J-S67032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellant

                     v.

CLINT ZAKRZEEWSKI

                          Appellee                     No. 3356 EDA 2015


                   Appeal from the Order October 5, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010187-2014


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED SEPTEMBER 26, 2016

      The Commonwealth appeals the October 5, 2015, order entered in the

Court of Common Pleas of Philadelphia County (“CCP”), which dismissed the

Commonwealth's prosecution of Clint Zakrzeeski (“Appellee”) for driving

while under the influence (“DUI”)-highest rate of alcohol 1st offense, 75

Pa.C.S.A. § 3802(a)(1), and DUI-highest rate of alcohol (BAC .16+) 1st

offense, 75 Pa.C.S.A. § 3802(c), based upon the Commonwealth's purported

failure to bring Appellee to trial within the applicable speedy trial time limits.

After a careful review, we reverse the order and remand for further

proceedings.

      The relevant facts and procedural history are as follows: On January

9, 2012, Appellee was arrested and charged with DUI-highest rate of alcohol


*Former Justice specially assigned to the Superior Court.
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1st offense.    Appellee was tried in the Municipal Court, and on August 11,

2014, the Municipal Court convicted Appellant of the offense. On September

9, 2014, the Municipal Court sentenced Appellee to thirty days to six months

in prison.1 On that same date, Appellee filed a timely de novo appeal to the

CCP.

        On September 19, 2014, the Commonwealth filed an Information

against Appellee, adding the charge of DUI-highest rate of alcohol (BAC

.16+) 1st offense. On September 30, 2014, Appellee was arraigned in the

CCP, and the trial court scheduled Appellee’s trial for December 5, 2014.

        The certified docket entries reveal that, on December 5, 2014,

Appellee was present but the trial was continued due to “Commonwealth Not

Ready-Complaining Witness Unavailable.” The docket entry contains a

notation “Earliest Possible Date,” and the trial was relisted to January 22,

2015.

        The certified docket entries reveal that, on January 22, 2015, the

Commonwealth was ready to proceed but the trial was continued due to

“Defense Request-Defense Attorney on Trial.” The docket entry contains a

notation “Earliest Possible Date,” and the trial was relisted to March 11,

2015.


____________________________________________


1
  We note that the certified record does not include the notes of testimony
from the proceedings occurring in the Municipal Court.



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       The certified docket entries reveal that, on March 11, 2015, both the

Commonwealth and Appellee were ready but the trial was continued due to

“Court Continuance-Judge Unavailable.”                 The docket entry contains a

notation “Earliest Possible Date,” and the trial was relisted to May 20, 2015.

       The certified docket entries reveal that, on May 20, 2015, Appellee

was present and ready to proceed but the trial was continued due to

“Commonwealth not Ready-Eyewitness Subpoena Failure.” The docket entry

contains a notation “Earliest Possible Date,” and the trial was relisted for

August 10, 2015.

       On May 26, 2015, Appellee filed a counseled motion seeking to dismiss

the charges pursuant to Pa.R.Crim.P. 1013(G), and the Commonwealth filed

a response.

       On August 10, 2015, the parties appeared in court and, following

argument,2 the CCP denied Appellee’s motion to dismiss.                     The certified

docket entries reveal the defense was ready for trial but the trial was

continued due to “Commonwealth Not Ready-Eyewitness at Funeral and AID

Officer on Fatal Investigation.”           The docket entry contains a notation

“Earliest Possible Date,” and the trial was relisted for October 5, 2015.

