J-A28035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL GLOVER                             :
                                               :
                       Appellant               :   No. 2721 EDA 2018

          Appeal from the Judgment of Sentence Entered May 31, 2018
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0000227-2017


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                              Filed: March 23, 2020

        Michael Glover appeals from the judgment of sentence imposed on May

31, 2018, in the Court of Common Pleas of Montgomery County. This followed

his non-jury conviction of one count each of terroristic threats and

harassment.1 The trial court sentenced him to an aggregate term of 19 to 38

months’ imprisonment. On appeal, Appellant claims the trial court erred in

denying his speedy trial motion. After a thorough review of the submissions

by the parties, relevant law, and the certified record, we affirm.

        On January 1, 2016, Appellant called his ex-girlfriend over 30 times at

her place of employment. Appellant made these calls from a blocked telephone

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2706(a)(1) and 2709(a)(5), respectively.
J-A28035-19


number and did not identify himself; however, the victim recognized his voice.

He told one of the victim’s co-workers he planned on killing the victim. He also

sent the victim multiple e-mails, two of which included threats to harm her.

       That same day, the police filed a criminal complaint against Appellant.

For reasons discussed in greater detail below, the police were unable to

immediately arrest Appellant. On October 19, 2017, Appellant filed a motion

asserting his right to a speedy trial had been violated, also known as a Rule

600 motion. A hearing took place on October 31, 2017, after which the trial

court denied the motion.

       Several months later, a stipulated bench trial was held, and, on May 31,

2018, the trial court sentenced Appellant as delineated above. Appellant filed

a timely post-sentence motion, which the trial court denied on September 11,

2018.2 The instant, timely appeal followed.

       On September 24, 2018, the trial court directed Appellant to file a

concise statement of errors complained of on appeal. On October 19, 2018,

Appellant filed an untimely Rule 1925(b) statement. Thereafter, the trial court



____________________________________________


2 On December 5, 2018, this Court issued a rule to show cause as to why the
appeal should not be dismissed as interlocutory as it appeared to us
Appellant, acting pro se, had also filed an untimely post-sentence motion and
the trial court’s September 11, 2018 order denied that motion, not the timely
one. Counsel filed a response on December 6, 2018; on December 11, 2018,
this Court discharged the rule to show cause and referred the issue to the
merits panel. Upon review of counsel’s response, we agree our issuance of the
rule to show cause was based upon an erroneous reading of the record and
the appeal is properly before us.

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filed an opinion, acknowledging the untimeliness of the statement but,

nonetheless, addressing the merits of Appellant’s claim. Trial Court Opinion,

1/22/19, at 7 n.8.

      Prior to addressing the merits of Appellant’s claim, we must address his

failure to file a timely Rule 1925(b) statement. In a criminal case, Rule

1925(c)(3) requires remand for the filing of a 1925(b) statement and

corresponding 1925(a) opinion where counsel failed to file a court-ordered

1925(b) statement. See Commonwealth v. Burton, 973 A.2d 428 (Pa.

Super. 2009). Where, as here, counsel filed an untimely Rule 1925(b)

statement, we may remand to allow for preparation of a responsive trial court

opinion. Id. at 432. However, when the trial court filed an opinion addressing

the issues presented in the belated Rule 1925(b) statement, we need not

remand and may instead consider the merits of the issues. Id. at 433; see

also Commonwealth v. Jabbie, 200 A.3d 500, 504-05 (Pa. Super. 2018)

(declining to remand or find waiver where trial court addressed merits of

issues raised in untimely Rule 1925(b) statement). Here, as the trial court

addressed the merits of Appellant’s Rule 600 claim, we decline to find waiver

or remand and will address the substantive issue.

      Appellant contends the trial court abused its discretion by denying his

motions for dismissal of charges on Pa.R.Crim.P. 600 speedy trial grounds.

We disagree.




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      We review an order denying relief under Rule 600 to determine whether

the trial court abused its discretion. See Commonwealth v. Robbins, 900

A.2d 413, 415 (Pa. Super. 2006). The scope of our review is limited to the

evidence presented at the Rule 600 hearing. See id. In performing our review,

we must view the evidence in the light most favorable to the party who

prevailed in the trial court. See id.

      We must consider the dual purposes that underlie Rule 600. See

Commonwealth v. Hunt, 858 A.2d 1234, 1239 (Pa. Super. 2004) (en banc).

