J-S67018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :              IN THE SUPERIOR COURT OF
                              :                    PENNSYLVANIA
                   Appellant  :
                              :
         v.                   :
                              :
JEROME DERRELL CAREY          :                   No. 1544 EDA 2016


                     Appeal from the Order April 19, 2016
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006599-2014

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

MEMORANDUM BY MUSMANNO, J.:                      FILED JANUARY 11, 2018

      The Commonwealth of Pennsylvania appeals from the Order granting

the Motion to Dismiss criminal charges filed by Jerome Derrell Carey

(“Carey”), pursuant to Pa.R.Crim.P. 600 (hereinafter “Rule 600 Motion”).

We affirm.

      The trial court set forth the relevant history underlying this appeal as

follows:

            On May 1, 2014, … Carey[] was arrested and charged with
      Possession with the Intent to Deliver, Criminal Conspiracy,
      Possession of Firearm Prohibited, Intent to Possess Controlled
      Substance by Person Not Regulated[,] Use/Possession of Drug
      Paraphernalia, and Possession of an Instrument of a Crime. It is
      alleged that a confidential informant made multiple purchases of
      crack cocaine from [Carey,] at or near 1745 North 26th Street
      and 2522 West Montgomery Avenue[,] on or about April 30,
      2014. [Carey] was then arrested inside 2522 West Montgomery
      Avenue, which is a rooming house.

           The original preliminary hearing was scheduled for May 20,
      2014. The preliminary hearing was rescheduled for June 5,
      2014[,] where multiple charges were held for court. The Pre-
____________________________________
* Former Justice specially assigned to the Superior Court.
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       Trial Conference was scheduled for July 17, 2014[,] and a
       Scheduling Conference was scheduled for August 5, 2014. The
       case was listed for Pretrial Motions on September 23, 2014.
       Counsel for [Carey] timely filed an Omnibus Pre[t]rial Motion on
       August [14,] 2014. A jury trial was [scheduled] for February 17,
       2015[, by the Honorable Giovanni Campbell (“Judge Campbell”)
       on September 23, 2014]. A motions date of January 13, 2015
       was also scheduled.[1]

               On February 17, 2015, the matter was listed for trial
       before the Honorable Roxanne E. Covington [(“Judge
       Covington”)]. [However, trial did not commence on February
       17, 2015. Rather, t]he Commonwealth passed the outstanding
       discovery[, a seizure analysis,] at the bar of the court.[2] The
       trial was continued[3] to June 10, 2015[,] but the [c]ourt was on
       trial in another matter. Similarly, the [c]ourt was on trial for yet
       another matter at the next listing, [October] 14, 2015. The
       matter was continued to February 10, 2016. On December 4,
       2015, [Carey filed the Rule 600] Motion …. At the February 10,
       2016 trial date, the Commonwealth again passed necessary
       discovery at the bar of the court. Motions were continued to
       April 19, 2016[,] at which time the [trial court conducted a
____________________________________________


1 The trial court’s docket entry for January 13, 2015, states, in relevant part,
as follows: “Order Granting Motion for Continuance … Commonwealth
request – Commonwealth not ready for motions hearing (outstanding
discovery) ….”

2 The entry on the trial court’s docket for February 17, 2015, states that the
case was “[l]isted for jury trial. Seizure analysis passed today. Discovery is
complete. Bring down the defendant. NCD: 6/10/2015 room 908.” Further,
though it is undisputed that the seizure analysis was given to the defense on
February 17, 2015, the record does not reveal when it was passed “at the
bar of the court” that day. See Brief for the Commonwealth at 6 (stating
that “[a]t the Rule 600 hearing, all agreed that the outstanding discovery,
the seizure analysis, was passed to the defense in court on February 17,
2015.”); see also id. (asserting that the Commonwealth had passed the
seizure analysis only five days after it had first become available).

3 The docket entry for February 17, 2015 additionally states that the trial
court entered an “Order Granting Motion for Continuance” that day.
However, the docket does not identify the moving party.



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        hearing on the] Rule 600 [M]otion [(hereinafter the “Rule 600
        hearing”).]

Trial Court Opinion, 2/10/17, at 1-2 (footnotes added).

        At the close of the Rule 600 hearing, the trial court entered an Order

granting the Rule 600 Motion and dismissing all charges against Carey. Two

days later, the Commonwealth filed a Motion for Reconsideration. Therein, it

asserted that the trial court had erred in stating at the Rule 600 hearing

that, concerning February 17, 2015 (a Tuesday), i.e., the originally-

scheduled jury trial date, “we don’t have jury trials on Tuesday.”          N.T.,

4/19/16, at 26 (hereinafter referred to as the “Tuesday trial comment”).

