J-A28032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                         Appellee

                    v.

NYEM FLOWERS,

                         Appellant                      No. 188 EDA 2015


         Appeal from the Judgment of Sentence December 18, 2014
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012140-2013


BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED FEBRUARY 12, 2016

       Appellant Nyem Flowers appeals from the judgment of sentence

imposed after the trial court denied his Pa.R.Crim.P. 600 motion to dismiss

and convicted him of retail theft. After careful review, we reverse the trial

court’s order, vacate the judgment of sentence, and discharge Appellant.

       The underlying facts of this case are not in dispute as Appellant

entered into a stipulated trial.     If called to testify, Lymaris Rodriguez, the

manager of a Rite-Aid store in Philadelphia, would state that she observed

Appellant take video games from a stand in the store and place them in his

bag.   When Ms. Rodriguez confronted Appellant, he returned some of the
J-A28032-15


games.     N.T. 12/18/14, at 7.        Officer Lai,1 an off-duty Philadelphia police

officer,   would    recount    that   he   confronted   Appellant    and   asked   for

identification. Id. at 7–8. Appellant left his wallet with the officer and ran

from the store with some games still in his bag.            Id.     The incident was

captured on video, and Appellant admitted that he took the games and put

them in his bag. Id. at 8.

        The trial court summarized the procedural history, as follows:

              The criminal act in question occurred on April 23, 2013.
        The criminal complaint was filed on May 10, 2013. Appellant
        was arrested on September 9, 2013 and his preliminary
        arraignment was held on September 10, 2013. A preliminary
        hearing was then scheduled on September 26, 2013. Appellant
        was held for court at his preliminary hearing, and formal
        arraignment was scheduled for October 17, 2013. After his
        arraignment, court staff scheduled a pre-trial conference for
        November 6, 2013. At the November 6 pre-trial conference, a
        discovery request was put on the record and the case was
        scheduled for a trial on December 30, 2013. Additionally, a writ
        was prepared to secure Appellant’s presence from custody in
        Delaware County. On December 20, [2013,] the case was
        administratively re-listed for trial on February 11, 2014.

              On February 11, [2014,] the Commonwealth was not
        ready, as an officer failed to appear, and the Commonwealth
        made its first request for a continuance. Additionally, Appellant
        was not brought down from Delaware County. The case was
        continued to April 7, 2014.          On April 7, [2014,] the
        Commonwealth was not ready, as a loss-prevention officer from
        the victim store failed to appear.      Appellant’s location had
        changed from Delaware County custody to Montgomery County
        custody in the interim. Appellant was not brought to court from
        Montgomery County custody.         The case was continued to

____________________________________________


1
    Officer Lai’s first name is not identified in the record.



                                           -2-
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      May 22, 2014, and a writ was prepared to secure Appellant’s
      presence from Montgomery County.

             On May 22, [2014,] it was determined that Appellant had
      been moved to state custody at SCI Camp Hill in the interim and
      was therefore not brought down. Both parties were otherwise
      ready for trial. The case was scheduled for July 14, 2014, the
      next possible date consistent with this court’s calendar, and a
      writ was prepared. On July 14, [2014,] the Commonwealth was
      not ready, as a defective copy of the relevant surveillance video
      had been passed in discovery, and the Commonwealth sought a
      continuance to correct the issue. The case was then scheduled
      for October 6, 2014, the earliest possible date consistent with
      this court’s calendar, and a writ was prepared.

            On October 6, [2014,] the Commonwealth was not ready,
      as the loss-prevention officer from the victim store failed to
      appear. The case was then scheduled for December 18, 2014,
      and a writ was prepared for Appellant to be brought down from
      state custody. On December 18, 2014 this court heard and
      denied Appellant’s motion to dismiss under Rule 600. The case
      then proceeded by way of an open stipulated trial and Appellant
      was found guilty of retail theft. This court sentenced Appellant
      to a term of one to two years of incarceration, concurrent to any
      other prison sentence he was then serving, followed by four
      years non-reporting probation.

Trial Court Opinion, 3/10/15, at 2–3.