First, obviously, we must protect the accused’s right to a prompt trial. See id.

Equally, however, we must consider society’s right to effective prosecution of

crimes. See id. Rule 600 was not intended to terminate a good faith

prosecution when trial is delayed through no fault of the Commonwealth. See

id.

      Generally, the Commonwealth must bring a defendant to trial within 365

days of the date the complaint is filed. See Pa.R.Crim.P 600(A)(2)(a).

However, if trial commences more than 365 days after the filing of the

complaint, a defendant is not automatically entitled to discharge pursuant to

Rule 600. See Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super.

2015).

      Rather, a court must first account for any excludable time and excusable

delay. See Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super.

2013). Excludable time is any period of delay that is attributable to the


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defendant or his counsel. See Commonwealth v. Matis, 710 A.2d 12, 16

(Pa. 1998). Excusable delay, in contrast, is any period of delay that is the

result of circumstances beyond the Commonwealth’s control despite its due

diligence. See Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. 2007).

        Due diligence by the Commonwealth does not require perfect vigilance,

but rather a showing of a reasonable effort to satisfy the dictates of Rule 600.

See Commonwealth v. Moore, 214 A.3d 244, 248-49 (Pa. Super. 2019).

“The Commonwealth . . . has the burden of demonstrating by a preponderance

of the evidence that it exercised due diligence.” Commonwealth v. Cole,

167 A.3d 49, 71 (Pa. Super. 2017) (citation and quotation marks omitted),

appeal denied, 186 A.3d 370 (Pa. 2018).

        Our courts employ a three-step inquiry for evaluating whether there is

a Rule 600 violation. We begin by calculating the “mechanical run date,” which

is 365 days after the complaint was filed. See Commonwealth v. Wendel,

165 A.3d 952, 956 (Pa. Super. 2017). Then, we determine if any excludable

time and excusable delay exists. See id. And, finally, we add the amount of

excludable time and excusable delay, if any, to the mechanical run date in

order to compute the adjusted run time. See id.

        In the instant matter, the criminal complaint was filed on January 1,

2016. Accordingly, the mechanical run date was December 31, 2016.3 The



____________________________________________


3   2016 was a leap year.

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Rule 600 hearing took place on October 31, 2017, 670 days after the filing of

the complaint. Appellant was not brought to trial until March 1, 2018, 791

days after the filing of the complaint.

        Initially, the 365th day, December 31, 2016, was a Saturday. It is settled

if the mechanical run date falls on a weekend or legal holiday, the days prior

to the next business day are excluded. See Commonwealth v. McCarthy,

180 A.3d 368, 376 (Pa. Super. 2018), appeal denied, 193 A.3d 346 (Pa.

2018). Therefore, because the next business day was January 2, 2017, it

became the adjusted run date. Moreover, because Appellant neither filed a

new Rule 600 motion below nor renewed his old one, he waived any claim the

Commonwealth did not act with due diligence in bringing him to trial during

the 122-day period between the Rule 600 hearing and trial.

        The record also reflects the period of delay between August 29, 2017,

and October 16, 2017, was caused by Appellant’s decision to attempt to obtain

private counsel. This 49-day delay does not count against the Commonwealth.

See Commonwealth v. Peterson, 19 A.3d 1131, 1137 (Pa. Super. 2011)

(holding delay caused by defendant’s request to obtain private counsel is

excludable). Moreover, the twelve days between the filing of Appellant’s

speedy trial motion and its disposition are excusable time. 4                See

Commonwealth v. Booze, 953 A.2d 1263, 1277 (Pa. Super. 2008).



____________________________________________


4   The 12th day, July 4, 2017, was a legal holiday.

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      Appellant focuses on the remaining time, which is dividable into three

distinct periods, the time between the filing of the complaint and locating

Appellant; the time between locating Appellant and arraignment; and the time

between arraignment and the filing of the Rule 600 motion. He claims the

Commonwealth failed to make reasonable efforts to search for Appellant

between January 1, 2016, and the date the police discovered he was

incarcerated in Philadelphia on March 17, 2016, a period of 77 days. See

Appellant’s Brief, at 15-23. Appellant also maintains the trial court erred in

failing to attribute the delays in arraigning Appellant from March 18, 2016 to

January 10, 2017, a period of 299 days to the Commonwealth rather than the

District Court. See id.; see also Appellant’s Reply Brief, at 1-13. Lastly,

Appellant avers the trial court erred in finding the administrative delays in

trying the case between arraignment and the Rule 600 hearing were

excusable. Appellant’s Brief, at 23-24; Appellant’s Reply Brief, at 13-16. We

disagree.

