J-S65003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CZESLAW KUC

                            Appellant                 No. 964 EDA 2013


             Appeal from the Judgment of Sentence March 22, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007281-2012


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 15, 2014

        Appellant, Czeslaw Kuc, appeals from the judgment of sentence

entered by the Honorable Roxanne E. Covington, Court of Common Pleas of

Philadelphia County, contending that the Commonwealth violated his rights

to a speedy trial. After careful review, we affirm.

        On December 8, 2011, Kuc was charged via criminal complaint with

violations of the Uniform Firearms Act, terroristic threats, and simple

assault. After several listings were continued due to the absence of a Polish

interpreter for Kuc, as well as the absence of the complaining witness, the

Commonwealth moved to withdraw the complaint on March 22, 2012. The

Commonwealth subsequently re-filed the complaint on April 11, 2012.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      The case was listed for trial on September 17, 2012, and both parties

reported as ready for trial.   The case was postponed, however, due to a

“court continuance.” On December 5, 2012, both parties reported as ready

for trial, only to have the case continued due to the assigned judge’s

unavailability. The case was continued one more time due to the absence of

the Polish interpreter, and proceeded to a bench trial on March 22, 2013. At

the conclusion of the trial, the court found Kuc guilty on all charges, and

sentenced him to a term of incarceration of six to twelve months, to be

followed by a two year probationary period. This timely appeal followed.

      On appeal, Kuc raises only one issue.            Kuc argues that the

Commonwealth violated his right to a speedy trial. Specifically, Kuc argues

that the mechanical run date for Rule 600 was exceeded, and that the

Commonwealth did not establish that it had exercised due diligence in

bringing the case to trial.    Kuc contends that the Commonwealth was

required to demonstrate due diligence throughout the pendency of the case.

Kuc concedes that since the trial court calculated the run dates from the first

complaint filed, Commonwealth v. Meadius, 870 A.2d 802 (Pa. 2005)

does not apply.




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       In cases such as this one, Rule 6001 requires the Commonwealth to

bring a defendant to trial within one year of the filing of the criminal

complaint. See Pa.R.Crim.P., Rule 600(A)(3).          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.

Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006)

(citation omitted).

       Charges shall be dismissed under Rule 600 where a defendant on bail

is not brought to trial within 365 days of the date on which the criminal

complaint against him is filed. See Commonwealth v. Dixon, 589 Pa. 28,

37, 907 A.2d 468, 474 (2006). See also Pa.R.Crim.P., Rule 600(A)(3), 42

PA.CONS.STAT.ANN. (trial “shall commence no later than 365 days from the

date on which the complaint is filed.”).         Rule 600, however, specifically

contemplates that certain periods of time shall be excluded in calculating

compliance with the rule. Rule 600 defines excludable time as follows:

       (C) In determining the period for commencement of trial, there
       shall be excluded therefrom:

____________________________________________


1
 Prior Rule 600 was rescinded on October 1, 2012, and new Rule 600 was
made effective on July 1, 2013. See 42 Pa.B. 6622. Since prior Rule 600
was in effect during the trial court’s decision, our analysis will focus on that
version of the Rule.



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      (1) the period of time between the filing of the written complaint
      and the defendant's arrest, provided that the defendant could
      not be apprehended because his or her whereabouts were
      unknown and could not be determined by due diligence;

      (2) any period of time for which the defendant expressly waives
      Rule 600;

      (3) such period of delay at any stage of the proceedings as
      results from:

      (a) the unavailability of the defendant or the defendant's
      attorney;

      (b) any continuance granted at the request of the defendant or
      the defendant’s attorney.

Pa.R.Crim.P., Rule 600(C), 42 PA.CONS.STAT.ANN.

      Furthermore, even where a Rule 600 violation occurs, a motion to

dismiss should be denied where “excusable delay” occurs. “‘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.” Commonwealth v.

Jones, 886 A.2d 689, 700 (Pa. Super. 2005) (citation omitted).

      Based upon our interpretation of the above-cited provisions of Rule

600, it is evident that Kuc was not entitled to the dismissal of his case. In

deciding whether a violation has occurred it is important to keep in mind

how Rule 600 is to be applied. An en banc panel of this Court stated the

following in this regard:

      [W]hen 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

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      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.

      So long as there has been no misconduct on the part of the
      Commonwealth in an effort to evade the fundamental speedy
      trial rights of an accused, Rule [600] must be construed in a
      manner consistent with society's right to punish and deter crime.
      In considering [these] matters ..., courts must carefully factor
      into the ultimate equation not only the prerogatives of the
      individual accused, but the collective right of the community to
      vigorous law enforcement as well.

Commonwealth v. Ramos, 936 A.2d 1097, 1100-1101 (Pa. Super. 2007)

(en banc) (citing Commonwealth v. Hunt, 858 A.2d 1234, 1238-39 (Pa.

Super. 2004) (en banc)).

      Here, the Commonwealth filed the initial criminal complaint on

December 8, 2011. It is undisputed that both the Commonwealth and Kuc

were ready for trial on September 17, 2012, or 279 days later.             See

Appellant’s Brief, at 15.   Furthermore, it is undisputed that all subsequent

continuances of the trial were not at the Commonwealth’s request. The trial

court found that all time after September 17, 2012, was excusable delay.

      Kuc contends that the Commonwealth failed to establish that it

exercised due diligence during the early stages of the litigation, when it

failed to secure the appearance of the complaining witness, or a Polish

interpreter. “Due diligence does not require perfect vigilance and punctilious


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

has been put forth.” Jones, 886 A.2d at 700 (citation omitted). Since the

Commonwealth was in fact prepared to go to trial within the 365 day period,

the trial court did not abuse its discretion in finding that the Commonwealth

had made a reasonable effort to comply with Rule 600.       Thus, Kuc’s sole

issue on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

      Judge Platt joins in the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014




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