The Commonwealth attached to the Motion for Reconsideration court records

proving that the trial court was, in fact, presiding over a trial in a separate

criminal case on February 17, 2015. By an Order entered on May 25, 2016,

the trial court denied the Motion for Reconsideration without a hearing. The

Commonwealth then filed a timely Notice of Appeal, followed by a Pa.R.A.P.

1925(b) Concise Statement of errors complained of on appeal.4

        The Commonwealth now presents the following issue for our review:

        Whether the lower court erred in discharging [Carey] under
        Pa.R.Crim.P. 600 by attributing to the Commonwealth a
        continuance on February 17, 2015, where the resulting 113 days
        of delay were not caused by the Commonwealth; the judge was
        conducting a jury trial in another case (Commonwealth v. Kasim
        Harrington, CP-51-CR-0014644-2013) that made it impossible

____________________________________________


4   The trial court did not order the filing of a Rule 1925(b) concise statement.



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        for trial in this case to commence on that date[;] and Rule 600
        was not violated[?]

Brief for the Commonwealth at 3.5

        Our standard and scope of review concerning challenges to a ruling on

a Rule 600 motion is as follows:

        We review a trial court’s [grant or] denial of a Rule 600 motion
        for an abuse of discretion. 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[,] discretion is abused. Our scope of review is
        limited to the record evidence from the speedy trial hearing and
        the findings of the lower court, reviewed in the light most
        favorable to the prevailing party.

        Rule 600 establishes a careful matrix protecting a defendant’s
        rights to be free from prolonged pretrial incarceration and to a
        speedy trial, while maintaining the Commonwealth’s ability to
        seek confinement of dangerous individuals and those posing a
        risk of flight, and to bring its cases in an orderly fashion. []

Commonwealth v. Burno, 154 A.3d 764, 793 (Pa. 2017) (some citations,

quotation marks and ellipses omitted).

              Additionally, when considering the trial court’s ruling, this
        Court is not permitted to ignore the dual purpose behind Rule
        600. Rule 600 serves two equally important functions: (1) the
        protection of the accused’s speedy trial rights, and (2) the
        protection of society. In determining whether an accused’s right
        to a speedy trial has been violated, consideration must be given
        to society’s right to effective prosecution of criminal cases, both
        to restrain those guilty of crime and to deter those
        contemplating it. However, the administrative mandate of Rule
        600 was not designed to insulate the criminally accused from

____________________________________________


5   We note that Carey did not file an appellate brief.



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        good faith prosecution          delayed   through     no   fault   of   the
        Commonwealth.

Commonwealth v. Horne, 89 A.3d 277, 283 (Pa. Super. 2014) (brackets

omitted).

        Rule 600, as amended July 1, 2013, provides, in relevant part, that

“[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).        The Rule further provides

that for purposes of computing when trial must commence, “periods of delay

at any stage of the proceedings caused by the Commonwealth when the

Commonwealth has failed to exercise due diligence shall be included …. Any

other    periods   of   delay   shall    be   excluded      from   the     computation.”

Pa.R.Crim.P. 600(C)(1); see also Commonwealth v. Roles, 116 A.3d 122,

125 (Pa. Super. 2015) (stating that “[t]he Commonwealth has the burden of

establishing by a preponderance of the evidence that it exercised due

diligence throughout the prosecution.”). However, “periods of judicial delay

are excludible from calculations under the [R]ule ….”              Commonwealth v.

Mills, 162 A.3d 323, 325 (Pa. 2017). Failure to meet the Rule’s prompt-trial

requirement    constitutes      grounds     for   dismissal   of   the     charges    with

prejudice. Pa.R.Crim.P. 600(D)(1).

        The Commonwealth argues that the trial court improperly dismissed

the charges against Carey under Rule 600, where the court erroneously

counted against the Commonwealth delay that was actually attributable to

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the court.     See Brief for the Commonwealth at 10-19.          Specifically, the

Commonwealth asserts as follows:

       The [trial] court attributed a 113-day delay[, i.e., from February
       17, 2015, to June 10, 2015,] to the Commonwealth because [the
       court] believed it could not have been on trial [on] February 17,
       2015.[6] However, the [trial] court was on trial [in a different
       criminal case] on that date, and the docket clearly set February
       17, 2015 as a trial date for the instant matter. Therefore, the
       continuance [entered on] February 17, 2015 was not caused by
       the Commonwealth and was erroneously included in the
       computation of the run date.

Id. at 10 (footnote added);7 see also id. at 5 (stating that “[w]hat

happened on [February 17, 2015] is the sole issue on appeal.”).               The

Commonwealth asserts that “[p]roperly excluding the 113-day delay from

February 17[, 2015] would result in there having been only 336 includable

days at the next trial date of June 29, 2016, and thereby enough time to try

[Carey] under Rule 600.”         Id. at 8.     According to the Commonwealth, on

February 17, 2015,

       [it] was prepared to go to trial, but a continuance was caused by
       the trial court being in the middle of trial in another case. A
       continuance due to the trial court being on trial is excluded from
____________________________________________


6The Commonwealth refers to the Tuesday trial comment made at the Rule
600 hearing. See Brief for the Commonwealth at 7.