      The trial court described the events which took place after the police

filed the complaint as follows:

      On January 1, 2016, a criminal complaint was filed against
      [Appellant] for [t]erroristic [t]hreats and [h]arassment. An arrest
      warrant was issued on January 4, 2016. At the time the complaint
      was filed, authorities did not know [Appellant’s] whereabouts.
      (N.T. Rule 600 Hearing, 10/31/17, 14-15). On January 6, 2016,
      [Appellant] called District Court 38-1-18 (the “District Court”)
      regarding his knowledge of the arrest warrant and the court
      instructed him to contact the Montgomery Township Police
      Department and Officer Taylor Jones for more information. Id. at
      35. It does not appear that [Appellant] followed this instruction.

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     Officer Jones had filed the criminal complaint, was unaware of
     [Appellant’s] call to the District Court, and made attempts to
     locate [Appellant] in Philadelphia, PA and Bridgewater, NJ based
     upon information he received, but was unsuccessful. Id. at 15,
     17.

     On March 17, 2016, the officer received a “HIT” confirmation that
     [Appellant] had been arrested in Philadelphia, PA [on an unrelated
     matter]. Id. at 18. Officer Jones attempted to lodge a detainer
     but was unable to do so due to the active arrest warrant. Id. On
     March 15, 2016, an attorney entered his appearance for
     [Appellant] and called regarding [Appellant] turning himself in.
     Id. at 35, 50. The District Court informed the attorney he “had to
     again contact the police department and turn himself in at the
     Montgomery Township Building.” Id. at 35. On March 18, 2016,
     the police department dispatcher sent a copy of the arrest warrant
     to the Philadelphia prison where [Appellant] was incarcerated. Id.
     On March 21, 2016, another arrest warrant was issued and the
     police department dispatcher refaxed the arrest warrant to the
     Philadelphia prison so that it would be attached to [Appellant’s]
     file. Id. at 19, 20-21. That same date, the Montgomery Township
     Police Department called the District Court to see what
     information they had and the District Court [mistakenly] informed
     the police department that Philadelphia “had defendant and let
     him go instead of holding him for the [Montgomery Township
     Police Department].” Id. at 36. [Appellant], however, had been
     incarcerated the entire time dating from his arrest on March 17,
     2016. Id. at 58.

     On April 19, 2016, the officer received another “HIT” confirmation
     from Philadelphia and a request to fax the arrest warrant again to
     confirm that it was still active. Id. at 20. The police department
     dispatcher faxed a copy of the warrant “to ensure that [Appellant]
     was not released.” Id.

     On June 28, 2016, [Appellant’s] attorney called the District Court
     to ask for an arraignment to be scheduled. Id. at 40;
     (Commonwealth Exhibit 3 from October 31, 2017 Rule 600
     hearing). The District Court contacted the Philadelphia prison in
     an attempt to schedule a video arraignment but was informed that
     the equipment in Philadelphia was not working. (N.T. Rule 600
     Hearing, 10/31/17, at 40).[a] The District Court asked Officer
     Jones via email to forward dates in which he could pick up
     [Appellant] utilizing a writ and bring him to an arraignment. Id.

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     at 40. Officer Jones sent an email to the District Court to inform
     them that he was available for a preliminary arraignment on July
     20 and 21, 2016. Id. at 22. On June 29, 2016, the District Court
     administrator emailed a public defender to inform him of the
     situation and stating that District Court administrator “wasn’t sure
     how to proceed.” Id. at 40.[b] It does not appear that the District
     Court received a response to this email. On July 20, 2016, the
     District Court contacted [Appellant’s] attorney again because
     information in the “Vine Link” system indicated that he had been
     paroled. Id. at 37. Defense counsel indicated that he did not know
     if [Appellant] was still incarcerated or not and agreed to the
     District Court’s request to leave the arrest warrant in place. Id. at
     39. The District Court also informed the Montgomery Township
     Police Department of these developments. Id. at 37. Thus, the
     District Court did not hold a preliminary arraignment or
     preliminary hearing in July 2016.