      Appellant raises a single issue for our consideration on appeal:

      Did not the lower court err in denying [Appellant’s] motion to
      dismiss pursuant to Pa.R.Crim.P. 600, because, including the
      time attributable to the conventional progression of a criminal
      case and the time attributable to the Commonwealth due to its
      non-diligent delay, and excluding the time not counted due to
      delay beyond the Commonwealth’s control, more than 365 days
      had elapsed before [Appellant] was brought to trial?

Appellant’s Brief at 3.

      In evaluating a Rule 600 issue,

            [O]ur standard of review of a trial court’s decision is
            whether the trial court abused its discretion.


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          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 the [trial] court. An
          appellate court must view the facts in the light most
          favorable to the prevailing party. 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
          good faith prosecution delayed through no fault of
          the Commonwealth.

                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.




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Commonwealth v. Horne, 89 A.3d 277, 283–284 (Pa. Super. 2014)

(quoting Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super.

2007) (en banc)).

       In pertinent part, the version of Rule 6002 that was in effect when the

criminal complaint was filed against Appellant provided as follows:

              Rule 600. Prompt Trial

              (A)

                                          * * *

              (3) Trial in a court case in which a written complaint is
              filed against the defendant, when the defendant is at
              liberty on bail, shall commence no later than 365 days
              from the date on which the complaint is filed.

                                          * * *

              (C) In determining the period for commencement of trial
              there shall be excluded therefrom:

              (1) the period of time between the filing of the written
              complaint and the defendant’s arrest, provided that the
____________________________________________


2
    A new version of Pa.R.Crim.P. 600 was adopted on October 1, 2012, and
took legal effect on July 1, 2013. See Pa.R.Crim.P. 600 comment. Both the
trial court and the parties refer to this version of the Rule in their respective
analyses of the speedy trial issue. Our jurisprudence, however, instructs
that we should review Appellant’s claim under the previous version of Rule
600 that was in effect at the time that the instant criminal complaint was
filed. See Commonwealth v. Roles, 116 A.3d 122, 124 n.4 (Pa. Super.
2015) (citing Commonwealth v. Brock, 61 A.3d 1015, 1016 n.2 (Pa.
2013) (noting that former Rule 600 applies because the criminal complaint
was filed prior to the effective date of the new version of the rule)).
Because the differences in the versions of the two Rules do not implicate the
discrete issue before us, the time excluded from the 365-day calculation,
this legal error does not hamper our review.



                                           -5-
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           defendant could not be apprehended because his or her
           whereabouts were unknown and could not be determined
           by due diligence;

           (2) any period of time for which the defendant expressly
           waives Rule 600;

           (3) such period of delay at any stage of the proceedings
           as results from:

               (a) the unavailability     of   the   defendant   or   the
           defendant’s attorney;

               (b) any continuance granted at the request of the
           defendant or the defendant’s attorney.


                                 * * *

           (G)

                                 * * *

           If the court, upon hearing, shall determine that the
     Commonwealth exercised due diligence and that the
     circumstances occasioning the postponement were beyond the
     control of the Commonwealth, the motion to dismiss shall be
     denied and the case shall be listed for trial on a date
     certain . . . . If, at any time, it is determined that the
     Commonwealth did not exercise due diligence, the court shall
     dismiss the charges and discharge the defendant.

Pa.R.Crim.P. 600.

     This Court has outlined the requirements for the calculation of the

relevant Rule 600 time period in the following manner:

     The first step in determining whether a technical violation of Rule
     600 has occurred is to calculate the “mechanical run date.”
     Commonwealth v. Aaron, 804 A.2d 39, 42 (Pa. Super. 2002).
     The mechanical run date is the date by which the trial must
     commence under Rule 600. Id. It is calculated by ascertaining
     the number of days in which the Commonwealth must
     commence trial under Rule 600 and counting from the date on
     which the criminal complaint was filed. Id. The mechanical run

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J-A28032-15


      date can be modified or extended by adding any periods of time
      in which the defendant causes delay. Id. Once the mechanical
      run date is modified accordingly, it then becomes an “adjusted
      run date.” Id.

