J-A21023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LARRY BARKSDALE

                            Appellant                 No. 2353 EDA 2014


              Appeal from the Judgment of Sentence July 15, 2014
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0005411-2012


BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                        FILED SEPTEMBER 04, 2015

        Appellant, Larry Barksdale, appeals from the July 15, 2014 judgment

of sentence of 90 days to six months’ incarceration, imposed after the trial

court found him guilty in a bench trial of driving under the influence of

alcohol (DUI), general impairment.1 After careful consideration, we affirm.

        We summarize the general procedural history of this case as follows.

In connection with events occurring on April 19, 2012, Officer Shaun Kozak

of the Plymouth Township Police Department charged Appellant with DUI by

criminal complaint filed May 23, 2012. Following a preliminary hearing, the

case was bound over to the Court of Common Pleas of Montgomery County

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3802(a)(1).
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on July 17, 2012.         Following numerous continuances, listings for pretrial

conferences, and other proceedings, Appellant, on April 28, 2014, filed a

motion to dismiss, alleging violation of his speedy trial rights under

Pennsylvania Rule of Criminal Procedure 600. The trial court held a hearing

on Appellant’s motion on June 19, 2014.                 That same day, the trial court

denied Appellant’s motion to dismiss. A bench trial was conducted on July

15, 2014, and the trial court found Appellant guilty of DUI and sentenced

him as aforesaid.

       On August 14, 2014, the trial court granted Appellant’s privately

retained counsel’s petition to withdraw.              That same day, Appellant filed a

timely pro se notice of appeal.         Although not ordered to do so, Appellant

filed a pro se concise statement of errors complained of on appeal pursuant

to Pennsylvania Rule of Appellate Procedure 1925(b) contemporaneously

with his notice of appeal. The trial court issued its Rule 1925(a) opinion on

September 15, 2014.

       Noting that counsel had been permitted to withdraw, and Appellant

was proceeding pro se absent any hearing, the Commonwealth petitioned

this Court on December 12, 2014, for remand to the trial court for a

Grazier2     hearing     or   appointment        of     counsel.    We   granted   the

____________________________________________
2
  Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (holding the trial
court must ascertain on the record that a defendant’s decision to proceed
pro se is knowing, intelligent, and voluntary).



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Commonwealth’s petition on January 26, 2015.            Thereafter, Appellant’s

former private counsel entered his appearance with this Court on February

24, 2015.

       On appeal, Appellant raises the following issues for our review.

              I.   Whether the trial court abused its discretion
              when it denied Appellant’s Petition for Dismissal of
              Charges Pursuant to Pa.R.Crim.P. 600 because it
              improperly calculated the period of time within which
              the Commonwealth had to bring Appellant to trial
              pursuant to Rule 600?[3]

              II.    Whether the trial court abused its discretion
              when it determined that the periods of time
              Appellant was not transported to court from a state
              correctional institute constituted excusable delay,
              and that the Commonwealth exercised reasonable
              efforts to bring [Appellant] to trial[?]

Appellant’s Brief at 4.

       In addressing these issues, we adhere to the following standard and

scope of review. “When reviewing a trial court’s decision in a Rule 600 case,

an appellate court will reverse only if the trial court abused its discretion.”

Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012).

____________________________________________
3
  The trial court reviewed Appellant’s motion to dismiss under the version of
Rule 600 in effect at the time of the filing of the motion. On July 1, 2013,
the former rule was rescinded and a new Rule 600 was adopted which
“clarified the provisions of the rule in view of the long line of cases that have
construed the rule.” Pa.R.Crim.P. 600, cmt. The new rule consolidates the
former distinction between excludable and excusable time in the calculation
of an adjusted run date. Id. at 600(C)(1). Appellant acknowledges that the
analysis under either version of the rule would be essentially the same.
Appellant’s Brief at 11. Our citations in the body of this memorandum are,
therefore, to the former Rule.


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                   Judicial discretion requires action in conformity
             with law, upon facts and circumstances judicially
             before the court, after [a] 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.

                                        …

                    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. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en

banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).

     The courts of this Commonwealth employ an initial three-step analysis

to determine whether Rule 600 requires dismissal of the charges against a

defendant.

                   The first step in determining whether a
             technical violation of Rule 600 […] has occurred is to
             calculate the “mechanical run date.” The mechanical
             run date is the date by which trial must commence
             under the relevant procedural rule.             [T]he

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            mechanical run date is ascertained by counting the
            number of days from the triggering event - e.g., the
            date on which … the criminal complaint was filed - to
            the date on which trial must commence under Rule
            [600]. Pa.R.Crim.P. [600(A)(3)].

Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal

citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second

step, we must “determine whether any excludable time exists pursuant to

Rule 600(C).”    Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa.

Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third

step, “[w]e add the amount of excludable time, if any, to the mechanical run

date to arrive at an adjusted run date.” Id. It is well settled that any delay

occasioned by a defendant is excludable time in the calculation of the

adjusted run date. Pa.R.Crim.P. 600(C)(2), (3); Preston, supra.

      Furthermore, delays not attributable to a defendant but where the

Commonwealth is found to have acted with due diligence in attempting to

commence a timely trial but was prevented by circumstances beyond its

control, is considered excusable time and likewise added to the mechanical

run date. Pa.R.Crim.P. 600(G); accord Commonwealth v. Wholaver, 989

A.2d 883, 899 (Pa. 2010), cert. denied, Wholaver v. Pennsylvania, 562

U.S. 933 (2010).   “‘Excusable delay’ is not expressly defined in Rule 600,

but the legal construct takes into account delays which occur as a result of

circumstances beyond the Commonwealth’s control and despite its due




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diligence.”   Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super.

2004), appeal denied, 875 A.2d 1073 (Pa. 2005).

              “Due-diligence is a fact-specific concept that is
              determined on a case-by-case basis. Due diligence
              does not require perfect vigilance and punctilious
              care, but rather a showing by the Commonwealth
              that a reasonable effort has been put forth.”
              Commonwealth v. Booze, 953 A.2d 1263, 1273
              (Pa. Super. 2008) (quotations and quotation marks
              omitted). “Judicial delay may justify postponing trial
              beyond the adjusted run date if the Commonwealth
              was prepared to commence trial prior to the
              expiration of the mandatory period but the court was
              unavailable because of ‘scheduling difficulties and
              the like.’”     Preston, [supra] at 14 (citation
              omitted).

Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012), appeal

denied, 63 A.3d 1245 (Pa. 2013). Any time prior to trial, a defendant may

move the trial court for dismissal of the charges if the Commonwealth has

violated the Rule. Pa.R.Crim.P. 600(G).

      At the June 19, 2014 Rule 600 hearing, the trial court made the

following findings as reiterated in its Rule 1925(a) opinion.

                    A.   May 23, 2012 to October 24, 2012: Both
              parties conceded that the first 154 days count
              against the Commonwealth. As a result, [the trial
              c]ourt determined this period of time goes against
              the Commonwealth.

                    B.    October 24, 2012 to January 15, 2013:
              This period of time is excludable due to concession
              by Appellant.     As a result, [the trial c]ourt
              determined this period of time goes against
              Appellant.




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                  C.    January 15, 2013 to April 17, 2013:
            Here, [the trial c]ourt determined this period of time
            counts against the Commonwealth.

                  D.     April 17, 2013 [to] July 8, 2013: A guilty
            plea hearing was scheduled to occur on April 17,
            2013.    However, on April 17, 2013, Appellant
            changed his mind about pleading guilty and
            requested this matter be placed back on the Pre-Trial
            Conference list. Appellant also signed a Rule 600
            waiver and conceded that this period is excludable.
            As a result, [the trial c]ourt determined this period of
            time goes against Appellant.

                   E.    July 8, 2013 [to] October 29, 2013: [The
            trial c]ourt determined this period counts against the
            Commonwealth, because there is nothing in the
            record to show otherwise.

                 F.    October 29, 2013 [to] December 12,
            2013: [The trial c]ourt determined this period of
            time counts against Appellant because his counsel
            requested a continuance on October 29, 2013.

                  G.   December 12, 2013 [to] February 11,
            2014: [The trial c]ourt determined this period of
            time goes against the Commonwealth.

                  H.     February 11, 2014 [to] June 1, 2014:
            [The trial c]ourt determined that this period of time
            is an excusable delay due to the police officer’s
            unavailability.

Trial Court Opinion, 9/15/14, at 7-8; see also N.T., 6/19/14, at 51-55.

      In his first issue, Appellant contends the trial court, based on its own

findings, miscalculated the adjusted run date under Rule 600.          Appellant’s

Brief at 11. Specifically, Appellant contends it was error for the trial court

to treat Appellant’s April 17, 2013 waiver as creating a new start date for

calculating Rule 600’s 365-day period, rather than merely extending the run

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date from April 17, 2013, to the next scheduled event, in this case to July 8,

2013.    Id. at 14; See Trial Court Opinion, 9/15/14 at 8; see also N.T.,

6/19/14, at 52.     The trial court reasons as follows. “Based on the above

time breakdown, Appellant signed a Rule 600 waiver on April 17, 2013. As

such, the Commonwealth had 365 days from the date Appellant signed the

Rule 600 waiver to bring him to trial. This Court computed that day number

304 started on February 11, 2014….” Trial Court Opinion, 9/15/14, at 8.

