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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

JEROME ROBERT SMITH

                        Appellee                  No. 96 WDA 2015


              Appeal from the Order entered December 8, 2014
               In the Court of Common Pleas of Potter County
              Criminal Division at No: CP-53-MD-0000100-2011


COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

JARRETT RAND SMITH

                        Appellee                  No. 97 WDA 2015


              Appeal from the Order entered December 8, 2014
               In the Court of Common Pleas of Potter County
              Criminal Division at No: CP-53-MD-0000100-2011


COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

EILEEN RIFKA SMITH

                        Appellant                 No. 98 WDA 2015
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               Appeal from the Order entered December 8, 2014
                In the Court of Common Pleas of Potter County
               Criminal Division at No: CP-53-MD-0000100-2011


COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

KRISTA EVELAND

                            Appellee                 No. 99 WDA 2015


               Appeal from the Order entered December 8, 2014
                In the Court of Common Pleas of Potter County
               Criminal Division at No: CP-53-MD-0000100-2011


BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                          FILED MARCH 23, 2016

       The Commonwealth appeals from the orders entered by the Court of

Common Pleas of Potter County dismissing the charges against Jerome

Robert Smith, Jarrett Rand Smith, Eileen Rifka Smith, and Krista Eveland,

(collectively, the “Appellees”) pursuant to Pennsylvania Rule of Criminal

Procedure 600. For the reasons stated below, we reverse and remand.

       The underlying factual and procedural background can be summarized

as follows.1 On June 18, 2009, Trooper Michael Murray of the Pennsylvania

____________________________________________


1
 Unless otherwise stated, the factual background is taken from the affidavits
of probable cause.



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State Police (PSP) met with then-Potter County President Judge John Leete,

in a meeting also attended by then-Potter County District Attorney Dawn

Fink and Coudersport Borough Police Sergeant James Collins.            At the

meeting, Judge Leete informed the attendees he was told that two local

attorneys, Jarrett Smith and Donna Albright, attempted to purchase a baby

from Ms. Paula Larson. The transaction, however, did not go through. He

also relayed that he heard that Jarrett Smith had recently facilitated the sale

of Krista Eveland’s newborn baby, that the baby was in the process of being

adopted, and that the adoption proceedings were pending before the Potter

County Court of Common Pleas, Case No. 3-2009. Based on the information

provided by Judge Leete, Trooper Murray initiated an investigation into the

matter.

      On July 10, 2009, the date set for the finalization of the adoption of

Eveland’s baby, Trooper Murray interviewed Donna Albright and Krista

Eveland.   Trooper Murray learned that Krista Eveland entered into an

agreement with Jarrett Smith and Donna Albright to exchange Eveland’s

newborn infant for cash and other consideration and to transfer the baby to

Jerome Smith (Jarrett Smith’s brother) and Eileen Rifka Smith. The transfer

of the baby was supposed to be presented to the Potter County trial court as

a legitimate adoption.

      On the same day, Trooper Murray informed Judge Leete that the

report he received of an illegal transaction involving Krista Eveland’s child

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appeared founded.         At the hearing, Judge Leete informed the parties that

the hearing was to be continued in light of allegations of financial

improprieties, and disclosed to the parties his role in reporting the alleged

improprieties.

       After conducting additional investigation, criminal charges were filed

against Appellees on May 20, 2011.2 Preliminary hearings were scheduled to

occur in Potter County before Magisterial District Judge (MDJ) Easton on May

27, 2011 for Jarrett Smith, and on June 1, 2011 for Krista Eveland.

However, on the eve of the hearings, MDJ Easton recused herself from

hearing    the   cases.      MDJ     Easton    notified   the    Potter   County   Court

Administrator Jenny Saulter she had to recuse herself because Appellee

Jarrett Smith was a well-known attorney practicing in Potter County.

Eventually, the other two Potter County magisterial district judges also

declined to hear the cases against Appellees.

       Ms. Saulter contacted Tioga County and Lycoming County in an effort

to find an MDJ willing to hear the cases.            No judge accepted the cases.

Finally, Ms. Saulter contacted the Administrative Office of Pennsylvania

Courts to have an MDJ assigned to hear the cases. AOPC contacted, among

others, MDJ Beck, who accepted the assignment.                  On July 6, 2011, Potter

____________________________________________


2
  While all individuals involved in the transaction were charged with various
crimes, Donna Albright is not a party to this appeal.



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County President Judge Minor issued an order formally appointing MDJ Beck

as the presiding MDJ and setting September 22, 2011 as the date for the

preliminary hearings. The September 22, 2011 date was chosen based on

Judge Beck’s availability.

