J-A09033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                       Appellant                    :
                                                    :
                                                    :
                v.                                  :
                                                    :
                                                    :
    ASAD BUTT                                       :   No. 3019 EDA 2017


                     Appeal from the Order August 16, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0000883-2016


BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                                  FILED MAY 03, 2019

       The Commonwealth appeals an order entered in the Court of Common

Pleas of Philadelphia County, granting Asad Butt’s motion to dismiss, which

was filed pursuant to Pennsylvania Rule of Criminal Procedure 600. We vacate

the order of dismissal and remand for further proceedings.1

                                               I.

       Butt and his co-defendant were charged with several felony offenses on

November 13, 2015, stemming from the armed robbery of a massage parlor.

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*    Retired Senior Judge assigned to the Superior Court.

1 We resolve this case consistently and in conjunction with the appeal in case
number 2977 EDA 2017, where the Commonwealth seeks review of the order
dismissing the charges against Butt’s co-defendant, Naseem Iqnaibi. The
material facts and issues presented in both appeals are identical.
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A potential trial witness, Jim Barnes (Barnes), had been present just outside

of the establishment at the time of the robbery. It was Barnes who called the

police. When they arrived, Barnes described a man who he saw leaving the

parlor, but that person was soon apprehended and ruled out as a suspect.

      Barnes did not give a written statement to police on the date of the

offenses and he did not return the calls of the detective assigned to the case.

The Commonwealth disclosed Barnes’ name and contact information to the

defense in a timely manner.      It appears that the Commonwealth did not

consider Barnes to be a material trial witness and did not intend to call him to

the stand.

      Nevertheless, in July 2016, the defense requested a statement by

Barnes from the Commonwealth. The defense did so because Barnes did not

respond to its investigator’s calls. See Hearing Transcript, 8/16/2017, at 85.

For unknown reasons, the Commonwealth acceded to the request and soon

later, a prosecutor spoke with Barnes over the phone to arrange for him to

give a statement to a detective on the case.         See Hearing Transcript,

8/16/2017, at 89-90.

      The detective did not reach Barnes until February 12, 2017, about eight

months after the defense’s request, and the record is unclear as to the cause




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of that delay.2      The written statement was immediately disclosed to the

defense, but by that time, only three days remained before the trial of

February 15, 2017. Further, the document was not legible so the defense did

not receive a readable copy of Barnes’s statement until the day of that trial.

       The defense requested a continuance so that it could prepare to address

that statement and conduct a photo lineup with Barnes.           The trial court

granted the motion but attributed the delay to the Commonwealth.             The

Commonwealth objected that it had not caused the delay but the trial court

overruled the objection, finding that its late disclosure of discovery required a

continuance. Importantly, the trial court stated, “I’m not saying there was a

lack of diligence.”       Hearing Transcript, 2/15/17, at 14.      Further, the

corresponding entry in the case docket made no mention of a ruling on due

diligence: “Commonwealth request mandatory discovery (witness statement)

passed the day of trial.” Docket No. CP-51-CR-0000882-2016, 2/15/17, at

12.

       Days prior to the next trial setting on August 16, 2017, Butt and his co-

defendant each filed motions to dismiss under Rule 600. They contended that

the Commonwealth’s time to try the case had expired. The trial court held a

hearing on the motions on the scheduled date of trial. That same day, the



____________________________________________


2Much of the discussion regarding the circumstances of the delay took place
off-record in the trial court’s chambers.


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presiding trial judge recused and the case was reassigned to a successor

judge.

       At the hearing on the motions to dismiss, all parties agreed that if the

continuance     ordered     on   February      15,     2017,     was   attributed    to   the

Commonwealth for the purposes of Rule 600, then dismissal of the charges

would be proper.3 The parties also agreed that the opposite was true, since

excluding that period of delay would leave enough time for the Commonwealth

to try the case.