           [a]The District Court administrator indicated on cross
           examination that it was a common problem for
           Philadelphia video equipment to be non-functioning
           and to bring [d]efendants in from Philadelphia by
           [w]rit. Id. at 47-48.

           [b]It is unclear why the District Court administrator
           contacted a public defender who was not [Appellant’s]
           attorney of record at this time.

     On November 8, 2016, [Appellant’s] attorney apparently
     contacted the District Court to request a preliminary arraignment
     and preliminary hearing and the District Court attempted to
     schedule this with Officer Jones for that date. Id. at 24. The
     District Court subsequently cancelled the arraignment and
     preliminary hearing for that date due to scheduling conflicts and
     miscommunications, and the parties attempted to reschedule it
     for November 10, 2016, but that date was also cancelled. Id. at
     25. Specifically, Officer Jones testified that when he told the
     administrator that he would have to check to see his witnesses’
     availability, “I believe [the administrator] misunderstood and
     thought it wouldn’t be possible so she cancelled the hearing at
     that point.”    Id. at 24. The District Court rescheduled the
     preliminary hearing and arraignment for January 10, 2017. Id. at
     25, 43. The District Court administrator testified that she did not
     know why the hearing was moved from November to January. Id.
     at 43. The preliminary arraignment/arrest ultimately occurred on

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     January 10, 2017[,] and [Appellant] waived his preliminary
     hearing and all charges were held over for court. Id. The
     Montgomery County Court of Common Pleas received the
     magisterial dockets on January 17, 2017.

     Judge Steven O’Neill set forth the subsequent procedural history
     of the case as follows:

          THE COURT:        [0]n the pretrial conference, it
                            appears that [Appellant] was
                            brought down on April 20[,2017].
                            And [defense counsel] on that day,
                            in accordance with the policy of
                            Judge O’Neill’s call of the pretrial
                            conference list, simply said this case
                            should be on a trial track and called
                            it for trial.

                            [Defendant] was again brought
                            down for call of the trial list—excuse
                            me. Bills of information were filed
                            on [April 3, 2017]. [Defense
                            counsel] entered his appearance on
                            May 5th of 2017. And it appears
                            that at the first call of the trial list,
                            which was May 15th of 2017, the
                            case was called for a jury trial and
                            placed on this court’s standby trial
                            list.

                            Now, again, for any purposes that
                            may become relevant for due
                            diligence to the District Attorney’s
                            Office, the Court’s procedures, this
                            Court’s standby trial list is simply an
                            inventory of cases that are called for
                            trial during a two-week—two-to-
                            four-week period that follows the
                            call of the trial.

                            They are called in based upon a
                            number of factors, but it is using the
                            judicial determination as to what is
                            called in. And generally we try to

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              follow a pattern of calling the older
              cases in before the newer cases.
              Nonetheless, it does not appear it
              was reached during that period of
              time.

              The Commonwealth filed a Motion
              to [a]dmit [e]vidence of [p]rior
              [b]ad [a]cts on May 17th. And then
              it followed a series of waiting further
              call of the trial list.

              Again, the next one was June 26th.
              The Court does note that during
              the—from May 22nd to about June
              22nd this Court was unavailable in
              that it was presiding in the case of
              the Commonwealth versus Cosby.
              So the next trial—there [were] no
              trials that were heard during that
              period of time.

              The next one was called on June
              26th, and for that period of time it
              was again on the standby trial list
              and not reached.

              It was then placed again on the July
              call of the trial list, on July 31st. The
              Court was—had numerous periods
              of time that it was unavailable due
              to either vacation or being off duty.
              Nonetheless, it was not reached
              during that next standby trial period
              of time.

              It was then called again for the—it
              was then on the 24th of August
              called for trial for a two-day jury
              trial to commence on August 29th of
              2017. That was by order of July
              24th. So it was reached at least
              seemed to be reached in there.


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J-A28035-19


                       Again, the Commonwealth filed
                       another [m]otion to [a]dmit [p]rior
                       [b]ad [a]cts. The Commonwealth
                       also filed another [m]otion to
                       [a]dmit [b]ad [a]cts. So there are
                       three motions outstanding.

                       And then on August 29th it lists here
                       that    defense    requested        a
                       continuance because [Appellant] at
                       that stage wanted private counsel.
                       The Court granted the continuance.