       On September 22, 2011, at the preliminary hearing, counsel for

Eveland orally moved to preclude the Commonwealth from using evidence in

the criminal case information from the adoption case.    Promptly, all other

present defendants also joined the motion.       Given the novelty of the

objection raised by Appellees,3 the Commonwealth asked for a continuance

to address the motions and acknowledged that the continuance had to be

charged to the Commonwealth for purposes of Rule 600.4 Despite Appellees’
____________________________________________


3
  Two issues, apparently never addressed before by an appellate court, were
raised at the preliminary hearing: (i) whether the Adoption Act’s restriction
on disclosure of “adoption information” without court approval applies in
prosecutions of fraudulent adoptions, and (ii) in the event court approval is
required, the quantum of evidence necessary for court approval of disclosure
of information. The trial court eventually agreed with the Commonwealth’s
characterization of the issues as novel.       In its order, the trial court
acknowledged that the issues raised in Appellees’ motions and the
Commonwealth’s response thereto were of “compelling” nature. See Trial
Court Order, 11/21/11.
4
  In its prior opinion, the trial court stated that entire period of delay in
bringing Appellees to trial was chargeable to the Commonwealth because the
Commonwealth so acknowledged at the September 22, 2011 hearing. Trial
Court Opinion, 7/19/2013, at 3 (citing N.T. Preliminary Hearing, 9/22/11, at
27). In the trial court’s view, at the hearing, the Commonwealth agreed to
have all time elapsed for the disposition of the parties’ motions charged
against the Commonwealth. The record does not support the trial court’s
(Footnote Continued Next Page)


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objections, MDJ Beck granted the Commonwealth’s request. The preliminary

hearing was continued to November 21, 2011, the earliest available date to

the presiding judge.

      On October 20, 2011, the Commonwealth filed a motion seeking

approval for the disclosure of information relating to the adoption of


                       _______________________
(Footnote Continued)

conclusions.    Indeed, a fair reading of the notes of testimony of the
preliminary hearing reveals the Commonwealth agreed to be charged for the
continuance (approximately 2 months) so it could respond to Appellees’ oral
motions. Id. at 23. The Commonwealth responded to Appellees’ oral
motions by filing its own motion on October 20, 2011.

In its latest opinion, the trial court cites the notes of testimony of the Rule
600 September 12, 2014 hearing as supporting its finding the
Commonwealth agreed to be charged for all of the delay in bringing
Appellees to trial. Trial Court Opinion, 12/8/14, at 2 (citing N.T. Rule 600
Hearing, 9/12/14, at 24-27). There is no evidence of such acknowledgment.
The pages of testimony relied upon by the trial court merely contain the
parties’ oral argument to the court. Thus, the record and/or the pages cited
by the trial court in no way support the trial court’s conclusions, unless we
equate, as the trial court did, Appellees’ oral argument to the court with
substantive evidence.

In the same vein, Appellees also argue that the Commonwealth “express[ly]
agree[d]” that “all” delay accrued after September 22, 2011 would run
against the Commonwealth. Appellee Eveland’s Brief at 17-18 (emphasis in
original). There is no evidence of such agreement, let alone one “express.”
Appellee Jarrett Smith points to a statement proffered by the
Commonwealth that would support the “express agreement” argument.
Appellee Jarrett Smith’s Brief at 8 (citing N.T. Preliminary Hearing, 9/22/11,
at 11-18 (“we’ve all agreed on that this time it is on the Commonwealth”)).
The statement, read in isolation, is misleading. As noted, a fair reading of
the entire record shows the Commonwealth agreed to be charged only for
the two-month (September 22, 2011-November 21, 2011) continuance.



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Eveland’s child.   On October 25, 2011, Eveland filed an answer to the

Commonwealth’s       motion   and   four   additional   countermotions   seeking

additional relief beyond the preclusion of the adoption information.

      On October 27, 2011, Potter County President Judge Minor recused

himself from the instant matters, appointing Northumberland County

President Judge Sacavage to specially preside as to all matters, including the

preliminary hearing.    In the order appointing Judge Sacavage there is no

mention of MDJ Beck or explanation why a preliminary hearing was to be

held before a common pleas court judge. On the same day, Jerome Smith

and Eileen Smith filed a response to the Commonwealth’s motion and four

additional countermotions for additional relief (namely, petitions for writ of

habeas corpus, appointment of guardian ad litem, sealing of the record, and

prosecutorial misconduct).

