J-S26042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY K. WILKINS                         :
                                               :
                       Appellant               :   No. 996 EDA 2018

             Appeal from the Judgment of Sentence March 22, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009333-2016


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                              FILED JULY 1, 2019

       Gregory K. Wilkins (Wilkins) appeals a judgment of sentence entered in

the Court of Common Pleas of the First Judicial District (trial court) following

his convictions for robbery and possession of a firearm by a prohibited

person.1    He argues that the trial court erroneously denied his motion to

dismiss under Pennsylvania Rule of Criminal Procedure 600. We agree and

vacate the judgment of sentence.




____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1See 18 Pa.C.S. § 3701 (robbery); 18 Pa.C.S. § 6105 (weapon possession by
prohibited person). A nolle prosequi was entered as to several related charges
at the conclusion of sentencing.
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                                       I.

      The relevant parts of this case’s procedural history were summarized by

the trial court as follows:

      On June 7, 2016, [Wilkins] was arrested and charged with, inter
      alia, robbery and possession of a firearm by a prohibited person.
      On June 23, 2016, the Commonwealth’s request for a continuance
      for no severance of [Wilkins] and his co-defendant at the
      preliminary hearing was granted. The co-defendant’s counsel was
      unavailable, resulting in the Commonwealth’s requests. On July
      22, 2016, the Commonwealth’s request for a continuance to relist
      [Wilkins’] case for an indicting grand jury was granted. On August
      26, 2016, the Commonwealth’s request for a continuance for
      status of the indictment was granted. On September 16, 2016,
      the Commonwealth’s request for a continuance due to no
      indictment from the grand jury was granted. The co-defendant
      then made a motion for recusal that was granted. On September
      26, the Commonwealth’s request for a continuance was granted.
      On October 6, 2016, all charges were held for court against
      [Wilkins].

      On November 9, 2016, [Wilkins] rejected the Commonwealth’s
      offer at the pre-trial conference. On November 29, 2016, a
      scheduling conference was held and the case was listed for a jury
      trial on March 27, 2017. . . [O]n March 30, 2017 . . . the case
      was rescheduled for a jury trial on May 15, 2017. On the date of
      the rescheduled jury trial, the Commonwealth requested a
      continuance for further investigation, [which] was granted. The
      jury trial was rescheduled for August 7, 2017.

      On July 31, 2017, [Wilkins] filed a motion to dismiss pursuant to
      Rule 600 [and a cursory hearing on the motion was held on August
      7, 2017.] The jury trial was rescheduled for October 23, 2017.

Trial Court Opinion, 10/11/2018, at 1-2.

      The Commonwealth filed a written response to Wilkins’ motion to

dismiss, asserting for the most part that all of the time relevant to this appeal

was excluded for Rule 600 purposes due to “court congestion” which the


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Commonwealth had “no control over.” Commonwealth Response, 9/12/2017,

at 2-3.

        The hearing on Wilkins’ Rule 600 motion to dismiss was brief. Defense

counsel asserted at the hearing that all of the time which had elapsed in the

case was attributable to the Commonwealth because it had failed to exercise

due diligence.     See Motion Hearing Transcript, 8/7/2017, at 6-7.        The

Commonwealth said little at the hearing and only briefly discussed its

unsuccessful plans to secure a grand jury indictment and make the

complainant available for trial. Id. at 3, 5-6. The Commonwealth did not

specify when contact with the complainant had been lost or what effort had

been taken to reach him. Id. 5-6. Nor did the Commonwealth discuss court

congestion as causing any delays.

        In response to defense counsel’s argument, the trial court did not make

any specific inquiry into the time periods in question. The trial court made no

rulings regarding periods of delay caused by the Commonwealth, the defense

or the judiciary. Instead, the trial court asked defense counsel to address

Wilkins’ bail status. Id. at 7-8.