                       We then came back to another call
                       of the trial list, and at that stage the
                       defense         requested        another
                       continuance in that they were still
                       searching for counsel.

                                       [* * *]


          THE COURT:   September 11th we were all here.
                       There’s nothing written. It simply
                       says to be placed on the next call of
                       the trial list. Motion was listed for
                       defense. I don’t have any other
                       information. If there’s a dispute,
                       those are the kinds of things—

          [DEFENSE]:   Judge, I think he was removed from
                       that list based on the continuance
                       from the 29th.

          THE COURT:   Right. So I think all that did was
                       simply say it was on a list. We didn’t
                       put you on this list again because
                       we’re still waiting for him to find
                       counsel.

          [DEFENSE]:   Correct.

          THE COURT:   So it was again reviewed at this
                       most recent list and placed on our

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                               call of the trial list for October 16th.
                               And it was. Transportation orders
                               were done. And on October 16th,
                               again it appeared at this stage that
                               [defense counsel] would remain in
                               the case, that there was no outside
                               counsel coming in. And again it was
                               called again for a standby two-day
                               jury trial. And that was filed on
                               October 19th by the within [M]otion
                               to [D]ismiss and originally being
                               scheduled for the miscellaneous list,
                               but this Court had an opening and
                               scheduled it for today.

      Id. at 8-12.

Trial Court Opinion, 1/22/19, at 1-6.

      Initially, we find no abuse of discretion in the trial court’s finding the 77-

day period of time between the filing of the complaint and locating the

defendant is excludable. The comment to Rule 600 specifically provides “the

period of time between the filing of the written complaint and the defendant's

arrest [is excluded], provided that the defendant could not be apprehended

because his or her whereabouts were unknown and could not be determined

by due diligence.” Pa.R.Crim.P. 600, Comment, Computation of Time (2013).

      Here, the record reflects while Appellant’s criminal activity took place in

Montgomery County, he resided in Philadelphia and worked in New Jersey.

The records also reflect the police were in contact with the police departments

in both locations and they were unable to locate him. Further, there is no

indication on the record the District Court informed the police about

Appellant’s January 6, 2016 telephone call. Viewing the facts as we must in

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J-A28035-19


the light most favorable to the Commonwealth as the prevailing party, we

conclude the trial court did not abuse its discretion in finding the

Commonwealth made reasonable efforts to locate Appellant between January

1, 2016, and March 17, 2016. We therefore add those 77 days and arrive at

an adjusted run date of September 20, 2017.

      We next address the 299-day period it took to arraign Appellant, which

occurred between March 18, 2016, and January 10, 2017. In its opinion, the

trial court attributed the delays in arraigning Appellant to the District Court

stating:

      the record is replete with instances in which the District Court
      either received faulty information regarding [Appellant’s]
      incarceration status, incorrectly rescheduled the arraignment, did
      not follow up on when Officer Jones could bring [Appellant] in on
      a writ, or had no explanation for the lengthy delays in attempting
      to schedule the preliminary arraignment. To the extent Officer
      Jones can be labeled as an agent of the Commonwealth for
      purposes of Rule 600, he exercised due diligence in the three (3)
      months it took for [Appellant] to be apprehended. The officer
      investigated leads in Philadelphia, PA and Bridgewater, NJ in an
      attempt to find [Appellant]. This time [is] excludable under
      Pa.R.Crim.P. 600(C). Further, Officer Jones exercised diligence in
      his attempts to have a detainer placed on [Appellant] in
      Philadelphia and in attempting to coordinate the scheduling of a
      preliminary arraignment. The failure to schedule the arrest and
      preliminary arraignment in order to avoid a violation of the
      mechanical run date is almost entirely attributable to the
      ineffectual efforts undertaken by the District Court.

Trial Court Opinion, 1/29/19, at 9. The trial court also relied on the

Pennsylvania Supreme Court’s decision in Commonwealth v. Bradford, 46

A.3d 693 (Pa. 2012), for the proposition that delays caused by mistakes made

by the minor judiciary are excusable delays beyond the Commonwealth’s

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control. See Trial Court Opinion, 1/29/19, at 9-11; Bradford, 46 A.3d at 702-

05.