      On November 16, 2011, Jarrett Smith filed a response to the

Commonwealth’s motion and five countermotions seeking additional relief

(namely, petitions for writ of habeas corpus, appointment of guardian ad

litem, sealing of the record, prosecutorial misconduct, and a motion to

dismiss). On November 17, 2011, four days prior to the preliminary hearing

scheduled for November 21, 2011, Judge Sacavage conducted a telephone

status conference.     On November 21, 2011, Judge Sacavage entered the

following order:




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       AND NOW, this 17th day of November, 2011, preliminary
       hearing(s) in the above captioned matters, previously scheduled
       for the 21st day of November, 2011 are hereby CONTINUED
       pending resolution of Commonwealth’s Motion for Order Granting
       Authority    to   Disclose  and    Counter-Motions    filed  by
                   [FN]
       Defendants. . The preliminary hearing shall be rescheduled at
       such time as this [c]ourt authorizes the Magisterial District
       Ju[dge] conducting the hearing to proceed with same.

       The [c]ourt also DIRECTS the parties to submit any remaining
       answers to the motions, briefs in support or opposition of the
       outstanding    motions,    or  counter-motions   related    to
       Commonwealth’s Motion for Order Granting Authority to Disclose
       within ten (10) business days.

       ____________
       FN The pending motions involve compelling legal issues that
       must be resolved prior to any further proceedings.

Trial Court Order, 11/21/11.

       Pursuant to said order, Appellees timely filed their briefs in support of

their positions. Similarly, the Commonwealth filed a brief arguing that the

Adoption Act’s restrictions are inapplicable in the instant case, requesting, in

the alternative, that the Commonwealth be granted its motion to disclose

information, and requesting that Appellees’ motions be denied.5

       On February 17, 2012, Judge Sacavage scheduled a hearing for April

2, 2012 to address all outstanding motions. On April 2, 2012, the trial court

____________________________________________


5
  Appellees’ briefs were filed on November 28, 2011 (Eveland), and
December 1, 2011 (Jerome and Eileen Smith), respectively.          The
Commonwealth filed its brief on December 7, 2011, after requesting and
obtaining a short extension of time to file its brief.



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heard argument on the various outstanding motions, but neither heard

testimony nor took any other evidence.      At the close of the argument,

defense counsel raised a Rule 600 issue. Judge Sacavage took the matter

under advisement.    On May 25, 2012, while the matters were still under

advisement, Appellee Eveland filed a Rule 600 motion, followed by Jerome

Smith and Eileen Rifka Smith’s Rule 600 motion (filed June 6, 2012), and

Jarrett Rand Smith’s Rule 600 motion (filed June 11, 2012).             The

Commonwealth responded to said motions on June 12, 2012, rejecting

Appellees’ Rule 600 arguments.

     On March 5, 2013, without holding a hearing, the trial court entered

orders dismissing the criminal charges in their entirety against Appellees.

The Commonweal timely appealed on April 4, 2013. The trial court issued

its Pa.R.A.P. 1925(a) opinion on July 19, 2013.

     On appeal, the Commonwealth argued that: (i) the trial court abused

its discretion in dismissing the charges pursuant to Rule 600 without an

evidentiary hearing, and (ii) in the alternative, the trial court abused its

discretion in granting Appellees’ Rule 600 motions because the trial court’s

ruling was based on an inaccurate recitation of the facts and misapplication

of pertinent law. On June 30, 2014, a panel of this Court agreed with the




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Commonwealth and vacated and remanded the case to the trial court for an

evidentiary hearing on the first issue. We did not address the second issue. 6

       On remand, the trial court conducted a hearing on Appellees’ Rule 600

claims. At the hearing, the Commonwealth presented the testimony of Ms.

Jennifer Saulter, the Potter County Court Administrator.        Additionally, with

the agreement of the parties, 32 exhibits were admitted into evidence. See

N.T. Rule 600 Hearing, 9/12/14, at 4-9.

       On December 8, 2014, Judge Sacavage filed an order dismissing with

prejudice all charges against all Appellees.         On the same day, Judge

Sacavage filed an opinion in support of said order. This appeal followed.

       On appeal, the Commonwealth raises the following issues:

       I.     Whether the trial court’s grant of Rule 600 relief
              constitutes a reversible abuse of discretion given that its
              decision is grounded in a recitation of the facts . . . grossly
              inaccurate, incomplete, deceptive, and contradicted by the
              record[.]

       II.    Whether the trial court’s grant of Rule 600 relief
              constitutes a reversible abuse of discretion given that the
              trial court flagrantly misapplied the law governing Rule 600
              claims by, among other things: (A) applying the wrong
              version of Rule 600; (B) failing to apply binding precedent
              on multiple points of law; and (C) inventing new rules of
              law that do not exist and have never heretofore been
              recognized in the Commonwealth[.]

____________________________________________


6
  See Commonwealth v. Eveland, et al., Nos. 591-594 WDA 2013,
unpublished memorandum at 3 n.2 (Pa. Super. filed June 30, 2014).



