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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CZESLAW KUC
Appellant No. 964 EDA 2013
Appeal from the Judgment of Sentence March 22, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007281-2012
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 15, 2014
Appellant, Czeslaw Kuc, appeals from the judgment of sentence
entered by the Honorable Roxanne E. Covington, Court of Common Pleas of
Philadelphia County, contending that the Commonwealth violated his rights
to a speedy trial. After careful review, we affirm.
On December 8, 2011, Kuc was charged via criminal complaint with
violations of the Uniform Firearms Act, terroristic threats, and simple
assault. After several listings were continued due to the absence of a Polish
interpreter for Kuc, as well as the absence of the complaining witness, the
Commonwealth moved to withdraw the complaint on March 22, 2012. The
Commonwealth subsequently re-filed the complaint on April 11, 2012.
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*
Retired Senior Judge assigned to the Superior Court.
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The case was listed for trial on September 17, 2012, and both parties
reported as ready for trial. The case was postponed, however, due to a
“court continuance.” On December 5, 2012, both parties reported as ready
for trial, only to have the case continued due to the assigned judge’s
unavailability. The case was continued one more time due to the absence of
the Polish interpreter, and proceeded to a bench trial on March 22, 2013. At
the conclusion of the trial, the court found Kuc guilty on all charges, and
sentenced him to a term of incarceration of six to twelve months, to be
followed by a two year probationary period. This timely appeal followed.
On appeal, Kuc raises only one issue. Kuc argues that the
Commonwealth violated his right to a speedy trial. Specifically, Kuc argues
that the mechanical run date for Rule 600 was exceeded, and that the
Commonwealth did not establish that it had exercised due diligence in
bringing the case to trial. Kuc contends that the Commonwealth was
required to demonstrate due diligence throughout the pendency of the case.
Kuc concedes that since the trial court calculated the run dates from the first
complaint filed, Commonwealth v. Meadius, 870 A.2d 802 (Pa. 2005)
does not apply.
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In cases such as this one, Rule 6001 requires the Commonwealth to
bring a defendant to trial within one year of the filing of the criminal
complaint. See Pa.R.Crim.P., Rule 600(A)(3). Our scope and standard of
review on this issue are as follows:
Our standard of review relating to the application of Rule 600 is
whether the trial court abused its discretion. Our scope of review
is limited to the evidence on the record of the Rule 600
evidentiary hearing and the findings of the trial court. We must
view the facts in the light most favorable to the prevailing party.
Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006)
(citation omitted).
Charges shall be dismissed under Rule 600 where a defendant on bail
is not brought to trial within 365 days of the date on which the criminal
complaint against him is filed. See Commonwealth v. Dixon, 589 Pa. 28,
37, 907 A.2d 468, 474 (2006). See also Pa.R.Crim.P., Rule 600(A)(3), 42
PA.CONS.STAT.ANN. (trial “shall commence no later than 365 days from the
date on which the complaint is filed.”). Rule 600, however, specifically
contemplates that certain periods of time shall be excluded in calculating
compliance with the rule. Rule 600 defines excludable time as follows:
(C) In determining the period for commencement of trial, there
shall be excluded therefrom:
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1
Prior Rule 600 was rescinded on October 1, 2012, and new Rule 600 was
made effective on July 1, 2013. See 42 Pa.B. 6622. Since prior Rule 600
was in effect during the trial court’s decision, our analysis will focus on that
version of the Rule.
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(1) 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 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.
Pa.R.Crim.P., Rule 600(C), 42 PA.CONS.STAT.ANN.
Furthermore, even where a Rule 600 violation occurs, a motion to
dismiss should be denied where “excusable delay” occurs. “‘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.” Commonwealth v.
Jones, 886 A.2d 689, 700 (Pa. Super. 2005) (citation omitted).
Based upon our interpretation of the above-cited provisions of Rule
600, it is evident that Kuc was not entitled to the dismissal of his case. In
deciding whether a violation has occurred it is important to keep in mind
how Rule 600 is to be applied. An en banc panel of this Court stated the
following in this regard:
[W]hen 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
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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.
Commonwealth v. Ramos, 936 A.2d 1097, 1100-1101 (Pa. Super. 2007)
(en banc) (citing Commonwealth v. Hunt, 858 A.2d 1234, 1238-39 (Pa.
Super. 2004) (en banc)).
Here, the Commonwealth filed the initial criminal complaint on
December 8, 2011. It is undisputed that both the Commonwealth and Kuc
were ready for trial on September 17, 2012, or 279 days later. See
Appellant’s Brief, at 15. Furthermore, it is undisputed that all subsequent
continuances of the trial were not at the Commonwealth’s request. The trial
court found that all time after September 17, 2012, was excusable delay.
Kuc contends that the Commonwealth failed to establish that it
exercised due diligence during the early stages of the litigation, when it
failed to secure the appearance of the complaining witness, or a Polish
interpreter. “Due diligence does not require perfect vigilance and punctilious
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care, but rather a showing by the Commonwealth that a reasonable effort
has been put forth.” Jones, 886 A.2d at 700 (citation omitted). Since the
Commonwealth was in fact prepared to go to trial within the 365 day period,
the trial court did not abuse its discretion in finding that the Commonwealth
had made a reasonable effort to comply with Rule 600. Thus, Kuc’s sole
issue on appeal merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Platt joins in the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2014
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