      In his brief and reply brief, Appellant disregards our obligation to view

the facts in the light most favorable to the prevailing party and urges us to

find the delay attributable to Officer Jones’ refusal to transport Appellant from

Philadelphia to Montgomery County; he further argues Bradford is

distinguishable and relies, instead, on a decision from a panel of this Court,

which post-dated the trial court’s opinion, Commonwealth v. Carter, 204

A.3d 945 (Pa. Super. 2019). See Appellant’s Brief, at 15-23; Appellant’s Reply

Brief, at 1-13.

      Initially, we are unpersuaded by Appellant’s attempt to convince us the

police were responsible for the delay in formally arresting and arraigning

Appellant because they refused to pick up Appellant in Philadelphia. Aside from

the fact this interpretation of the evidence ignores our standard of review, it

is simply unsupported.

      The only evidence of record cited by Appellant is an e-mail between

District Court administrator Paula Shumacher and Gregory Nestor of the

Montgomery County Public Defender’s Office. In that e-mail Ms. Schumacher

states, “I have a police department that doesn’t think they will go and get

[Appellant] just for an arraignment.” N.T., Rule 600 Hearing, 10/31/17, at

40-41, Commonwealth’s Exhibit 3. Defense counsel did not bring up this

statement at the hearing and did not question Schumacher about it. Id. at


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44-48. The e-mail itself provides no context for Schumacher’s statement and

no explanation for the basis of her belief the police were unwilling to transport

Appellant, which is particularly surprising given Officer Jones’ testimony and

his e-mail giving her the dates he was available to transport Appellant and

which Schumacher confirmed. See id. at 20-22, 40-41. Further, Schumacher

agreed it was the normal practice for the District Court to issue writs and have

defendants brought down from Philadelphia. See id. at 47-48.

      Moreover, Appellant’s attempts to bolster this argument by claiming

Officer Jones’ testimony supported the claim of the police’s unwillingness to

transport Appellant is equally unavailing. Defense counsel asked Officer Jones

a simple, factual question  did he transport anyone between Philadelphia and

Montgomery County during the period in question. Id. at 31. Officer Jones

answered, “no.” Id.

      This question is irrelevant. Defense counsel did not question Officer

Jones about the police department’s policy on transporting defendants

between counties, or if his department had any defendants other than

Appellant who required transportation during this period. Further, counsel did

not ask Officer Jones if he was ever asked to transport a defendant during this

period, or if he had ever refused such a request. We see nothing in his answer

that demonstrated any unwillingness on the part of the police to transport

Appellant or any other defendant between Philadelphia and Montgomery

County.


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        We have thoroughly reviewed both the Rule 600 hearing transcript and

accompanying exhibits in this matter. Viewing the evidence in the light most

favorable to the Commonwealth as the prevailing party, we see nothing which

would    cause   us   to   question   the   trial   court’s   finding   the   delay   in

arresting/arraigning Appellant was caused by anything other than the actions

of the district court. Thus, we next turn to the question of whether this delay

should be imputed to the Commonwealth.

        In Bradford, there was a delay in bringing the defendant to trial

because the district court failed to forward the preliminary hearing transcript

to the court of common pleas and thus, did not trigger the process which

would have placed the case in the computer and on the trial court’s and

Commonwealth’s calendars. Bradford, 46 A.3d at 695-96. The trial court

granted the defendant’s Rule 600 motion and dismissed the case, finding the

Commonwealth had notice of the case because an assistant district attorney

had appeared at the preliminary hearing and, therefore, due diligence required

the maintenance of a separate calendaring system, which would have

mitigated the effects of the district court’s error. Id. at 697.

        This Court affirmed on appeal. Our Supreme Court reversed, holding,

“we conclude that here the District Attorney’s office exercised due diligence

when it relied upon the minor judiciary following the specific, mandatory Rules

of Criminal Procedure, which placed upon the District Judge the obligation to

transmit timely papers to the common pleas court.” Id. at 704-05.


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      However, in a recent decision, a panel of this Court, in a factual scenario

which more closely resembles the instant matter, distinguished Bradford.

Carter, 204 A.3d at 948-49. In Carter, the defendant was incarcerated on an

unrelated matter at a state correctional institute at the time of the filing of the

criminal complaint in February 2017. Id. at 946. Although the police made

several inquiries of the district court, the defendant was not arraigned until

February 2018, because of problems with the video system and the refusal of

the Magisterial District Judge to allow the police to obtain an order of

transport. Id.