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      III.   Whether the trial court’s grant of Rule 600 relief
             constitutes a reversible abuse of discretion given that the
             trial court’s misapplication of the governing law to its
             inaccurate perception and statement of the relevant facts
             resulted in a manifestly unreasonable judgement[.]

      IV.    Whether the trial court’s entry of an Order definitively
             staying all proceedings 60 days after the preliminary
             hearings were continued and literally prohibiting the
             conduct of preliminary hearings until after the [c]ourt ruled
             on specific outstanding motions, coupled with an abject
             refusal to rule on those motions and a subsequent grant of
             Rule 600 relief based on the outrageous finding that the
             Commonwealth had failed to bring the cases to trial
             constitutes a manifestly unreasonable judgment that
             requires reversal and reinstatement of charges[.]

Commonwealth’s Brief at 5.

      At issue here is the trial court’s order granting Appellees’ motions

pursuant to Rule 600. The Commonwealth argues that the trial court abused

its discretion in doing so. We agree.

      We review challenges to Rule 600 rulings pursuant to the following

standard and scope of review:

      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

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     the [trial] court. An appellate court must view the facts in the
     light most favorable to the prevailing party.

Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en

banc).

     Preliminary, we first must address which version of Rule 600 (pre or

post-2012 amendment) controls this matter.      The trial court, noting a

footnote contained in our previous Memorandum, relied on the pre-2012

version of Rule 600.   The Commonwealth argues the trial court erred in

doing so. Specifically, relying on Commonwealth v. Thompson, 93 A.3d

478 (Pa. Super 2014), Commonwealth v. Horne, 89 A.3d 277 (Pa. Super.

2014), and Commonwealth v Armstrong, 74 A.3d 228 (Pa. Super. 2013),

the Commonwealth argues that the new Rule 600 should be applied in cases,

like the instant one, where the Rule 600 hearing and the trial court’s

evaluation/determination of the issue occurred after July 1, 2013, the

effective date of the new Rule 600.

     Even if we were to agree with the Commonwealth, our analysis does

not change. At issue is whether there is any excludable/excusable time for

purposes of Rule 600. The standard used for making such a determination is

the same under the current as well as the former version of Rule 600.

Notably, Armstrong, Thompson, and Horne—the three cases cited by the




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Commonwealth7—all relied on Ramos, a pre-2012 amendment case, for the

proper recitation of the standard for purposes of Rule 600 time computation.

Indeed, the new version of Rule 600 is a codification of changes developed

in case law. The Comment states as follows:

       In 2012, former Rule 600 was rescinded and new Rule 600
       adopted to reorganize and clarify the provisions of the rule in
       view of the long line of cases that have construed the rule. The
       new rule incorporates from former Rule 600 the provisions
       concerning the commencement of trial and the requirement of
       bringing a defendant to trial within 365 days of specified events,
       new paragraph (A), and the 120-day or 180-day time limits on
       pretrial incarceration, new paragraph (B). New paragraph (C),
       concerning computation of time and continuances, and new
       paragraph (D), concerning remedies, have been modified to
       clarify the procedures and reflect changes in law.

Rule 600, Comment.

       Thus, given that the method of computation of time is identical under

either version, it is irrelevant which one the trial court used.8   In making

such determination, we employ the following standard:

____________________________________________


7
  The Commonwealth also cites Commonwealth v. Colon, 87 A.3d 352
(Pa. Super. 2014) for the proposition that, under the circumstances of the
case, the new version of Rule 600 should be applied. Commonwealth’s Brief
at 39. We note that Colon applied the older version of Rule 600. Therefore,
reliance on Colon is misplaced.
8
  Appellee Eveland similarly argues the analysis under both versions is
identical. See Appellee Eveland’s Brief at 14-17. Appellees Eileen Smith
and Jerome Smith do not take any position on this matter, relying instead on
Appellee Eveland’s position on this matter. Appellee Jarrett Smith, in his
brief, quoted the newer version of Rule 600, but relied on cases applying the
(Footnote Continued Next Page)


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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.

      If the trial takes place after the adjusted run date, we apply the
      due diligence analysis set forth in Rule 600([C]). As we have
      explained, 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[C] 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.

Armstrong, 74 A.3d at 236 (citing Ramos, supra, at 1103) (footnote and

citations omitted).9

                       _______________________
(Footnote Continued)

prior version of Rule 600 in support of his argument. See Appellee Jarrett
Smith’s Brief at 11-15 (citing, among others, Ramos and Colon).
9
 In the context of Rule 600, there is a distinction between “excludable time”
and “excusable delay”:

      Excludable time includes delay caused by the defendant or his
      lawyer. Concomitantly, excusable delay occurs where the delay
      is caused by circumstances beyond the Commonwealth’s control
      and despite its due diligence. Due diligence is a fact-specific
      concept that must be 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.