        The motion to dismiss was denied without opinion on September 15,

2017.     Wilkins filed a motion for reconsideration of that ruling which was

denied on October 19, 2017. The jury trial began on October 23, 2017, and

Wilkins was found guilty of robbery and possession of a firearm by a prohibited

person and was sentenced on the robbery count to a prison term of between


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three-and-one-half and seven years. On the weapon possession count, he

received a concurrent prison term of between one and two years.

       Wilkins appealed, asserting in his Rule 1925(b) Statement that the

Commonwealth’s failure to exercise due diligence resulted in a violation of his

speedy trial rights under Rule 600. See Rule 1925(B) Statement of Errors

Complained of on Appeal, 5/1/2018, at 1.2 He now presents one issue for our

consideration:

       Did not the trial court erroneously deny [Wilkin’s] motion to
       dismiss . . . where [he] was tried well beyond the amended run
       date and the Commonwealth did not establish due diligence, as it
       failed to provide discovery in a timely manner and did not account
       for complainant’s failures to appear or secure complainant’s
       presence until after the amended run date?

Appellant’s Brief, at 3.




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2 The Commonwealth argues in its brief that Wilkins waived his speedy trial
claims by failing to provide “relevant analysis” in his 1925(b) Statement
regarding the excluded periods of delay. Appellee’s Brief, at 5. In this regard,
the respective burdens of the parties are long settled. Once a year has elapsed
from the date charges are filed, a defendant only has to assert that the
Commonwealth failed to exercise due diligence during the relevant times. See
Pa.R.Crim.P. 600(D). The Commonwealth must then show that enough time
was properly excluded from the speedy trial calculation to warrant denial of
the motion. See e.g., Brown v. Commonwealth, 584 A.2d 902, 906 (Pa.
1990) (holding that Commonwealth’s lack of evidence showing its efforts to
prepare for trial “constitutes a failure to exercise due diligence.”). Because
Wilkins’ motion was initially denied by order and without a written opinion, he
preserved his present claim for appeal. We note that in its subsequent Rule
1925(a) opinion, the trial court quoted and directly addressed Wilkins’ 1925(b)
Statement without finding it to be deficient.


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                                               II.

        Generally, Rule 600 protects the speedy trial rights of the accused, as

well as society’s interest in prosecuting crimes. Commonwealth v. Watson,

140 A.3d 696, 698 (Pa. Super. 2016).3 The Rule mandates that a “[t]rial in a

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3   Rule 600 provides in relevant part:

        (A) Commencement of Trial; Time for Trial

           (1) For the purpose of this rule, trial shall be deemed to
           commence on the date the trial judge calls the case to trial,
           or the defendant tenders a plea of guilty or nolo
           contendere.
           (2) Trial shall commence within the following time periods.
                  (a) Trial in a court case in which a written complaint
           is filed against the defendant shall commence within 365
           days from the date on which the complaint is filed.

                                       ....

        (C) Computation of Time

           (1) For purposes of paragraph (A), periods of delay at any
           stage of the proceedings caused by the Commonwealth
           when the Commonwealth has failed to exercise due
           diligence shall be included in the computation of the time
           within which trial must commence. Any other periods of
           delay shall be excluded from the computation

                                           ....

           (3)(a) When a judge or issuing authority grants or denies
           a continuance:
                 (i) the issuing authority shall record the identity of
           the party requesting the continuance and the reasons for
           granting or denying the continuance; and
                 (ii) the judge shall record the identity of the party
           requesting the continuance and the reasons for granting or



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court case in which a written complaint is filed against the defendant shall

commence within 365 days from the date on which the complaint is filed.”

Pa.R.Crim.P. 600(A)(2)(a).          The final day of that period is called the

“mechanical run date.” See generally Commonwealth v. Ramos, 936 A.2d

1097, 1101-04 (Pa. Super. 2007). If the proceedings are delayed for reasons

enumerated in Rule 600, then such periods may be excluded from the

computation of time at the trial court’s discretion, and the mechanical run date

may be adjusted accordingly. See id.4

       Whenever a continuance is granted in a case, the trial court must

identify the party who requested it, the reasons for granting it, and whether

the time will be included in “the computation of the time within which trial



____________________________________________


           denying the continuance. The judge also shall record to
           which party the period of delay caused by the continuance
           shall be attributed, and whether the time will be included
           in or excluded from the computation of the time within
           which trial must commence in accordance with this rule.