       On September 17, 2015, Appellee filed a second motion to dismiss

pursuant     to   Pa.R.Crim.P.     1013(G),      and    on   October   5,    2015,   the
____________________________________________


2
  We note that the certified record does not contain any notes from the
August 10, 2015, hearing.



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Commonwealth was ready to proceed to trial but the CCP held a hearing on

Appellee’s motion.       At the hearing, the assistant district attorney (“ADA”)

noted that it requested a trial continuance on August 10, 2015, because the

eyewitness to the offense was “at her uncle’s funeral on that day.”               N.T.,

10/5/15, at 4.    Moreover, the ADA noted that, at the previous hearing on

August 10, 2015, the CCP had ruled that the time from December 5, 2014,

to January 22, 2015, “was excludable due to the eyewitness being in the

hospital.”   Id. at 5.     The CCP concluded the Commonwealth had violated

Pa.R.Crim.P. 1013(G), and accordingly, on October 5, 2015, it granted

Appellee’s second motion to dismiss.

      On November 2, 2015, the Commonwealth filed a motion for

reconsideration    arguing,    inter   alia,   that   on   October   5,   2015,    the

Commonwealth was ready to proceed to trial and that the CCP erred in

granting the motion to dismiss. The Commonwealth indicated:

             [It is] the Commonwealth’s position that this was done so
      in error due to the fact that the eyewitness that was unavailable
      twice before, one listing she was in the hospital and the other
      listing she was at her uncle’s funeral, was now present in the
      Courtroom and that there are only eighty-two days actually
      attributable to the Commonwealth.

Commonwealth’s Motion for Reconsideration, filed 11/2/15.




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       The CCP did not rule on the motion for reconsideration but on

November 4, 2015, the Commonwealth filed a timely notice of appeal to this

Court.3 All Pa.R.A.P. 1925 requirements have been met.

       The Commonwealth contends the CCP erred in granting Appellee’s

motion to dismiss on October 5, 2015.            Specifically, the Commonwealth

presents the following issue:

       Whether the lower court erred in discharging [Appellee] under
       the speedy trial rule, where one continuance created 82 days of
       delay attributable to the Commonwealth but all other delays
       such as continuances in which the docket records witnesses were
       unavailable, were not caused by the Commonwealth or were
       beyond its control?

Commonwealth’s Brief at 2.

       Initially, we note that “[o]ur standard of review for evaluating claims

brought pursuant to Rule of Criminal Procedure 1013 is the same as that

applied to claims made under Rule of Criminal Procedure 600. The purpose

of the rules is similar, and the case law applies equally to both.”

Commonwealth v. Preston, 904 A.2d 1, 9 (Pa.Super. 2006) (en banc)

(footnote and citations omitted). In evaluating Rule 1013 and 600 issues,

our standard of review of a trial court's decision is whether the trial court

abused its discretion. Commonwealth v. Frye, 909 A.2d 853 (Pa.Super.

2006).
____________________________________________


3
  It is well settled that the filing of a motion for reconsideration does not toll
the time period in which to file a notice of appeal. See Commonwealth v.
Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000).



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     Furthermore:

     The proper scope of review. . .is limited to the evidence on the
     record of the Rule [1013 or 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 [the] Rule[s].
     Rule[s] [1013 and 600] serve[] 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[s] [1013 and 600] was not designed to insulate the
     criminally accused from good faith prosecution delayed through
     no fault of the Commonwealth.

Id. at 857 (quotation omitted).

     The first step in reviewing a Rule 1013 or 600 claim is to determine

the “mechanical run date,” the date which statute provides the criminal trial

must commence.      Commonwealth v. Lynch, 57 A.3d 120 (Pa.Super.

2012).   Relevantly, Pa.R.Crim.P. 1013 provides “[a] trial de novo in the

Court of Common Pleas shall commence within a period of 120 days after

the notice of appeal from the Municipal Court is filed. In all other respects

the provisions of Rule 600 shall apply to such trials in the Court of Common

Pleas.” Pa.R.Crim.P. 1013(G).

     Next, similar to Criminal Rule 600, Rule 1013 has “excludable time”

and “excusable delay:”

           The mechanical run date can be modified or
           extended by adding periods of time in which the


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           defendant causes delay.       It   then   becomes   an
           “adjusted run date.”