(Footnote Continued Next Page)


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      Here, there is no dispute that the mechanical run date, i.e., the 365th

day after the filing of the criminal complaint, is May 21, 2012.             Appellees

claimed, and the trial court agreed, that the Commonwealth violated Rule

600 in not trying Appellees by said date. We disagree.

      A defendant . . . is not automatically entitled to discharge under
      Rule 600 where trial starts more than 365 days after the filing of
      the complaint.     Rather, Rule 600 provides for dismissal of
      charges only in cases in which the defendant has not been
      brought to trial within the term of the adjusted run date, after
      subtracting all excludable and excusable time. The adjusted run
      date is calculated by adding to the mechanical run date, i.e., the
      date 365 days from the complaint, both excludable and
      excusable delay.

Roles, 116 A.3d at 125 (internal quotation marks and citations omitted).

      At issue here is whether there is any excludable/excusable time for

purposes of Rule 600. The trial court seemed to focus its attention on two

specific instances of delay, namely, the delay resulting from the appointment

of an MDJ, and the delay resulting from Appellees’ motions. With regard to

the   first   instance,     the    trial   court    summarily   concluded    that   the

Commonwealth           presented      no     evidence    to     address     what    was

excludable/excusable.10 In response to the Commonwealth’s argument that

                       _______________________
(Footnote Continued)

Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super. 2015).
10
   The Commonwealth argues the trial court erred in finding the evidence
presented at the Rule 600 hearing sufficient to prove the delay in the
appointment of the MDJ was attributable to the Commonwealth. A challenge
(Footnote Continued Next Page)


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trial delays were attributable to Appellees’ motions, the trial court summarily

noted that the mere filing of pretrial motions does not automatically result in

excludable time (relying on Commonwealth v. Hill, 736 A.2d 578 (Pa.

1999)). As such, the trial court granted Appellees’ motions to dismiss.       A

review of the record and relevant caselaw does not support the trial court’s

conclusory statements and legal conclusions.

      In the trial court’s view, the testimony by the court administrator was

not sufficient to show that the delay in selecting a willing MDJ to hear the

cases was excusable. We disagree. The trial court neglects to mention that

the court administrator specifically stated that the delay in scheduling a

preliminary hearing was due to difficulties in finding a judge who had no

conflicts.   N.T. Rule 600 Hearing, 9/12/14, at 13-15.11             The court

                       _______________________
(Footnote Continued)

to the sufficiency of the evidence is question of law, and we are not bound
by the trial court’s conclusions of law. Additionally, here, it is worth noting
that the trial court did not question the credibility of Ms. Saulter, but merely
the sufficiency of her testimony to show the Commonwealth’s entitlement to
an exclusion. Finally, it should be noted that the quantum of proof required
under the circumstances is a preponderance of the evidence. In other
words, “[a] Rule 600 motion requires a showing of due diligence by a
preponderance of the evidence for the Commonwealth to avail itself of an
exclusion.” Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)
(citation omitted).
11
   Judge Sacavage acknowledged that he had been appointed to preside over
these matters “due to conflicts.” N.T. Hearing, 4/2/12, at 6. Apparently,
however, he did not consider the thorny history leading to his appointment
relevant to his Rule 600 analysis.



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administrator also testified that once a judge was found, the additional delay

was due to the judge’s availability and courtroom availability.            Id. at 15.

Given these facts, we conclude that the delay in the selection of a willing

MDJ was outside the Commonwealth’s control.                  Additionally, there is no

evidence of the Commonwealth’s lack of due diligence in pursuing this

matter, nor did the trial court point to any of such instances, aside from a

bald, uncorroborated statement to that effect.               Accordingly, the period

elapsed (118 days) from the date set for the original preliminary hearing

(May 27, 2011) to the date the hearing was continued to (September 22,

2011) is excusable for purposes of Rule 600. See Ramos, 936 A.2d at 1103

(Excusable delay is delay that occurs as a result of circumstances beyond

the    Commonwealth’s          control     and     despite     its   due   diligence);

Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006) (periods of

delay which are attributable to court congestion constitute excusable delay).

       Next, the trial court charged the Commonwealth for the period elapsed

from November 21, 2011 to March 5, 201312 (470 days), during which the



____________________________________________


12
   As noted above, the September 22, 2011 preliminary hearing was
continued to November 21, 2011 on the Commonwealth’s request. This
period is therefore chargeable to the Commonwealth. On November 21,
2011, the trial court halted all proceedings until disposition of outstanding
motions, which occurred on March 5, 2013.