Pa.R.Crim.P. 600.

4  The trial court’s rulings as to computation of time under Rule 600 are
reviewed under an abuse of discretion standard. See Commonwealth v.
Carter, 204 A.3d 945 (Pa. Super. 2019). “An appellate court must view the
facts in the light most favorable to the prevailing party.” Id. (quoting
Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa. Super. 2018)). “[W]hen
considering the trial court’s ruling, this Court “is not permitted to ignore the
dual purpose behind Rule 600 ... (1) the protection of the accused’s speedy
trial rights, and (2) the protection of society.” Id. To the extent a trial court’s
ruling on the computation time is “framed as a legal issue,” the standard of
review is de novo. Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).


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must commence[.]”        Pa.R.Crim.P. 600(C)(a)(i)-(ii).      If trial does not

commence within the time required by Rule 600, the defendant must seek

relief in the form of a motion to dismiss. See Pa.R.Crim.P. 600(D). In doing

so, a defendant does not have to show that he suffered prejudice as a result

of delay. See Commonwealth v. Kearse, 890 A.2d 388 (Pa. 2005).

      The trial court must then hold a hearing on the motion and may exclude

time from the Rule 600 calculation if “the delay occurred as the result of

circumstances beyond the Commonwealth’s control and despite its due

diligence[.]” Pa.R.Crim.P. 600, cmt; see Commonwealth v. Goldman, 70

A.3d 874, 879 (Pa. Super. 2013). “[I]n assessing any period of delay under

Rule 600, it is critical to ascertain the cause of such delay. Stated in the most

general terms, when the Commonwealth causes delay, the Rule 600 clock

continues to tick; when the defendant causes delay, the clock stops.”

Commonwealth v. Barbour, 189 A.3d 944, 958 (Pa. 2018) (emphasis in

original).

      In Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017), our Supreme

Court addressed when time is properly excluded for speedy trial purposes.

The Court held that “time attributable to the normal progression of a case

simply is not [an excludable period of] ‘delay’ for purposes of Rule 600.” Mills,

162 A.3d at 325. The trial court must instead distinguish the “time necessary

to ordinary trial preparation [from] judicial delay arising out of the court’s own

scheduling concerns.” Id.


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      Mills clearly stated that the time which passes in the “normal

progression of a case” must be included in the Rule 600 computation unless

the Commonwealth can show it exercised due diligence during the period or

the record establishes that the judiciary or the defense was responsible for

the delay. Mills, 132 A.3d at 325; Pa.R.Crim.P. 600(C). Simply put, if there

is no basis to exclude a period of time, then it counts toward the time in which

a defendant must be tried. See Barbour, 189 A.3d at 958.

      Mills   continued   to   apply   the    long   established   rule   that   the

Commonwealth has a burden to prove that it acted with due diligence during

all stages of a criminal case. See Mills, 132 A.3d at 324; Commonwealth

v. Burno, 154 A.3d 764, 794 (Pa. 2017); Commonwealth v. Brown, 584

A.2d 902, 908 (Pa. 1990) (“We hold that due diligence likewise imposes on

the government the duty to employ simple recordkeeping systems in

circumstances such as this.”).     To prove it acted with due diligence, the

Commonwealth must demonstrate by a preponderance of the evidence that it

“put forth a reasonable effort.” Commonwealth v. Selenski, 994 A.2d 1083,

1089 (Pa. 2010).

                                       III.

      In this case, the trial court found in its Rule 1925(a) opinion that a total

of 504 days had elapsed between the charging date (June 7, 2016) and the

date of trial (October 23, 2017), but that only 356 days were attributable to

the Commonwealth for the purposes of Rule 600.              Trial Court Opinion,


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10/11/2018, at 7. The Commonwealth does not dispute any of the time the

trial court attributed to it.