           Rules 600 and 1013 take into account both
           “excludable      time”    and    “excusable   delay.”
           “Excludable time” is defined by Rule 1013 itself as
           any period of time during which a defendant
           expressly waives his rights under the Rule. Delays
           caused by the unavailability of the defendant or
           counsel also are excludable, as are delays for
           continuances granted at the request of the defendant
           or counsel. “Excusable delay” is not expressly
           defined in either Rule 600 or in Rule 1013, 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.

     Preston, 904 A.2d at 11. The Commonwealth is entitled to an
     extension of time “upon a record showing that trial cannot be
     commenced within the prescribed period despite due diligence by
     the Commonwealth.” Pa.R.Crim.P. 1013(C)(1)(c). “Due-diligence
     is a fact-specific concept that is determined on a case-by-case
     basis. 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.” Commonwealth
     v. Booze, 953 A.2d 1263, 1273 (Pa.Super. 2008) (quotations
     and quotation marks omitted). “Judicial delay may justify
     postponing trial beyond the adjusted run date if the
     Commonwealth was prepared to commence trial prior to the
     expiration of the mandatory period but the court was unavailable
     because of ‘scheduling difficulties and the like.’” Preston, 904
     A.2d at 14 (citation omitted).

Lynch, 57 A.3d at 123-24.

     In the case sub judice, we must first determine the mechanical run

date under Rule 1013(G). As Appellee filed his notice of appeal in the CCP

for a trial de novo on September 9, 2014, the mechanical run date for

Appellee’s trial was January 7, 2015. See Lynch, supra (finding 120 day



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mechanical run date was triggered by the defendant’s filing of a notice of

appeal for a trial de novo from the sentence entered in the Municipal Court).

      We next determine whether any “excludable time” exists, and, if so,

the amount of “excludable time” is added to the mechanical run date to

arrive at an adjusted run date. Lynch, supra. Here, the time from January

22, 2015, to March 11, 2015, totaling 48 days, is attributable to Appellee’s

request for a continuance due to his defense attorney’s attachment in a

different trial.   The CCP properly found this time constitutes “excludable

time,” resulting in an adjusted run date of February 24, 2015.              See

Preston, supra; CCP Pa.R.A.P. 1925(a) Opinion, filed 1/27/16, at 3.

      The CCP granted Appellee’s motion to dismiss on October 5, 2015,

which is past the adjusted run date of February 24, 2015. Thus, we must

determine whether any “excusable time” exists, and if so, the amount of

“excusable time” results in an extension of the adjusted run date.

Commonwealth v. Ramos, 936 A.2d 1097 (Pa.Super. 2007) (en banc).

      We agree with the Commonwealth that the time from September 30,

2014 (the day of Appellee’s arraignment) to December 5, 2014 (the CCP’s

first trial listing), totaling 66 days, constitutes “excusable time,” and the CCP

erred in failing to take this time into consideration in ruling on Appellee’s

motion to dismiss. The record reveals that the period of delay is attributable

to the CCP’s calendar and not to the Commonwealth’s lack of diligence. See

id. at 1104 (holding trial court dockets are beyond the control of the


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Commonwealth and delay related thereto constitute “excusable delays”);

Commonwealth v. Jones, 886 A.2d 689, 701-02 (Pa.Super. 2005)

(holding the period between the defendant's arraignment and scheduled trial

was excusable because the trial court determined the date assigned for

trial). The inclusion of these 66 days results in an extension of the adjusted

run date to May 1, 2015. See Ramos, supra.

       Moreover, along this same vein, the time from March 11, 2015, to May

20, 2015, totaling 70 days, constitutes “excusable time.” The record reveals

the Commonwealth and Appellee were ready for trial on March 11, 2015;

however, the CCP judge was unavailable. Accordingly, the trial was relisted

for the “earliest possible date” of May 20, 2015.   As this time is attributable

to the CCP and beyond the control of the Commonwealth, it constitutes

“excusable time.”4      See Id.; Commonwealth v. Brown, 875 A.2d 1128

(Pa.Super. 2005) (where trial judge was involved in another trial, the delay

attributed thereto constituted “excusable time”); Commonwealth v. Jones,

679 A.2d 1297, 1299 (Pa.Super. 1996) (“[A] finding of due diligence may be

based on facts contained in uncontested notations in the Quarter Sessions

file where those facts indicate that the case was brought to trial on the


____________________________________________


4
  The CCP acknowledged this time was attributed to the court and extended
the adjusted run date accordingly. See CCP Pa.R.A.P. 1925(a) Opinion, filed
1/27/16, at 3.