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trial court took the matter under advisement to deliberate on the multiple

outstanding motions. We disagree.

       As noted above, the trial court cited Hill for the proposition that a

defendant “is not automatically rendered unavailable for trial by the mere

filing of a pretrial motion.” Trial Court Opinion, 12/8/14, at 4 (citing Hill).

The trial court misreads Hill.   It is well-established that delays caused by

pretrial motions constitute excludable time where the pretrial motion renders

the defendant unavailable. Hill, 736 A.2d at 587. It is also well-established

that   a   defendant   is   unavailable      for   trial   if   a   delay   in   the

commencement of trial is caused by the filing of the pretrial motion.

Id. at 587-88 (emphasis added). Finally, it is well-established that if a delay

is created, in order to establish that the delay is excludable, the

Commonwealth must demonstrate, by a preponderance of the evidence, that

it exercised due diligence in opposing or responding to the pretrial motion.

Id.

       Here, the best evidence that Appellees’ motions delayed the start of

the trial can be found in the order issued by the very same court that found

no evidence of excludable/excludable time in connection with Appellees’

motions. The order, again, in its entirety, reads as follows:

       AND NOW, this 17th day of November, 2011, preliminary
       hearing(s) in the above captioned matters, previously scheduled
       for the 21st day of November, 2011 are hereby CONTINUED
       pending resolution of Commonwealth’s Motion for Order

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       Granting Authority to Disclose and Counter-Motions filed
       by Defendants.[FN].   The preliminary hearing shall be
       rescheduled at such time as this [c]ourt authorizes the
       Magisterial District Ju[dge] conducting the hearing to
       proceed with same.

       The [c]ourt also DIRECTS the parties to submit any remaining
       answers to the motions, briefs in support or opposition of the
       outstanding    motions,    or  counter-motions   related    to
       Commonwealth’s Motion for Order Granting Authority to Disclose
       within ten (10) business days.

       ____________
       FN The pending motions involve compelling legal issues that
       must be resolved prior to any further proceedings.

Trial Court Order, 11/21/11 (emphasis added).

       According to the trial court’s own words, therefore, the disposition of

the “compelling legal issues” raised in the “pending motions” 13 was a

condition precedent to the preliminary hearings and, by implication, trials.14

____________________________________________


13
   At the time the November 21, 2011 order was issued, Appellees had not
raised or filed their Rule 600 motions. The pending motions addressed in
said order, therefore, included Appellees’ oral motions to preclude the
Commonwealth from using as evidence in the criminal case information from
the adoption case, Appellees’ multiple countermotions, and the
Commonwealth’s response (motion) to Appellees’ motions.
14
   It is worth noting that the order did not continue the disposition of the
motions until trial. Rather, it continued the preliminary hearings pending
disposition of the motions. This fact alone shows that the motions delayed
the commencement of the trials. In Hill, the Supreme Court noted:

       We are aware that there is a common practice among trial courts
       to defer the consideration of a pretrial motion until the
       commencement of trial. We wish to emphasize that, based on
(Footnote Continued Next Page)


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Accordingly, the trial court halted the preliminary hearing proceedings, and

ordered them not to be resumed unless otherwise authorized by the trial

court. In the meantime, the trial court entertained the “pending motions” at

a hearing on April 2, 2012, and disposed of them on March 5, 2013. Thus,

the delay in the start of the trial is attributable to the filing and litigation of

Appellees’ motions.15 Additionally, we note the trial court did not make any

finding, nor could we find any evidence, of the Commonwealth’s lack of

diligence in opposing or responding to Appellees’ pretrial motions. Indeed,

the record shows that the issues raised in the motions were of a

“compelling” nature. Trial Court Order, 11/21/2011.



                       _______________________
(Footnote Continued)

      our holding, once a court defers the consideration of a pretrial
      motion until trial, the time during which the pretrial motion is
      pending is not excludable from the Rule [600] calculation. A
      defendant is not unavailable for trial within the meaning of Rule
      [600] when a court continues the consideration of a defendant’s
      pretrial motion until trial, since it cannot be said that such
      motion is causing a delay in the commencement of trial.

Hill, 736 A.2d. at 587 n.7.
15
   In Hill, our Supreme Court that “in considering Hill’s pretrial motions, the
trial court conducted numerous hearings and other proceedings between
May 2, 1994 and July 17, 1995. Thus, due to Hill’s filing of pretrial motions,
the commencement of his trial was delayed.” Hill, 736 A.2d at 588.
Similarly, here, the trial court conducted a hearing on the motions.
Accordingly, we also conclude that the filing and litigation of Appellees’
motions resulted in a delay in the commencement of their trials.



