealth has failed to establish a right to relief, we affirm

the order dismissing the charges.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/18




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