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earliest possible date.”) (citation omitted)). The inclusion of these 70 days

results in an extension of the adjusted run date to July 10, 2015.

       Furthermore, we agree with the Commonwealth that the time from

December 5, 2014, to January 22, 2015, totaling 48 days, constitutes

“excusable time.”         The record reveals that this time is attributed to the

Commonwealth,        whose      eyewitness     was       unavailable.   Specifically,   the

uncontested docket entry for December 5, 2014, provides the trial was

continued     due    to     “Commonwealth          Not    Ready-Complaining       Witness

Unavailable.” Moreover, at the hearing on Appellee’s motion to dismiss, the

Commonwealth explained that the eyewitness was hospitalized, and thus

was unavailable to testify on December 5, 2014. N.T., 10/5/15, at 5. The

CCP acknowledged at the hearing that the witness’ hospitalization was

beyond the Commonwealth’s control and constituted “excusable time.” See

id.   Accordingly, contrary to the CCP’s subsequent indication in its Rule

1925(a) opinion,5 the Commonwealth sufficiently established that it was duly

diligent in attempting to bring Appellee to trial on December 5, 2014. See
____________________________________________


5
   In its Rule 1925(a) opinion, as to the delay from December 5, 2014, to
January 22, 2015, the CCP concludes the “record merely indicates that [the
Commonwealth’s] witness was unavailable and the [Commonwealth]
provided no evidence indicating that they acted with due diligence in
securing the witnesses [sic] availability.” CCP Pa.R.A.P. 1925(a) Opinion,
filed 1/27/16, at 4-5.    However, at the hearing on Appellee’s motion to
dismiss, the CCP acknowledged this time was excusable due to the
Commonwealth’s eyewitness being in the hospital. N.T., 10/5/15, at 5.
Thus, contrary to the CCP’s suggestion in its opinion, the Commonwealth
presented more than a mere assertion of witness unavailability.



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Frye, supra (holding delay caused by victim’s hospitalization was beyond

the   Commonwealth’s      control   and       constituted   “excusable   delay”);

Commonwealth v. Hunt, 858 A.2d 1234, 1243 (Pa.Super. 2004) (en banc)

(holding the Commonwealth’s request for a continuance based on the

victim’s absence from the country and unavailability was a circumstance

beyond the Commonwealth’s control, thus constituting “excusable time”).

Further, the docket entries reveal the case was relisted to January 22, 2015,

which was the “earliest possible date.”         The inclusion of these 48 days

results in an extension of the adjusted run date to August 27, 2015.

      Additionally, we agree with the Commonwealth that the time from

August 10, 2015, to October 5, 2015, totaling 56 days, constitutes

“excusable time.”    The record reveals the defense was ready for trial on

August 10, 2015, but the Commonwealth required a continuance due to the

unavailability of the eyewitness and the investigating officer. Specifically, in

addition to the uncontested August 10, 2015, docket entry notation

“Eyewitness at Funeral,” the Commonwealth indicated at the hearing that,

on August 10, 2015, the eyewitness was unavailable because she was

attending her uncle’s funeral. N.T, 10/5/15, at 4-5. Moreover, the

uncontested August 10, 2015, docket entry provides a notation that “AID

Officer on Fatal Investigation.” Accordingly, notwithstanding the CCP’s

indication in its Rule 1925(a) opinion, the Commonwealth sufficiently

established that it was duly diligent in attempting to bring Appellee to trial


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on August 10, 2015.6           See Commonwealth v. Staten, 950 A.2d 1006

(Pa.Super. 2008) (holding unavailability of the arresting officer, who was

assigned to serve warrants, was beyond the Commonwealth’s control such

that it constituted “excusable delay”); Hunt, supra.           Further, the docket

entries reveal the case was relisted to October 5, 2015, which was the

“earliest possible date.”        The inclusion of these 56 days results in an

extension of the adjusted run date to October 22, 2015, which is after the

date the CCP granted Appellee’s motion to dismiss.