       The successor judge granted dismissal in reliance on the original judge’s

rulings concerning the subject continuance.                   The Commonwealth filed a

motion for reconsideration, arguing that dismissal could not be granted under

Rule 600 because no finding had been made as to whether it failed to exercise

due diligence at the trial setting of February 15, 2017. In its opinion, the

successor judge noted the absence of a specific ruling on due diligence by the

original   judge,    but   found    the   prior      ruling    attributing   delay   to   the

Commonwealth to be binding:

       Although the notes of testimony reflected that [the original judge]
       failed to rule that the Commonwealth did not do its due diligence,
       the notes mirrored the docket, verifying that that [the original


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3 About half a year elapsed between February 15, 2017, and the following trial
setting on August 16, 2017.        The defense admitted to causing some
intervening periods of delay after the case began, but it was undisputed that
the Commonwealth’s total period of delays would exceed the speedy trial
period only if the time between the two above dates were assessed against it.


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      judge] explicitly stated on the record that the continuance request
      that precipitated the delay was attributed to the Commonwealth.

Trial Court Order, 11/13/17, at 5.

      The Commonwealth timely appealed the trial court’s order of dismissal,

again arguing that no finding was ever made as to whether it exercised due

diligence during the pertinent time period. See Appellant’s Brief, at 4. The

Commonwealth argues in the alternative that it exercised due diligence as a

matter of law even if it is determined that the trial court decided that issue to

the contrary. Id. at 4.

                                      II.

      The record is clear that the original trial judge declined to rule on the

central question of this appeal – whether the continuance ordered on February

15, 2017, resulted from the Commonwealth’s failure to exercise due diligence.

The original trial judge expressly stated, “I’m not saying there was a lack

of diligence.” Hearing Transcript, 2/15/17, at 14 (emphasis added). The

successor trial judge who began presiding at the hearing on Butt’s motion to

dismiss applied the “coordinate jurisdiction rule,” which requires a successor

judge to enforce a prior judge’s ruling on a legal matter in the same case.

See Trial Court Order, 11/13/17, at 4-5; Zane v. Friends Hosp., 836 A.2d

25, 29 (Pa. 2003). However, a successor judge can only enforce a prior ruling

which has actually been made by the prior judge.        As to the issue of due

diligence at the hearing on February 15, 2017, there was no decision to bind

the successor judge, so the coordinate jurisdiction rule did not apply.

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       Rule 600 requires reversal of the subject dismissal order because a

necessary finding on due diligence was never made.4                 Generally, the Rule

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). The Rule mandates that a “[t]rial 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(A)(2)(a). A defendant may move to dismiss the charges with prejudice

once the speedy trial period has elapsed. See Pa.R.Crim.P. 600(D).

       There are two distinct elements at play in computing the 365-day period

of Rule 600. First, in order for a delay in the proceedings to be included in

the computation of time, the delay must be “caused by the Commonwealth.”

Pa.R.Crim.P.     600(C)(1).     Second,        a   delay   which   is   caused   by   the

Commonwealth must have occurred due to the Commonwealth’s failure “to

exercise due diligence.” Id. Where the Commonwealth has exercised due

diligence and a trial date must still be reset, the period of delay must be

excluded from the computation. See Commonwealth v. Goldman, 70 A.3d

874, 879 (Pa. Super. 2013) (“Excusable delay is delay that occurs as a result


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4 The issue here is whether a period of delay can be computed under Rule 600
without a specific finding that the delay resulted from the Commonwealth’s
failure to exercise due diligence. This question of law is reviewed under a de
novo standard. See Buffalo Township v. Jones, 813 A.2d 659, 664 n.4
(Pa. 2002) (“Our standard of review for a question of law is de novo.”).


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

diligence.”).

       Here, the absence of a ruling on due diligence regarding the subject

continuance precluded the dismissal of Butt’s charges.     In its opinion, the

successor trial judge acknowledged that the original judge “failed to rule” on

due diligence as to the disputed delay. Trial Court Opinion, 11/13/17, at 5.