             Rule 600 takes into account both “excludable time” and
      “excusable delay.” Commonwealth v. Hunt, 858 A.2d 1234,
      1241 (Pa. Super. 2004). “Excludable time” is defined in Rule
      600(C) as the period of time between the filing of the written
      complaint and the defendant’s arrest, provided that the
      defendant could not be apprehended because his whereabouts
      [were] unknown and could not be determined by due diligence;
      any period of time for which the defendant expressly waives Rule
      600; and/or such period of delay at any stage of the proceedings
      as results from: (a) the unavailability of the defendant or the
      defendant’s attorney; and/or (b) any continuance granted at the
      request of the defendant or the defendant’s attorney. Id. (citing
      Pa.R.Crim.P. 600(C)). The “due diligence” required under Rule
      600(C)(1) pertains to the Commonwealth’s efforts to apprehend
      the defendant. Id. at 1241 n.10. The other aspects of Rule
      600(C) defining “excludable time” do not require a showing of
      due diligence by the Commonwealth. Id. “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
      diligence. See id. at 1241-42 (explaining manner in which
      excludable time, excusable delay and due diligence are to be
      determined); see also DeBlase, 665 A.2d at 431 (discussing
      excludable time and excusable delay).

Commonwealth v. Murray, 879 A.2d 309, 313 (Pa. Super. 2005) (internal

citations modified).

      In addition,

      “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.’”
      [Commonwealth v. Preston, 904 A.2d 1, 14 (Pa. Super.
      2006)] (citation omitted).




                                     -7-
J-A28032-15


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

Ramos, 936 A.2d at 1103 (citation omitted).

      At the hearing on the Rule 600 motion, Appellant moved the Quarter

Sessions file into evidence.   The Commonwealth presented no evidence.

After hearing argument, the trial court denied the motion.     The case then

proceeded to trial where, as previously noted, Appellant was found guilty of

retail theft.

      The trial court subsequently addressed Appellant’s Rule 600 claim in

its Pa.R.A.P. 1925(a) opinion, as follows:

             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 in the computation of the
      time within which trial must commence. Any other periods of
      delay shall be excluded from the computation. Pa R.Crim.P. 600
      (C)(l). If the Commonwealth attempts to bring a defendant to
      trial beyond the 365 day-period prescribed by Rule 600, and the
      defendant files a Rule 600 motion to dismiss, the court must
      assess whether there is excludable time and/or excusable delay.
      Hill, supra at 263, 736 A.2d at 591; Pa.R.Crim.P. 600(C), (G).
      “Even where a violation of Rule [600] has occurred, the motion
      to dismiss the charges should be denied if the Commonwealth
      exercised due diligence and . . . the circumstances occasioning
      the postponement were beyond the control of the
      Commonwealth.” Id. at 263, 736 A.2d at 591.

           “Due diligence is a fact-specific concept that must be
      determined on a case-by-case basis.” Id. at 256, 736 A.2d at
      588. “Due diligence does not require perfect vigilance and


                                     -8-
J-A28032-15


     punctilious care, but rather a showing by the Commonwealth
     that a reasonable effort has been put forth.” Id.

          In the case sub judice, the criminal complaint was filed on
     May 10, 2013, and Appellant’s Rule 600 motion was denied and
     the case was brought to trial on December 18, 2014. A total of
     587 days elapsed before the case was brought to trial. As the
     case was brought to trial after the mechanical run date of
     May 10, 2014, the court must determine whether anytime was
     excludable or excusable.

          Initially, the court notes that the time from filing of the
     criminal complaint on May 10, 2013 until Appellant’s arrest on
     September 10, 2013 is not excluded totaling 123 days for Rule
     600 purposes.

           The Commonwealth successfully met its burden of
     demonstrating a prima facie case at the first listing of the
     preliminary hearing on September 26, 2013. In fact, no delay is
     attributable to the Commonwealth from the entire period
     between the filing of the complaint on September 10, 2013 and
     the first trial date, February 11, 2014. Therefore, those 154
     days of the case are excluded from Rule 600 calculation. See
     Commonwealth v. Claffey, 80 A.3d 780, 788 (Pa. Super.
     2013). (“At the preliminary hearing, the magistrate held the case
     for court. Thus, the Commonwealth secured a magisterial ruling
     that the Commonwealth had met its prima facie burden. The
     Commonwealth moved the case forward. The Commonwealth
     did not delay it. The case then proceeded past the preliminary
     hearing, through arraignment and toward trial . . . .”)[.]

