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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :     IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :          PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM DRUMMOND                           :
                                               :     No. 1998 EDA 2015
                       Appellant

              Appeal from the Judgment of Sentence June 9, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004390-2013



BEFORE: OTT, SOLANO, JENKINS, JJ.

MEMORANDUM BY OTT, J.:                                    FILED OCTOBER 10, 2017

       This matter returns to this Court following remand by our Supreme

Court.1 The sole issue is Drummond’s claim that the trial court erred in failing

to dismiss the matter pursuant to Pa.R.Crim.P. 600, regarding speedy trials.

Our Supreme Court has directed that we consider the issue in light of the

recent Pennsylvania Supreme Court decision in Commonwealth v. Mills, 162

A.3d 323 (Pa. 2017). In Mills, The Pennsylvania Supreme Court held that

“time attributable to the normal progression of a case is simply not ‘delay’ for

purposes of Rule 600.” Id. at 325. After reviewing the certified record, we

conclude we must remand the matter to the trial court for specific

determinations regarding “judicial delay.” Id.
____________________________________________


1  Commonwealth v. Drummond,                       2017   WL   3764527   (Table)   (Pa.
8/30/2017).
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       Briefly, 556 days had elapsed from the inception of this case on

December 14, 2010, and the scheduled trial date of June 23, 2014. It was

agreed between the parties that there were five days of excludable time.

There were also the 208 days between the arraignment and the originally

scheduled trial date of January 6, 2014, that the Commonwealth argued, and

trial court agreed, was also excludable. This panel originally determined that

the trial court did not err in excluding that time from Rule 600 consideration

due to the fact that: 1) the trial date was the earliest available date on the

trial court’s calendar, and 2) the “delay” was not attributable to the

Commonwealth. See Commonwealth v. Drummond, 161 A.3d 388 (Pa.

Super. February 24, 2017) (unpublished memorandum). That decision was

predicated on case law, effective at the time of our decision,2 and Comments

in the Rules of Criminal Procedure.3 Specifically, this Court found those 208

days to be excludable as delay time was not directly attributable to the

Commonwealth.        However, we acknowledged that our Supreme Court was

considering a similar claim in Commonwealth v. Mills, supra. Mills was

decided on June 20, 2017.


____________________________________________


2Commonwealth v. Jones, 886 A.2d 689 (Pa. Super. 2005) (time between
arraignment and first trial listing is not chargeable to the Commonwealth
where the trial court determined the trial date was the earliest possible date).

3 “Thus, the inquiry for a judge in determining whether there is a violation of
the time periods in paragraph (A) is whether the delay is caused solely by the
Commonwealth when the Commonwealth has failed to exercise due diligence.”
Pa.R.Crim.P. 600, Comment.

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      Relevant to this matter, Commonwealth v. Mills, supra, states:

      Upon review, we agree with Appellant that time attributable to the
      normal progression of a case simply is not “delay” for purposes of
      Rule 600. Accord Morgan, 484 Pa. at 123-24, 398 A.2d at 975.
      We realize that, given this Court’s holding that periods of judicial
      delay are excludible from calculations under the rule, see, e.g.,
      Commonwealth v. Bradford, 616 Pa. 122, 141, 46 A.3d 693,
      705 (2012), courts of original jurisdiction must apply judgment in
      distinguishing between delay attributable to the court and that
      which should be allocated to a party.

      These courts also have discretion, however, to differentiate
      between time necessary to ordinary trial preparation and judicial
      delay arising out of the court's own scheduling concerns.
      Accordingly, where a trial-ready prosecutor must wait several
      months due to a court calendar, the time should be treated as
      “delay” for which the Commonwealth is not accountable. Here,
      however, the Commonwealth does not argue that it was prepared
      for trial during the 174 days in issue.

      Under the Commonwealth's approach, time during which no one
      is prepared for trial—or even possibly could be ready—is “delay.”
      Such theory is not borne out in any of this Court's decisions, and
      we find it to be inconsistent with both the letter and spirit of Rule
      600.

Mills, 162 A.3d at 325.

      The Mills decision requires the trial court to determine whether specific

periods of elapsed time are attributable to either party or the court, and if the

court is responsible, whether that is time attributable to ordinary trial

preparation or delay arising from the court’s own scheduling concerns. These

determinations are not apparent from the current state of the certified record.

Further, there is no indication whether the Commonwealth was prepared to

go to trial at any point during the 208 days in question herein.




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        Accordingly, we are compelled to vacate the judgment of sentence and

remand this matter to the trial court to make the determinations required by

our Supreme Court in Mills. A hearing on this issue shall be conducted by the

trial court within 45 days of the return of the certified record.

        This matter is remanded to the trial court for action consistent with both

this decision and Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).

        Judgment of sentence is vacated. Jurisdiction relinquished.

        Judge Jenkins did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




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