        Appellant contends “[t]he trial court’s arbitrary decision to begin the

365 day period within which [Appellant] should have been tried on April 17,

2013, ignores the previous 329 days that had elapsed since the complaint

was filed, 246 of which the trial court determined did not constitute

excludable or excusable delay” Appellant’s Brief at 14. The Commonwealth

concedes this was error. “The Commonwealth concedes that the trial court

improperly calculated the adjusted run date in its opinion because it used

the date of [Appellant’s] waiver as its start-date.” Commonwealth’s Brief at

5 n.2. We agree.

             In assessing a Rule 600 claim, the court must
             exclude from the time for commencement of trial
             any periods … for which he expressly waived his
             rights under Rule 600. …      If the defense does
             indicate approval or acceptance of the continuance,
             the time associated with the continuance is
             excludable under Rule 600 as a defense request.

Hunt, supra at 1241 (citations omitted, emphasis added).




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       The trial court’s miscalculation resulted in an improperly stated

adjusted run date.       Based on the specific findings of the trial court, the

mechanical run date under Rule 600 is 365 days from the date of the filing

of the criminal complaint on May 23, 2012, or May 23, 2013.          Trial Court

Opinion, 9/15/14, at 7.        The trial court found three periods of excludable

delay based on Defense-requested continuances and or Rule 600 waivers.

The first of these was the 83 days from October 24, 2012, to January 15,

2013, which brought the adjusted run date to August 14, 2013.          Id. The

second excludable period was the 82 days from April 17, 2013 to July 8,

2013, which brought the adjusted run date to November 4, 2013. Id. The

last of these was the 44 days from October 29, 2013 to December 12, 2013,

which brought the adjusted run date to December 18, 2013.              Id.   The

Commonwealth did not bring Appellant to trial by that date. Thus, the trial

court’s conclusion, based on its express findings that, “day number 304

started on February 11, 2014” is erroneous.4         Rather, based on a proper

calculation of the trial court’s expressly found excludable time, as of

February 11, 2014, Appellant’s trial was already 55 days past the adjusted
____________________________________________
4
   The trial court also determined there was one period of excusable delay,
i.e., the 111 days from February 11, 2014 to June 1, 2014 due to the
unavailability of Officer Kozak, who was on injury leave during that time.
Trial Court Opinion, 9/15/14, at 8. Appellant does not challenge this finding.
Additionally, Appellant raised no renewed challenge to the 44-day period
from June 1, 2014, to July 15, 2014, the date of trial, which we deem is also
excludable or excusable. Accordingly, we do not need to review the periods
after February 11, 2014 in the context of the Commonwealth’s Rule 600
compliance in this case.


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run date of December 18, 2013. This is calculated by adding the 209 days

of identified excludable time as of February 11, 2014 to the mechanical run

date of May 25, 2013.

      Based on the foregoing, we agree with the parties that the trial court

erred. See Hunt, supra. Accordingly, to prevail, it was incumbent upon

the Commonwealth to demonstrate additional excludable or excusable time

that would extend the adjustable run date beyond February 11, 2014. This

leads us to Appellant’s second issue.

      In his second issue, Appellant asserts that the trial court’s general

conclusion that the Commonwealth acted with due diligence in timely

commencing trial is unsupported by the evidence adduced at the Rule 600

motion hearing. Appellant’s Brief at 15-16. “There is nothing in the record

to support the trial court’s determination that the Commonwealth exercised

reasonable diligence in bringing [Appellant] to trial, and as such, its decision

was arbitrary and baseless and constituted an abuse of discretion.” Id. at

16.   Specifically, with reference to delays attributable to the failure to

transport Appellant to the courthouse on several occasions, Appellant

contends as follows.

            The Commonwealth was aware that [Appellant] was
            an inmate in a state correctional institution, and that
            on several occasions[] [Appellant] was not
            transported to court. [Appellant’s] previous counsel
            described the situation as “a chronic problem of him
            not being brought down from the state correctional
            institution.” Nevertheless, the Commonwealth failed
            to take any action to secure [Appellant’s] presence in

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               time for trial, such as requesting a writ be issued to
               transport [Appellant], or arranging housing in the
               Montgomery       County    Correctional   Facility, or
               coordinating a video conference with the institution
               where [Appellant] was incarcerated.

Id. at 18.

      The Commonwealth argues to the contrary that this Court may still

affirm the trial court’s ruling based on other, more general findings by the

trial court.    Commonwealth’s Brief at 5 n.2.      “[The trial court’s] error, in

itself, is not reversible because the record demonstrates that the trial court

reached the proper conclusion, even though it used an improper method.

See Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001)

([the Superior Court] Court may affirm on any grounds).” Id.

      In addition to the specific findings cited above, the trial court made the

following findings.