7 The Commonwealth additionally points out that the trial court’s docket
entry for February 17, 2015 does not reflect which party requested the
continuance, in violation of Pa.R.Crim.P. 600(C)(3)(a)(ii) (providing that
“when a judge … grants or denies a continuance[,]” the judge “shall record
the identity of the party requesting the continuance and the reasons for
granting or denying the continuance.”). See Brief for the Commonwealth at
12.



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       the computation of the run period. Pa.R.Crim.P. 600(C)(1).
       Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006)
       (holding that delay caused by the trial “court … presiding over
       another criminal case” so it “could not begin Appellant’s trial on
       that date” is excusable[)]; Commonwealth v. Brown, 875
       A.2d 1128, 1138 ([Pa. Super.] 2005) (where “the trial court had
       yet another trial in progress, and rescheduled Appellee’s trial” it
       was a circumstance over which “the Commonwealth had no
       control” and so the delay “is excusable”).

Brief for the Commonwealth at 15. Finally, the Commonwealth asserts that

“[e]ven if the Commonwealth had requested the February 17 continuance -

it did not - the delay still should be excluded. ‘Joint’ continuances result in

excludable time. Commonwealth v. Stilley, 689 A.2d 242, 249-250 (Pa.

Super. 1997).” Brief for the Commonwealth at 17.

       Here, the trial court discussed the timeline of events for Rule 600

purposes as follows:

       [O]n May 2, 2014, the Commonwealth filed a [C]omplaint
       against [Carey;] thus the natural run date was May 2, 2015.
       The mechanical run date[,] which includes excludable
       Commonwealth time[,] was January 21, 2016. The original
       preliminary hearing was scheduled for May 20, 2014.          The
       Commonwealth [was] ready in the room but refused to sever
       [Carey’s] and other codefendants’ cases.        The [trial c]ourt
       determined that the nineteen (19) days between the [C]omplaint
       and preliminary hearing were excusable.[8]       The preliminary
       hearing was rescheduled for June 5, 2014[,] where multiple
       charges against [Carey] were held for court. This period of
       sixteen (16) days was ruled excusable due to a defense
       conflict[,] despite the Commonwealth also needing additional
       time. The next listing, a Pre-Trial Conference, was scheduled for
____________________________________________


8 The new Rule 600 consolidates the distinction under former Rule 600
between excludable and excusable time in the calculation of an adjusted run
date. See Pa.R.Crim.P. 600(C)(1).



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     July 17, 2014. The matter was scheduled for a Scheduling
     Conference on August 5, 2014. The sixty one (61) days were
     ruled excusable due to the [trial c]ourt’s schedule. On August 5,
     2014, … [Judge] Campbell ordered a Hall Discovery Motion to be
     filed regarding the outstanding discovery. Discovery determined
     to be outstanding included the Ballistician report, Gun Trace, FBI
     extracts for witnesses, 7548, arrest memo, 75-895, Buy Money
     and DC reports with Confidential Informants’ information. The
     case was listed for Pretrial Motions on September 23, 2014.
     Counsel for [Carey] timely filed an Omnibus Pre-Trial Motion on
     August 14, 2014. Judge Campbell held the September 23, 2014
     Pre-Trial Conference as scheduled. The Commonwealth was
     ordered to pass FBI extracts for persons named on discovery
     documents but all other discovery was marked as complete and
     the Hall Discovery Motion was withdrawn. A jury trial date of
     February 17, 2015[,] was scheduled[,] well before the
     mechanical run date expired. A motions date of January 13,
     2015[,] was also scheduled. At the January 13, 2015 listing, the
     Commonwealth disclosed [that it was] not ready for motions due
     to outstanding discovery. Judge Campbell ordered motions and
     trial to occur at the original trial date of February 17, 2015. The
     Commonwealth concedes that the time from August 5, 2014[,]
     through February 17, 2015[,] (196 days) is ruled excludable.

           On February 17, 2015, the matter was listed for trial
     before … [Judge] Covington. The Commonwealth passed the
     outstanding discovery from January 13, 2015[,] at the bar of the
     court. Judge Covington determined that trial could not occur
     as Defense Counsel had no time to review the newly
     obtained discovery. [On February 17, 2015, t]he trial was
     continued to June 10, 2015[,] and the time was attributed to the
     Commonwealth for lack of due diligence. The [trial c]ourt was
     unable to hear this matter on June 10, 2015[,] as it was on trial
     in another case. Both parties were ready[,] so this delay was
     attributed to the [c]ourt. Similarly, the [c]ourt was on trial for
     another matter at the next scheduled listing, October 14, 2015.
     The case was continued to February 10, 2016, beyond the
     mechanical run date of January 21, 2016[,] and the time was
     attributed to the [c]ourt.

