J-S41010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BRANDON CEPHAS                            :
                                           :
                    Appellant              :   No. 2060 EDA 2017

           Appeal from the Judgment of Sentence June 12, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007274-2015


BEFORE:    GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                  FILED SEPTEMBER 05, 2018

      Appellant, Brandon Cephas, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after a jury

convicted him of Possession of a Controlled Substance with the Intent to

Deliver (“PWID”), 35 P.S. 780-113(a)(30). Sentenced to one to three years’

incarceration, to be followed by a period of probation, he asserts that the trial

court abused its discretion in denying his motion to dismiss pursuant to

Pa.R.Crim.P. 600. We affirm.

      On July 2, 2015, the Commonwealth filed a written complaint charging

Appellant with narcotics-related offenses. On November 12, 2015, at a trial-

scheduling hearing, the Commonwealth requested a trial before a jury, and

the Honorable Carolyn H. Nichols scheduled trial for September 28, 2016.




____________________________________
* Former Justice specially assigned to the Superior Court.
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      On the scheduled date for trial, both the Commonwealth and Appellant

were ready to proceed, but the trial court granted Appellant’s co-defendant’s

request for a continuance and rescheduled trial for April 12, 2017.

      Appellant filed a motion to dismiss pursuant to Pa.R.Crim.P. 600 on

November 2, 2016. On January 12, 2017, the trial court dismissed Appellant’s

motion after conducting a hearing on the matter, ruling that court backlog

caused the delay in trial. As noted above, Appellant was eventually tried and

convicted on one count of PWID. This timely appeal followed.

      Appellant presents the following question for our review:

      DID THE LOWER COURT COMMIT AN                          ABUSE OF
      DISCRETION BY DENYING APPELLANT’S                      RULE 600
      MOTION?

Appellant’s brief, at 4.

      We review Appellant's Rule 600 claim according to the following

principles:

      In evaluating Rule [600] issues, our standard of review of a trial
      court's decision is whether the trial court abused its
      discretion. Judicial discretion requires action in conformity with
      law, upon facts and circumstances judicially before the court, after
      hearing and due consideration. An abuse of discretion is not
      merely an error of judgment, but if in reaching a conclusion the
      law is overridden or misapplied or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill will, as shown by the evidence or the record, discretion
      is abused.


      The proper scope of review is limited to the evidence on the record
      of the Rule [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.


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     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.

     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. Bethea, 185 A.3d 364, 370 (Pa.Super. 2018) (quoting

Commonwealth v. Wendel, 165 A.3d 952, 955–56 (Pa. Super. 2017)) (case

citation omitted) (emphases added).

     In pertinent part, Rule 600 provides:

     (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.


Pa.R.Crim.P. 600.

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                To    summarize,     the     courts   of   this
          Commonwealth employ three steps ... in determining
          whether Rule 600 requires dismissal of charges
          against a defendant.     First, Rule 600(A) provides
          the mechanical run date. Second, we determine
          whether any excludable time exists pursuant
          to Rule 600(C). We add the amount of excludable
          time, if any, to the mechanical run date to arrive at
          an adjusted run date.

          ***

          Rule 600[ ] encompasses a wide variety of
          circumstances under which a period of delay was
          outside the control of the Commonwealth and not the
          result of the Commonwealth's lack of diligence. Any
          such period of delay results in an extension of
          the run date. Addition of any Rule 600[ ] extensions
          to     the     adjusted     run     date     produces
          the final Rule 600 run date. If the Commonwealth
          does not bring the defendant to trial on or before the
          final run date, the trial court must dismiss the
          charges.

     Wendel, supra at 956 (citation omitted) (emphases added).

          It is long-established that judicial delay may serve as
          a basis for extending the period of time within which
          the Commonwealth may commence trial where the
          Commonwealth is prepared to commence trial prior to
          the expiration of the mandatory period but the
          court[,] because of scheduling difficulties or the like[,]
          is unavailable.

     Commonwealth v. Malgieri, 889 A.2d 604, 607–08 (Pa. Super.
     2005) (citation and internal quotation marks omitted); see
     also Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d
     678, 681 (1982) (“A judicial delay is a justifiable basis for an
     extension of time if the Commonwealth is ready to proceed.”)
     (citation omitted).


Bethea, 185 A.3d 364, 370–71 (Pa.Super. 2018).



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      Here, the criminal complaint was filed on July 2, 2015. Therefore, the

Rule 600 mechanical run date was July 2, 2016. Trial did not commence by

that date, however, and Appellant filed his Rule 600 motion to dismiss on

November 2, 2016.

      At the Rule 600 hearing, Appellant argued that the 321-day delay

occurring between the November 12, 2015, status hearing, where the

Commonwealth requested a jury trial, and the September 28, 2016, trial date

set by the court was attributable to the Commonwealth because the

Commonwealth failed to ask for an earlier trial date and never indicated its

readiness for trial prior to the mechanical run date. The trial court, however,

identified the court's congested docket as the sole cause of the 321-day delay

pushing the trial date beyond the mechanical run date, rather than the

Commonwealth's lack of due diligence.

      The record confirms that the delay was attributable to the schedule

limitations of the trial court. In such cases, judicial delay is excludable and

not chargeable to the Commonwealth. See Bethea, 185 A.3d at 372.

      Finally, we briefly discuss Commonwealth v. Mills, 162 A.3d 323, 325

(Pa. 2017), upon which Appellant relies.      In Mills, the Court addressed

whether the ordinary passage of 174 days from the filing of the complaint to

the trial-scheduling conference should be considered excludable delay, since

it was not attributable to the Commonwealth's lack of due diligence. Id. at

324 (citing Rule 600(C)(1) (Periods of delay at any stage caused by the

Commonwealth shall be counted in the 365-day tally. Any other periods of

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delay shall be excluded from the computation) and Rule 600(D)(1) (Failure to

meet the rule's prompt-trial requirement constitutes grounds for dismissal.

600(D)(1)). The outcome of defendant Mills' Rule 600 dismissal motion

turned on the question, as the 174 days, if deemed includable time, would

combine with other time attributable to the Commonwealth to bring the

calculation over 365 days.

       Differentiating between "time necessary to ordinary trial preparation

and judicial delay arising out of the court's own scheduling concerns[,]" id.

at 325, the Court rejected the notion that the former, which it fairly

characterized as "time during which no one is prepared for trial—or even

possibly could be ready[,]" is "delay" under either the letter or spirit of Rule

600:
       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.

Id.

       Therefore, the Court held the 174 days from the date of the complaint's

filing to the date of the trial-scheduling hearing was not "delay" but, rather,

time attributable to the normal progression of the case and, therefore,

includable time in the Rule 600 calculation. As such time combined with other

Commonwealth-attributable time to put the trial date beyond 365 days, the

Court concluded the trial court had properly granted defendant Mills' Rule 600

dismissal motion.

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      Following the reasoning of Mills, we include the 130 days running from

the filing of Appellant's complaint to the date of his trial-scheduling hearing,

as such normal progression of time did not represent "delay" for the reasons

explained by our Supreme Court. Nevertheless, because no other time was

attributable to the Commonwealth, Rule 600 dismissal does not apply in the

present case as it did in Mills. Here, the court's congested docket, alone,

caused the 321-day delay resulting in the setting of a trial date beyond 365

days. On the trial date, moreover, the Commonwealth stood ready, but

Appellant's co-defendant filed a motion to continue trial, which the court

granted. Accordingly, even when assessed in light of Mills, Appellant's Rule

600 motion was properly denied.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/18




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