       Finally, it bears mentioning that, in its Rule 1925(a) opinion, the CCP

suggests     that,   as   it   relates   to    the   Commonwealth’s   requests   for

continuances on December 5, 2014 (eyewitness unavailable) and August 10,

2015 (eyewitness and investigating officer unavailable), the Commonwealth

“failed to provide any supporting evidence indicating that they acted with

due diligence.” See CCP Pa.R.A.P. 1925(a) Opinion, filed 1/27/15, at 4-5.

The Commonwealth contends that, to the extent the CCP equated the

uncontested docket notations, as well as the prosecutor’s uncontroverted

representations, with “bald assertions of witness unavailability,” the CCP

abused its discretion. See Commonwealth’s Brief at 21. We agree.

____________________________________________


6
  In its opinion, the CCP indicated that, with regard to the Commonwealth’s
request for a continuance on August 10, 2015, the Commonwealth “failed to
provide any supporting evidence indicating that they acted with due
diligence in securing the availability of their witnesses.” CCP Pa.R.A.P.
1925(a) Opinion, filed 1/27/16, at 5.



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        This Court has recognized that the “evidence” required for a finding of

due diligence includes “uncontested notations in the Quarter Sessions file.”

Jones, 679 A.2d at 1299. See Commonwealth v. Nellom, 565 A.2d 770

(Pa.Super. 1989) (finding that the Commonwealth acted with due diligence

where the Quarter Sessions file indicated that the Commonwealth requested

the earliest possible date consistent with the court's business).      Moreover,

uncontroverted explanations offered by the prosecutor as to a witness’

unavailability may establish due diligence.7 Commonwealth v. Anderson,

959 A.2d 1248, 1251 (Pa.Super. 2008)               (indicating the prosecutor's

representation that officer, who may not have been a necessary witness,

had broken his back was sufficient to show Commonwealth was exercising

diligence).

               [O]ur Court has held that bald assertions of witness
        unavailability do not suffice, and that the Commonwealth must
        generally provide evidence of the facts supporting its request for
        an extension. However, as [this Court has observed,] “It is
        possible that the rules of evidence will not be strictly enforced at
        a Rule 11008 hearing as they are at trial.” This view of the less-
        than-exacting evidentiary requirements of the Rule has proven
        to be well-founded. A particular example of this phenomenon
        has surfaced time and again in our case law, and responding to
        it in numerous decisions this Court has held that a finding of due
        diligence may be based entirely on judicial notice taken by the
____________________________________________


7
  In the case sub judice, Appellee neither contested the accuracy of the
certified docket entries nor disputed the accuracy of the representations
made by the ADA at the hearing as to why certain witnesses were
unavailable.
8
    Rule 1100 is the predecessor to Rule 600.



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     hearing court of facts contained in uncontested notations in court
     records.

            Applying the reasoning of these cases[,]. . .we discern no
     rational basis for distinguishing between a finding of due
     diligence based on uncontested notations in court records, and a
     finding of due diligence based on uncontroverted assertions
     made by the Commonwealth at the Rule 1100 hearing or in its
     application for the extension.

Commonwealth v. Hollingsworth, 499 A.2d 381, 387-88 (Pa.Super.

1985) (en banc) (citations and quotation omitted) (emphasis in original)

(footnote added).

     For all of the foregoing reason, we conclude the CCP abused its

discretion in granting Appellee’s motion to dismiss pursuant to Rules

1013(g) and 600, and thus, we reverse and remand for further proceedings.

     Order reversed; Case remanded; Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2016




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