          The court notes that the case did not proceed to trial on
     July 14, 2014 because the video disc passed to defense in
     discovery was technically defective. The issue was corrected in
     time for the next listing. The court heard nothing to indicate
     that the Commonwealth was not duly diligent in its effort to
     provide a proper copy of the video to Appellant, but rather was a
     simple issue of compatibility, where the disc did not function
     correctly in one computer. Therefore the court found the time
     from July 14, 2014 to October 6, 2014, totaling 84 days was
     excludable.

           Additionally, this court is compelled to note that it was,
     during the calendar year of 2014, running a hybrid schedule.
     Criminal trials and probation violations for judges no longer
     sitting in the criminal division were heard on alternating weeks.

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       In fairness to the Commonwealth, any continuances, excludable
       or otherwise, requested after the initial trial listing on
       February 11, 2014 were consequently, and beyond the
       Commonwealth’s control, scheduled approximately twice as
       distant as would normally have been the case for similarly
       situated defendants.

             Subtracting the 154 days of excludable pre-trial time and
       the 84 days of excludable time for the Commonwealth’s request
       from the total time of 587 days yields 349 days, an amount
       below the 365 day limit of Rule 600. As such, Appellant was
       tried consistent with Rule 600.

Trial Court Opinion, 3/10/15, at 6–8.

       On appeal, Appellant specifically challenges the trial court’s exclusion

of the period between September 10, 2013, and February 11, 2014, in its

Rule 600 calculation.3         Appellant asserts that the time included in a

Rule 600 computation should be comprised of not only those days during

which the Commonwealth causes a delay, but also the time attributable to

the conventional progression of a case. Appellant supports his position by

reference to the dictionary definition of delay:                 “a situation in which

something happens later than it should; the amount of time that you must

wait   for   something     that   is   late.”      Appellant’s    Brief   at   14   (citing

http://wwww.merriam-webster.com/dictionary/delay).                        According     to

Appellant, if delay is so defined, then the time attributable to the normal


____________________________________________


3
  Appellant concedes that the period between July 14, 2014, and October 6,
2014, when the Commonwealth diligently pursued a discovery request for
the surveillance video, was excluded properly from the trial court’s Rule 600
calculation. Appellant’s Brief at 13–14.



                                          - 10 -
J-A28032-15


stages   of   a   criminal   proceeding—“filing   of   complaint,   preliminary

arraignment, preliminary hearing, court arraignment, pre-trial hearing, and

trial–. . . must count towards the applicable Rule 600 period in which to

bring a defendant to trial.” Id. at 15.

      Although we cannot endorse Appellant’s blanket theory that time

attributable to the normal progression of a criminal case is always includable

for purposes of a Rule 600 calculation, we do agree that Rule 600 creates a

presumption that 365 days is a reasonable amount of time by which to bring

a defendant to trial. However, when a defendant on bail is not tried within

such time, the excludable or excusable nature of any particular period

depends on the specific facts of the case. With regards to the duty of the

Commonwealth, a straightforward reading of our case law requires the

Commonwealth to act diligently to bring a case to trial and to present

evidence supporting its diligence at the Rule 600 hearing. As we stated in

Commonwealth v. Claffey, 80 A.3d 780 (Pa. Super. 2013):

      [A] Rule 600 motion shall be denied if the Commonwealth acted
      with due diligence in attempting to try the defendant timely and
      the circumstances occasioning the delay were beyond the
      Commonwealth’s control. Commonwealth v. Riley, 19 A.3d
      1146, 1148–1149 (Pa. Super. 2011); Pa.R.Crim.P. 600(G).
      Thus, if the Commonwealth acted with due diligence and the
      delay in question was beyond the Commonwealth’s control, the
      delay is excusable. Riley, 19 A.3d at 1148–1149.