               [T]here is no evidence in the record of any conduct
               on the part of the Commonwealth calculated to
               evade Appellant’s speedy trial rights. The record
               demonstrates      the    Commonwealth     put     forth
               reasonable efforts to bring Appell[ant] to trial within
               the limits set by Rule 600.          The record also
               demonstrates that most of the circumstances
               occasioning the postponement, such as Appellant’s
               transportation to the Courthouse, were beyond the
               control of the Commonwealth. Based on the facts of
               this case, [the trial c]ourt concluded that the
               Commonwealth exercised due diligence in bringing
               Appellant to trial and the circumstances that caused
               the delay of the trial were excusable.

Trial Court Opinion, 9/15/14, at 9. Having already concluded, albeit based

on a faulty calculation, that the adjusted run date had not been reached, the

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trial court did not specifically identify and quantify these additional periods of

excusable delay or include them in its adjusted run date calculation.

Nevertheless, we conclude the trial court’s findings are supported by the

record and demonstrate additional excusable delay that supports the trial

court’s ultimate determination that no Rule 600 violation occurred.

       At the Rule 600 motion hearing, Appellant testified that there were

several times he was transported from the State Correctional Facility (SCI)

at Dallas to SCI Graterford without being further transported to the

Montgomery County Courthouse. N.T., 6/19/14, at 31. The record reveals

that the trial court issued at least 18 transport orders for Appellant’s case

prior to the Rule 600 motion hearing.5             The Commonwealth notes in

particular that “[o]n July 19, 2013, defendant was not transported to the

courthouse despite the trial court’s transportation order.      Accordingly, the

time from the transportation failure until his next appearance is …

excusable.”     Commonwealth’s Brief at 10-11, citing Commonwealth v.

Mines, 797 A.2d 963 (Pa. Super. 2002), appeal denied, 812 A.2d 1229 (Pa.

2002).


____________________________________________
5
  These include orders to transport Appellant from the SCI to the
Montgomery County Courthouse for appearances at hearings or conferences
scheduled for September 24, 2012, October 24, 2012, January 15, 2013,
March 15, 2013, July 8, 2013, July 9, 2013, July 19, 2013, October 18,
2013, October 21, 2013, November 7, 2013, December 12, 2013, December
10, 2013, February 6, 2014, February 10, 2014, February 11, 2014, March
18, 2014, and June 19, 2014, respectively.


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      In Mines, we held “it is not within the control of either the prosecutor

or the trial court to bring every defendant to the courtroom when desired.”

Mines, supra at 965.          Accordingly, the Mines Court held that delays

occasioned by the absence of an incarcerated defendant despite the

“issuance of a bringdown and writ for the defendant’s appearance are not

chargeable to the Commonwealth.”            Id.       Judge Klein, writing for the

Majority, further opined as follows.

              As one with twenty-eight years of experience as a
              trial judge in Philadelphia, I certainly sympathize
              with the problems of judges and prosecutors trying
              to obtain the presence of an incarcerated defendant
              for trial who is in the state prison system on another
              case. While it is difficult in an individual case to
              ascertain which of a number of agencies are at fault,
              the possibilities generally fall with the Clerk of
              Quarter Sessions, the Sheriff, and the state prison
              system. These are all independent agencies[]. None
              report to the prosecutor or the court.

Id. at 966.

      The     cases   cited   by   Appellant    for    the   proposition   that   the

Commonwealth is responsible for taking action to secure an incarcerated

defendant’s presence for court proceedings did not involve the factual

scenario here, where the trial court issued an order to transport Appellant.

See Appellant’s Brief at 17, citing, Commonwealth v. Colon, 87 A.3d 352

(Pa. Super. 2014), Commonwealth v. Haynes, 488 A.2d 602 (Pa. Super.

1985), Commonwealth v. Pichini, 454 A.2d 609 (Pa. Super. 1982), and

Commonwealth v. Martin, 371 A.2d 903 (Pa. Super. 1977). We conclude



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the trial court’s finding that the Commonwealth acted with due diligence in

this case is supported by the record, and the delay occasioned by the failure

to bring Appellant to the courthouse despite the trial court’s order

constitutes excusable time for purposes of calculating the adjusted run date

under Rule 600.

       In this instance, the excusable time from July 19, 2013 to the next

court date of October 18, 2013 is 91 days.        By adding the 209 days of

previously identified excludable time, and the 91 days we have determined

are excusable under Rule 600, to the mechanical run date of May 23, 2013,

the adjusted run date as of February 11, 2014, becomes March 19, 2014.

Because there is no dispute that all time after February 11, 2014 is either

excludable or excusable, the adjusted run date as of April 28, 2014, the date

of Appellant’s motion to dismiss, becomes June 3, 2014.        Accordingly, the

trial court did not err in concluding a Rule 600 violation did not occur.

       For all the foregoing reasons, we conclude the trial court did not abuse

its discretion by denying Appellant’s motion to dismiss for violation of Rule

600.    See Bradford, supra.       Accordingly, we affirm the July 15, 2014

judgment of sentence.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2015




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