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       While    the   trial   court   was      considering   Appellees’   motions   and

countermotions, and the Commonwealth’s response thereto, Appellees

raised a Rule 600 issue. As noted above, the Rule 600 issues were raised

orally at the argument set forth to address the “pending motions” mentioned

in the November 21, 2011 order. See N.T. Hearing, 4/2/12, at 35-40; see

also Appellee Jerome Smith’s Brief at 14 (at the April 2, 2012 hearing

“[d]efense counsel raised the issue of speedy trial and Rule 600”).

Inexplicably, the trial court charged the Commonwealth also for the period

elapsed from the raising of the Rule 600 issues to their disposition. The trial

court erred in doing so. The trial court ignored that the period elapsed to

decide Appellees’ Rule 600 motions is excludable time.                      See, e.g.,

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

Commonwealth v. Hyland, 875 A.2d 1175, 1191 (Pa. Super. 2005);

Commonwealth v. Williams, 726 A.2d 389, 392 (Pa. Super. 1999) (“The

period of time between a defendant’s motion to dismiss pursuant to Rule

[600] and the trial court’s rendering a decision on the motion is excludable

time under Rule [600].”).16           Thus, the delay resulting from Appellees’

motions to dismiss under Rule 600 is also excludable.17

____________________________________________


16
   For purposes of the speedy trial rule, the relevant excludable period
attributable to defendant’s omnibus pretrial motion started when the
defendant asked for a hearing date on the Rule 600 motion he intended to
(Footnote Continued Next Page)


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      The trial court next found the Commonwealth failed to show due

diligence in pursing this matter by failing to keep “some sort of record-

keeping system that would track cases for purposes of Rule 600.”         Trial

Court Opinion, 12/8/2014, at 6 (citing Commonwealth v Browne, 584

A.2d 902 (Pa. 1990) (plurality).18 Based on its interpretation of Browne, the

trial court held that the Commonwealth’s failure to maintain such a system

amounted to lack of due diligence in the instant matter.19

      The trial court misreads Browne. A careful reading of Browne does

not support the trial court’s use of that case. In Browne,


                       _______________________
(Footnote Continued)

file, and not on the subsequent date when defendant actually filed his
pretrial motion. Hyland, 875 A.2d at 1191; Booze, 953 A.2d at 1277 (“our
ruling [in Hyland] expanded the excludable time to include the period from
when the defendant first advised the court that he intended to file the [Rule
600] motion to its eventual disposition”) (emphasis in original).
17
    As noted above, Appellees’ Rule 600 issues were raised while the
disposition of the prior motions was still pending, and were decided by the
trial court concurrently with the prior motions and countermotions. Thus,
the duration of time elapsed from the time Appellees raised Rule 600 issues
to the time of their disposition partially overlaps with the filing and
disposition of Appellees’ prior motions and countermotions.
18
  As noted, Browne is a plurality opinion. A plurality decision is not binding
authority. See, e.g., Commonwealth v. Thompson, 985 A.2d 928, 937
(Pa. 2009).
19
    The trial court fails to mention that keeping track of cases not yet
disposed of is also a duty of the trial court. See Hill, 736 A.2d at 587 n.7
(citing Pennsylvania Rule of Judicial Administration No. 703).



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      the defendant was issued a Notice of Arraignment by the district
      justice at the conclusion of the preliminary hearing. Under the
      system of arraignments and criminal trials in the relevant
      county, the trial date that corresponded to the defendant’s
      arraignment date resulted in a situation where the trial would
      not commence until well beyond the mechanical run date under
      Rule 1100. Relevant to our ultimate decision, under the
      local county rules applicable in Browne, the district attorney
      was responsible for conducting the arraignments. Id. at 904.
      When the potential Rule 1100 violation became apparent, the
      Commonwealth sought an extension of the run date, which was
      denied by the trial court, resulting in the eventual grant of the
      defendant’s Rule 1100 motion. The Superior Court reversed and
      reinstated the charges, finding that the Commonwealth
      exercised due diligence and that the delay was due to the district
      justice’s scheduling of the arraignment.

      We reversed, concluding that the Commonwealth failed to
      exercise due diligence. We stated that to act with due diligence,
      “prosecutors must do everything reasonable within their power
      to see that the case is tried on time.” Id. at 905 (internal
      citation omitted). We determined that the district attorney’s
      actions were not reasonable in Browne: “Particularly in light
      of the Lancaster County District Attorney’s heavy
      responsibility under Local Rule 303 (with respect to
      conducting arraignments) ..., it is not unreasonable or erroneous
      to expect the District Attorney’s Office to track arraignment
      dates on a routine basis.” Id. at 905–06.