Id. at 786. See also Ramos, 936 A.2d at 1102 (if defendant’s trial takes

place outside of the adjusted run date, pursuant to Rule 600(G), it must

then be determined whether the delay occurred despite the Commonwealth’s


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due diligence); Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super.

2013) (Rule 600 provides for dismissal of charges in cases in where the

defendant has not been brought to trial within the term of the adjusted run

date, after subtracting all excludable time and excusable delay that occurs

as a result of circumstances beyond the Commonwealth’s control and

despite its due diligence).     Conversely, if the Commonwealth was not

attentive to the progression of the case, any ensuing delay will not be

excluded.     Cf. Commonwealth v. Colon, 87 A.3d 352, 361 (Pa. Super.

2014) (Rule 600 violation occurred when Commonwealth failed to exercise

due diligence to try the appellant within 365 days of filing of the criminal

complaint).

      Even the cases cited by Appellant to support his argument concerning

includable time factor in the Commonwealth’s diligence in assessing delay

questions. In Commonwealth v. Preston, 904 A.2d 1 (Pa. Super. 2006),

this Court considered whether failure to provide mandatory discovery is a

basis for “excusable delay” of trial.   Id. at 12.       After the Preston Court

determined that there was no excludable time attributed to the defense, it

shifted its analysis to “whether any excusable delay is attributable to factors

beyond the Commonwealth’s control.”          Id.   Markedly, the Court did not

specifically reference   any period it considered includable         because    it

represented     the   normal   progression    of   the    case.    Similarly,   in

Commonwealth v. Horne, the time during which the matter was on appeal


                                    - 12 -
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was excluded from the Rule 600 calculation because “the Commonwealth did

not take the appeal in bad faith and it was diligent in pursuing the appeal.”

Horne, 89 A.3d at 284.           While Appellant is correct that the Horne Court

declared that the clock began to run again after remand, it offered no basis

for this determination. Id. Finally, in Commonwealth v. Thompson, 93

A.3d 478 (Pa. Super. 2014), this Court stated that the Commonwealth has

the burden at a Rule 600 hearing to demonstrate that it “exercised due

diligence and the delay was beyond the Commonwealth’s control.” Id. at

488 (quoting Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012)).

The Thompson Court then observed that although the trial court concluded

that the delays in question were caused by administrative error, “there were

no findings regarding the Commonwealth’s efforts, or lack thereof, in

securing Appellant’s presence in court.” Id. at 488. The Court thus decided

it was prudent to remand the matter for a hearing on the Commonwealth’s

diligence in this regard.      Id. at 489.     We are hard-pressed to understand

how this decision bolsters Appellant’s position that time attributed to the

conventional progress of a case is separate from an evaluation of the

Commonwealth’s diligence in bringing a defendant to trial.4

____________________________________________


4
    Despite the fact that the criminal charges against the appellants in
Thompson and Horne were apparently filed when the earlier version of
Rule 600 was in effect, their Rule 600 issues were analyzed under the
current version of the Rule. See Thompson, 93 A.3d at 483 (the appellant
was arrested on December 3, 2009, and tried on October 25, 2011); Horne,
(Footnote Continued Next Page)


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      For its part, the Commonwealth asserts that the period between

September 10, 2013, and February 11, 2014, was excluded correctly

because that 154-day delay was occasioned by the trial court’s scheduling of

the first trial date.          However, in each of the cases cited by the

Commonwealth as authority for its argument, the trial court record included

a definitive statement regarding the demands of the trial court’s schedule.

In Commonwealth v. Jones, 886 A.2d 689 (Pa. Super. 2005), the eighty-

day period between September 13, 2002, and December 2, 2002, was

excusable delay because the trial court determined that December 2, 2002

was the earliest possible trial date. Id. at 701–702. In Commonwealth v.

Brown, 875 A.2d 1128 (Pa. Super. 2005), eighty-one days between

January 17, 2002, and April 8, 2002, were excusable because the trial court

stated that April 8, 2002 was the earliest possible trial date. Id. at 1139.