           On December 4, 2015, a [Rule 600] Motion … was filed by
     [Carey] ….      At the February 10, 2016 trial date, the
     Commonwealth again passed mandatory discovery[, certain
     prison recordings and a witness police statement,] at the bar of

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       the court. Judge Covington once more determined that trial
       could not occur[,] as Defense Counsel had no time to review the
       newly obtained discovery. Motions were set for March 14, 2016.
       On March 14, 2016, the Commonwealth requested a
       continuance[,] as [the] Commonwealth attorney was not
       available. Motions were postponed to April 19, 2016[,] at which
       time the Rule 600 [M]otion was heard by [the trial c]ourt [at the
       Rule 600 hearing]. … For the reasons detailed above, [the trial
       c]ourt entered an [O]rder granting [the Rule 600] [M]otion.

Trial Court Opinion, 2/10/17, at 5-7 (some emphasis and footnote added;

other emphasis in original; citations and paragraph break omitted).9

       Initially, we cannot agree with the Commonwealth that the trial court’s

Tuesday trial comment, made at the Rule 600 hearing, evidences reversible

error on behalf of the trial court. Despite the trial court’s passing comment,

the salient facts are the court’s findings that (1) at some unidentified time

on February 17, 2015, the Commonwealth passed outstanding necessary

discovery in court, which the defense fairly needed time to review; and (2)

due to the Commonwealth’s lack of due diligence in this regard, the trial

continuance that the court entered that day would be counted against the

Commonwealth.        See id. at 6; N.T., 4/19/16, at 50-51 (wherein the trial

court stated that “discovery was not passed or complete until the day of

trial[, i.e., February 17, 2015]. This [c]ourt finds that time to reflect a lack

of diligence on the part of the Commonwealth, and that time is charged to
____________________________________________


9 We note that the only substantive rationale that the trial court advances in
support of its ruling is the following sentence: “This court exercised sound
discretion, in view of all procedural facts and circumstances of the case, by
granting the [Rule] 600[] [M]otion.” Trial Court Opinion, 2/10/17, at 7.



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the Commonwealth.”); see also Commonwealth v. Taylor, 598 A.2d

1000, 1002-03 (Pa. Super. 1991) (holding that that the Commonwealth’s

failure to provide mandatory discovery, when the Commonwealth does not

contest the request, does not toll the speedy trial clock).       We may not

disturb the trial court’s factual findings in this regard. Nor can we assume,

as the Commonwealth urges, that the sole reason that the trial had to be

continued on February 17, 2015, was because the trial court was presiding

over a separate trial that day.            The Commonwealth is correct that an

administrative error or a scheduling conflict attributable to the trial court

would not be counted against the Commonwealth for the purposes of a due

diligence analysis.     However, the trial court expressly found that trial was

unable to proceed on February 17, 2015, due to the Commonwealth’s last-

minute provision of necessary discovery to the defense.10       See Trial Court

Opinion, 2/10/17, at 6; N.T., 4/19/16, at 50-51; see also Mills, 162 A.3d at

325 (Wecht, J. concurring) (stating that “‘[j]udicial delay’ is not a

mechanism or totem that exempts the Commonwealth from its obligations

under [] Rule [600]. It may be invoked only after the Commonwealth has

demonstrated that it is ready, able, and willing to proceed with the case
____________________________________________


10 Moreover, the cases that the Commonwealth relies upon, see Frye and
Brown, supra, are unavailing and distinguishable as, in those cases, the
sole reason that trial could not commence on a certain scheduled trial date
was due to the trial court presiding over trial in another matter. Here, the
Commonwealth turned over last-minute discovery in court on the same day
of the scheduled trial.



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against the defendant. Otherwise, the due diligence component of Rule 600

would have little, if any, meaningful import.” (emphasis added)).

     Accordingly, based on the record before us, we discern no abuse of the

trial court’s discretion in ruling that the Commonwealth failed to meet its

burden that it had exercised due diligence in bringing Carey to trial within

the time requirement of Rule 600.             See Burno, supra; see also

Commonwealth v. Browne, 584 A.2d 902, 905 (Pa. 1990) (stating that

“prosecutors must do everything reasonable within their power to see that

the case is tried on time.”); Commonwealth v. Johnson, 852 A.2d 315,

318 (Pa. Super. 2004) (vacating judgment of sentence and discharging

Johnson   because   “there   was a    dearth of    evidence   to   support   the

Commonwealth’s arguments, and it therefore did not carry its burden to

establish due diligence in bringing Johnson to trial within the required

time.”). Accordingly, we affirm the trial court’s Order granting the Rule 600

Motion and dismissing the charges against Carey.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/18



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