Bradford, 46 A.3d at 703-704.

      This is not the case here. There is no evidence the Commonwealth in

the instant case shared the same responsibility in the judicial administration

process as the Commonwealth had in Browne.             As such, Browne is

distinguishable. In addition, the case is distinguishable because the delay in

the instant matters is not due to the Commonwealth’s failure to keep a

tracking system. As noted above, the delay here is attributable to numerous

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judge recusals, Appellees’ motions, and the trial court’s failure to address all

outstanding motions in a prompt manner. See Bradford, 46 A.3d at 704

(“[W]e specifically distinguished Browne, where the delay was attributed to

the district attorney’s office lack of record keeping, from [Commonwealth v

Monosky, 511 A.2d 1346 (Pa. 1986)] where the delay was attributable to

the district justice.”).

       Finally, the trial court noted that the Commonwealth’s lack of due

diligence also is shown by the fact it did not list the cases for trial “or at the

very least [take] other reasonable steps (perhaps in this case inquiring

about a rescheduling of the preliminary hearing, for example).” Trial Court

Opinion, 12/8/2014, at 7. It is unclear how the Commonwealth could have

listed the cases for trial when a plethora of motions—whose disposition was

made a condition precedent by the trial court to both preliminary hearings

and trials—were still outstanding, or how it could have circumvented a

specific order of the same court continuing the preliminary hearing pending

disposition of said motions, or how the rescheduling of the preliminary

hearing to an earlier date20 could have made a difference given that it took

____________________________________________


20
  The date for the hearing was set by the trial court apparently without the
parties’ input. See Trial Court Order, 2/17/12. Said order was issued
approximately two months after the entry of the November 21, 2011 order
continuing the matter pending resolution of the motions. The trial court
provided no reasons why it took two months to set a hearing date.
(Footnote Continued Next Page)


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337 days—from the date of the April 2, 2012 hearing until the date of the

March 5, 2013 decision—for the trial court to render a decision on the

outstanding motions.          In other words, short of filing periodic friendly

reminders with the trial court inquiring about the status of the outstanding

motions, there is no indication that the Commonwealth lacked due diligence

in pursuing this matter. Indeed, the record shows that the Commonwealth

attended and was prepared for each hearing, timely filed its briefs, and

reasonably opposed Appellees’ motions.              Upon review of the record, we

conclude, therefore, the Commonwealth met the due diligence standard in

this matter.

        In conclusion, the trial court erred in granting Appellees’ motions to

dismiss pursuant to Rule 600. As noted, the mechanical run date was May

21, 2012.      The amount of excludable/excusable time is equal to 588 days

(118+470).      The adjusted date, as of March 5, 2013 when the trial court

entered the order dismissing the charges, was Monday, December 30,

2013.21 Thus, as of March 5, 2013, the Commonwealth had still 301 days to

                       _______________________
(Footnote Continued)

Additionally, we have reason to believe that the April 2, 2012 date was the
first available date to the trial court. Thus, how a request for rescheduling
the hearing to an earlier date would have made a difference in the overall
delay remains unexplained.
21
     The adjusted date fell on Saturday, December 28, 2013.




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try Appellees without violating Rule 600.22 Accordingly, the trial court erred

in concluding that a violation of Rule 600 had occurred as of March 5,

2013.23

       For the above stated reasons, we conclude that the trial court abused

its discretion in granting Appellees’ motions to dismiss.    Accordingly, we

reverse the orders of the trial court and remand for disposition of

outstanding motions.

       Orders reversed. Cases remanded. Jurisdiction relinquished.

       Judge Ott joins the memorandum.

       Judge Shogan concurs in the result.




____________________________________________


22
   Even if we were to agree with the trial court that the delay resulting from
the appointment of an MDJ (118 days) and the parties’ original motions and
countermotions (470 days) were attributable to the Commonwealth, the trial
court failed to exclude from the computation the delay resulting from the
Rule 600 motions. Rule 600 issues were raised on April 2, 2012 and were
disposed of on March 5, 2013.         As noted, this period (337 days) is
excludable.      See Booze, supra; Hyland, supra; Williams, supra.
Because the trial court failed to recognize the excludable nature of that
period, it erroneously granted Appellees’ Rule 600 motions. This ground
alone is sufficient to reverse and remand to the trial court.
23
   After the trial court granted Appellees’ Rule 600 motions, the
Commonwealth appealed to this Court. While not expressly raised here, it
should be noted that delays resulting from appellate reviews of pretrial
motions are also excusable.      See Selenski, 994 A.2d at 1090;
Commonwealth v. Boczkowski, 846 A.2d 75, 83 n.7 (Pa. 2004).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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