The successor judge also declined to make that specific ruling.        Yet by

attributing the subject delay to the Commonwealth for speedy trial purposes,

the successor judge erroneously conflated the two computation elements of

Rule 600. See Pa.R.Crim.P. 101(C) (every rule of criminal procedure shall be

“construed in consonance with the rules of statutory construction”); see also

Commonwealth v. Parsons, 166 A.3d 1242, 1246 (Pa. Super. 2017)

(criminal rules and statutes must be given effect according to their plain

language). Due to this legal error, the order of dismissal cannot stand.5




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5  Butt claims that the Commonwealth failed to preserve its objection to
dismissal since it did not do so in writing. He cites Pennsylvania Rule of
Criminal Procedure 600(D)(3), which provides that “[a]ny requests for review
of the determination in paragraph (C)(3) shall be raised in a motion or answer
filed pursuant to paragraph (D)(1) or paragraph (D)(2).” However, this
section of the rule is only directed at defendants, as it sets forth “remedies”
for violations of the right to a prompt trial. The section imposes no
requirements on the Commonwealth when opposing a defendant’s motion for
relief under the Rule. Thus, Butt’s waiver argument has no merit.




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       Further, the conflicting evidence in this case clearly presents an

unresolved question for the trial court as to whether the Commonwealth

exercised due diligence regarding Barnes’ statement.6       On the one hand,

Barnes’ statement did not exist in writing until the Commonwealth produced

it on February 12, 2017, and the defense received a version of it almost

immediately after. There is no suggestion that Barnes’ statement was either

exculpatory or incriminating. The Commonwealth claimed it obtained Barnes’

statement as soon as it could and that it had no intention of using the

statement at trial or calling the witness to the stand. If true, the above facts

would tend to show that the Commonwealth was diligent since Barnes’

statement could have only been subject to mandatory disclosure if it was

incriminating or in the form of a document. See Pa.R.Crim.P. 573(B)(1).

       But on the other hand, the trial court could have rejected all or part of

the Commonwealth’s explanation for why the defense did not receive Barnes’


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6 Due diligence “is a fact-specific concept that must be determined on a case-
by-case basis.” Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.
Super. 2007). “[I]t is for the fact finder to make credibility determinations,
and the finder of fact may believe all, part, or none of a witness’s testimony.”
Commonwealth v. Mack, 850 A.2d 690, 693 (Pa. Super. 2004). “An
appellate court ‘does not in the first instance make findings of fact and
conclusions of law.’” Commonwealth v. Grundza, 819 A.2d 66, 68 (Pa.
Super. 2003) (quoting Commonwealth v. Jackson, 346 A.2d 746, 748 (Pa.
1975)). Unless there exists a ruling on a particular matter, this Court cannot
carry out “the appellate function of determining ‘whether the record supports
the trial court’s factual findings and whether the legal conclusions therefrom
are free from error.’” Grundza, 819 A.2d at 68 (quoting Commonwealth v.
Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)).


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witness statement until just before the trial setting on February 15, 2017. The

defense requested disclosure of Barnes’ statement in July 2016 and the

Commonwealth for some reason agreed to obtain it. A prosecutor spoke with

Barnes soon after the defense’s request to schedule a meeting between him

and a detective, but the meeting did not happen for another eight months.

The defense finally got a legible copy of the statement on the day of the trial

setting. The record is unclear as to the cause of the delay. The trial court

could have found that the Commonwealth did not diligently abide by its

discovery obligations, and if so, the resulting delay may be attributed to the

Commonwealth for the purposes of Rule 600.

      In sum, no ruling has been made as to whether the Commonwealth’s

failure to exercise due diligence caused the trial to be reset on February 15,

2017. The procedural history and case facts do not definitively favor either

party on this point. The order of dismissal is vacated and the case remanded

to the trial court so that the specific finding on due diligence may be made. A

new evidentiary hearing may be held if deemed necessary by the trial court.

      Order vacated. Case remanded for the trial court to make additional

findings consistent with this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/19




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