        As to the 145 days which were excluded from the Rule 600 computation,

the defense took responsibility for a 29-day period between June 23, 2016,

and July 22, 2016.5 This brought the disputed time to a total of 116 days,

which the trial court divided into four separate periods, each of which is

independently dispositive in this appeal. However, the trial court gave little

to no explanation for the exclusion of that time:

       On June 7, 2016, Wilkins was charged, and on June 23, 2016, his
        first preliminary hearing was reset to a later date. The trial court
        ruled that this 16-day period was not chargeable to the
        Commonwealth. See id., at 6.

       On October 6, 2016, all charges were held for court against Wilkins
        until November 9, 2016. The trial court ruled that this 34-day
        period was “not chargeable against the Commonwealth as
        normal trial progression.” Id., at 7 (emphasis added).

       On November 9, 2016, Wilkins rejected a plea offer and a
        scheduling conference was held on November 29, 2016. The trial
        court ruled that this 20-day period was not chargeable to the
        Commonwealth. Id.

       On March 30, 2017, the trial date was continued to May 15, 2017.
        The trial court ruled that this 46-day period of delay was
        attributable to the defense. Id.



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5 These 29 days were charged to the defense due to the non-availability of the
co-defendant. Further, the parties appear to differ on whether the trial court
included or excluded the three-day period between March 27, 2017, and March
30, 2017. Regardless, this three-day period is moot because it cannot bring
the total period of delay over the 365-day threshold of Rule 600.


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       In declining to charge these periods to the Commonwealth, the trial

court did not follow the procedures for excluding time under Rule 600. This

error relieved the Commonwealth of its due diligence obligations and deprived

Wilkins of his speedy trial rights.

       The Commonwealth argues generally that all of the time was found to

be excludable “due to the trial court’s schedule and [Wilkins’] request for non-

mandatory discovery that the Commonwealth had no intention of introducing.”

Appellee’s Brief, at 8. However, the trial court’s Rule 1925(a) opinion does

not indicate that any of the excluded 116 days were attributed to judicial

delay. Nor does anything in the record support or even mention it as a reason

for excluding the time from Rule 600 computation. See Barbour, 189 A.3d

at 958.    The Commonwealth identifies no evidence that it acted with due

diligence during the relevant times or any evidence that the defense or the

judiciary caused those delays.6 Each of the relevant periods will be addressed

in more detail below.

       The first period at issue began on the date Wilkins was charged and

ended on the date that his first preliminary hearing was originally set. The

trial court gave no explanation in its Rule 1925(a) opinion as to why those 16



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6 The Commonwealth’s lack of evidence regarding judicial delay is curious in
light of the fact that it had asserted in its written response to Wilkins’ motion
that “court congestion” was a cause of all the periods now at issue. See
Commonwealth Response, 9/12/2017, at 2-3.


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days were chargeable to the defense rather than to the Commonwealth. In

its brief, the Commonwealth does not attempt to justify the exclusion of this

time from Rule 600 computation, stating only that the trial court acted within

“in its discretion.” Appellee’s Brief, at 9.

      The trial court erred because the Commonwealth did not carry its burden

of proving due diligence and there was no evidence of judicial or defense

related delay. The Rule 600 clock starts ticking once charges are filed, but

the trial court suspended the operation of the Rule without providing any

reason for doing so – which is not surprising since no valid basis is apparent

in the record.

      Adding those 16 days to the total undisputed period of Commonwealth

delay (356 days) puts the run date of Wilkins’ trial beyond the 365-day period

allotted by Rule 600. See Mills, 132 A.3d at 325 (rejecting claim that period

between the filing of complaint and a status conference was excludable for

Rule 600 purposes as the normal progression of the case). For this reason

alone, Wilkins’ Rule 600 motion should have been granted.