Similarly, the eighty-two–day period between May 22, 2003 and August 12,

2003 at issue in Commonwealth v. Ramos was deemed excusable

because the trial court decided to list this case as a protracted matter and

was unable to schedule an extended proceeding any earlier than August 12,

2003. Ramos, 936 A.2d at 1104.



                       _______________________
(Footnote Continued)

89 A.3d at 279–280 (a warrant for the appellant’s arrest was issued on
May 21, 2009, and the last of his cases was called for trial on May 14,
2012).



                                           - 14 -
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       In the case sub judice, the trial court made no such findings for the

time period prior to the February 11, 2014 trial listing. Also, the trial court

did not find any excludable delay attributable to Appellant prior to the

adjusted run date, either.        To the contrary, the trial court found that the

Commonwealth         was    not   ready        on   February   11,   2014,   when   the

Commonwealth made its first request for a continuance. The trial court also

found that the Commonwealth was not ready on April 7, 2014, and the case

was again continued. By the next trial listing of May 22, 2014, the adjusted

run date had expired.          Based on the foregoing, we conclude that the

Commonwealth failed to prove that it acted diligently in meeting the 365-

day mandate of Rule 600 in this relatively uncomplicated case. Accordingly,

the trial court erred in not granting the Rule 600 motion to dismiss and

discharging Appellant. 5

____________________________________________


5
    We note that the trial court’s Pa.R.A.P 1925(a) opinion is, at times,
inconsistent and obfuscates, rather than clarifies, the issue before us. When
the trial court detailed the mechanics of its Rule 600 calculation, the 123
days from filing of the criminal complaint on May 10, 2013, until Appellant’s
arrest on September 10, 2013, were included for Rule 600 purposes. Trial
Court Opinion, 3/10/15, at 6. The court next found that because the
Commonwealth successfully met its burden of demonstrating a prima facie
case at the first listing of the preliminary hearing on September 26, 2013,
“no delay is attributable to the Commonwealth from the entire period
between the filing of the complaint on September 10, 2013 and the first
trial date, February 11, 2014. Therefore, those 154 days of the case are
excluded from Rule 600 calculation.” Id. at 7 (emphasis added). In this
writing, the trial court, for the first time, declared that the period between
“the filing of the complaint [erroneously stated to be on September 10,
2013] and the first trial date, February 11, 2014” should not be counted
(Footnote Continued Next Page)


                                          - 15 -
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      In summary, the lack of a record demonstrating the Commonwealth’s

diligence between September 10, 2013, and February 11, 2014, compel the

conclusion that the trial court erred in denying Appellant’s Rule 600 motion

when it excluded those 154 days from its Rule 600 calculation. When that

time is included, Appellant was tried more than 365 days after the criminal

complaint was filed, and a Rule 600 violation occurred.6     Accordingly, we

reverse the denial of Appellant’s motion to dismiss and vacate the judgment

of sentence.

      Order reversed. Judgment of sentence vacated. Appellant discharged.

Jurisdiction relinquished.




                       _______________________
(Footnote Continued)

against the Commonwealth because it represented excusable delay. Indeed,
record evidence of the Commonwealth’s diligence is non-existent for the
entire period between September 10, 2013, and February 11, 2014. In Rule
600 proceedings, “[t]he Commonwealth must prove by a preponderance of
the evidence that it acted with due diligence.” Commonwealth v. Kearse,
890 A.2d 388, 392 (Pa. Super. 2005); See also Ramos, 936 A.2d at 1102
(Commonwealth due diligence is a fact-specific concept that must be
evaluated on an individual basis).
6
   Having concluded that a Rule 600 violation occurred when the 154 days
between September 10, 2013, and February 11, 2014 were improperly
excluded from the trial court’s calculation, we need not discuss in detail the
days between May 22, 2014, and July 14, 2014—a period occurring after the
expiration of the run date of May 10, 2014. At the Rule 600 hearing, the
Commonwealth argued that these fifty-three days should be excluded when
Appellant was not transported to the courthouse because he had been
transferred to a facility other than that named in the bring-down writ.
Without explanation, the trial court agreed to exclude this time.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2016




                          - 17 -