      After the trial court granted the Rule 600 motion, the Commonwealth

appealed. In a brief decision, which relied heavily on our deferential standard

of review and the necessity to view the facts in the light most favorable to the

prevailing party, this Court affirmed. See id. at 949. The Carter panel held

where the Commonwealth was aware of the defendant’s location at all times

and had means other than video to arraign him, it was the Commonwealth’s

responsibility to bring him to trial in a timely fashion. Id.

      Here, unlike in Carter, the trial court found the Commonwealth had

exercised due diligence. Moreover, unlike in Carter, the Commonwealth was

not always aware of Appellant’s location, in large part because of

misinformation provided to them by the district court. Another distinction from

Carter is the fact that the District Court, even after being given dates and

times of availability of both the police and the witness, sua sponte either failed


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to schedule the arraignment on the supplied dates and/or canceled the

arraignment without explanation.

      While we agree with the Carter panel it is the Commonwealth’s burden,

not the defendant’s, to see trial commence in a timely fashion, the reality is

the Commonwealth must do so in cooperation with the court system. The

practice in Montgomery County was for the District Court to schedule the

arraignment.    Where,      as   here,     it   puts     repeated    obstacles    in   the

Commonwealth’s path, including, on two occasions, misinforming the police

about Appellant’s whereabouts, and is unable to provide any explanation

whatsoever     for   its   pattern   of   failing   to    schedule   and/or      canceling

arraignments, we see no basis to find an abuse of discretion in the trial court’s

holding the Commonwealth exercised due diligence. Thus, we affirm the trial

court’s finding the 299-day period of delay between locating Appellant and

arraigning him was excusable. This brings the adjusted run date to July 16,

2018. Appellant’s trial took place on March 18, 2018, well before the adjusted

run date.

      Because the exclusion of the period between March 18, 2016, and

January 10, 2017, brings us under 365 days, we need not address Appellant’s

claim the trial court erred in finding the time between arraignment and the

Rule 600 hearing, not including the delays attributable to Appellant, excusable

because of problems with the court’s calendar. In any event, Appellant waived

any claim regarding the remainder of those days.


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      As the trial court states in its opinion, the focus of the Rule 600 hearing

was on the days between locating Appellant and official arrest/arraignment.

Trial Ct. Op., at 8. We see nothing in the record which demonstrates Appellant

ever challenged the trial court’s statement at the hearing the delays between

placing the case on the standby trial list in May 2017 and the Rule 600 hearing

were caused by problems with the court calendar and the aforementioned

delays caused by the defense. Because Appellant did not challenge this

conclusion below, he cannot now raise it for the first time on appeal. See

Pa.R.A.P. 302(a); see also Commonwealth v. Cain, 906 A.2d 1242, 1244

(Pa. Super. 2006) (speedy trial issue waived on appeal when not properly

presented to the trial court).

      Even if this were not the case, we would still find the claim waived.

Appellant’s argument on this issue consists of four sentences and is devoid of

citation to the record or to any pertinent legal authority. It does not contain

any argument as to why we should disregard settled law that states delays

caused by administrative decisions of the courts are excused. See

Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa. Super. 2011);

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007) (delays

caused by court’s unavailability are excused). Appellant’s failure to develop a

meaningful argument with citation to relevant, legal authority on this claim in

his appellate brief constitutes a waiver of the issue. See Commonwealth v.

Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (concluding arguments which


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are undeveloped and lack citation to factual background or certified record are

waived). Thus, Appellant waived this claim for this reason as well.5

       Appellant’s claim is without merit. Accordingly, we affirm the judgment

of sentence.

       Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/20




____________________________________________


5 To the extent Appellant attempts to raise various alternate theories in
support of this contention in his reply brief, the claim is still waived. See
Commonwealth v. Otero, 860 A.2d 1052, 1054 (Pa. Super. 2004) (“Issues
presented before this [C]ourt for the first time in a reply brief are waived”).
While we are not unsympathetic to Appellant’s contention the originally
assigned trial judge waited far too long, particularly in light of the delays in
arraigning Appellant, to transfer the case to a different jurist, we see no legal
basis to burden the Commonwealth with the responsibility to scrutinize the
assigned judge’s schedule, make a determination the schedule is too
overloaded, and file a request to transfer the case to another judge.

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