      It was also error for the trial court to exclude the time between October

6, 2016, and November 9, 2016 (34 days) on the ground that it was “not

chargeable against the Commonwealth as normal trial progression.”         Trial

Court Opinion, 10/11/2018, at 7. Id. Exclusion of time on that sole basis is

the exact opposite of what Mills mandates. As discussed above, the case

stands for the proposition that “normal trial progression” counts toward the


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time to commence trial under Rule 600.             Mills, 132 A.3d at 324-25. The

exception is when the Commonwealth can show it exercised due diligence or

the trial court determines the delay was caused by the defense or the

judiciary. See id.7

       The trial court here did not exclude the period based on a finding of due

diligence, judicial delay or defense delay.         By ruling that those days had

passed in the normal progression of the case, the trial court erred as a matter

of law because such time must be included in the Rule 600 calculation. See

Mills, 132 A.3d at 325; see also Commonwealth v. Peterson, 19 A.3d

1131, 1134–35 (Pa. Super. 2011) (an abuse of discretion is committed “if in

reaching a conclusion the law is overridden or misapplied[.]”).

       The period between November 9, 2016, and November 29, 2016, was

excluded without any explanation. Presumably, the trial court again found the

time to be attributable to the normal progression of the case. Mills holds that

such time is not a period of excludable “delay” for the purposes of Rule 600,

but rather must be charged to the Commonwealth.



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7 In the Mills concurrence, Justice Wecht expressed concern that trial courts
“too often make these judgments [regarding excludable time] without first
considering the Commonwealth’s due diligence obligation.” 132 A.3d at 326
(Wecht, J., concurring). Justice Wecht stressed that a recalculation of the
speedy trial period must always be done in accordance with the procedure
outlined in Rule 600, which “requires courts first to consider the
Commonwealth’s role in causing the delay at issue. Only if the Commonwealth
has discharged its duties with due diligence should a court consider other
causes for the delay.” Id.

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      As for the time between March 30, 2017, and May 15, 2017, the trial

court attributed the delay to the defense but did not provide any factual or

legal basis for that conclusion. This was the only disputed period which the

Commonwealth specifically addressed in its brief, asserting that the record

“supports the inference” that it was caused by the defense’s request for a

video which was non-mandatory discovery.         Appellee’s Brief, at 12.   The

Commonwealth refers to docket entries which indicate that it was ready for

trial during this span. Id.

      Yet the record does not show if the trial court ever ruled that the

discovery was non-mandatory, whether the Commonwealth diligently sought

to obtain it, or whether the Commonwealth was ready for trial. In fact, the

docket suggests that the Commonwealth was not ready at that time. An entry

for March 30, 2017, reads, “Commonwealth Request for Continuance

Discovery Incomplete: Video to be passed – No DNA and Fingerprint testing.

Defendant in Custody.”        (Docket Entry No. 72, 3/30/2017).   Further, the

Commonwealth was not ready to proceed at the end of the subject period

(May 15, 2017) since it had to move for a continuance of trial on that date

“for further investigation.” Trial Court Opinion, 10/11/2018, at 7.

      On appeal, the facts must be reviewed in the light most favorable to the

prevailing party but the only facts which may be considered are “limited to the

evidence on the record of the Rule 600 evidentiary hearing and the findings

of the trial court.” Kearse, 890 A.2d 388, 390 (quoting Commonwealth v.


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Williams, 876 A.2d 1018, 1020 (Pa. Super. 2005). Here, there is no basis in

the reviewable facts on which to affirm the trial court’s decision to exclude the

time between March 30, 2017, and May 15, 2017.

      To conclude, the Commonwealth admits that it caused 356 days of

delay, which is just nine days’ shy of the end of the speedy trial period. Each

of the four disputed periods of time (16, 34, 20 or 46 days) is dispositive, as

the addition of any one of those periods to the total sum would constitute a

violation of Rule 600. All of that time was erroneously excluded so Wilkins’

speedy trial rights were violated and his convictions cannot be sustained.

      Judgment of sentence vacated.        Appellant discharged.     Jurisdiction

relinquished.

      President Judge Panella joins the memorandum.

      President Judge Emeritus Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/19




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