Com. v. Motter, D.

J-A14009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

Appellant

DAMIEN ELWOOD MOTTER

Appellee No. 1420 MDA 2015

Appeal from the Order Entered July 16, 2015
In the Court of Common Pleas of Union County
Criminal Division at No(s): CP-60-CR-0000032-2014
CP-60-CR-0000033-2014

BEFORE: BOWES, OTT AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 22, 2016

The Commonwealth appeals from the July 16, 2015 order granting

Appellee’s motion to dismiss pursuant to Pa.R.Crim.P. 600. After careful

review, we reverse.

We glean the following facts from the affidavits of probable cause.

Appellee was charged at two separate criminal numbers for his alleged

involvement in a slew of burglaries. At criminal number CP-60-CR-0000032-

2014, Trooper Ty Brininger of the Pennsylvania State Police filed a complaint

charging Appellee with multiple burglaries in western Union County. Trooper

Brininger learned from Dauphin County law enforcement officials, who were

investigating a series of crimes in that county, that suspects in their cases

* Retired Senior Judge assigned to the Superior Court.
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were linked to the Union County crimes. The connection was made when

search warrants were executed on residences owned by Appellee and

another man, Kyle Dyer. During the service of these warrants, several

hundred items stolen from multiple victims in Union, Dauphin, and Centre

Counties were recovered. Appellee was additionally linked to the Union

County crimes through his and Dyer’s statements to the police.

At criminal number CP-60-CR-0000033-2014, Richard Todd Martin of

the Pennsylvania Department of Conservation of Natural Resources filed

charges against Appellee for the burglaries of five privately-owned cabins in

Bald Eagle State Forest. Mr. Martin learned of the aforementioned State

Trooper investigation and spoke with Dyer, who toured the cabins with Mr.

Martin and implicated Appellee. One of the victims of the Bald Eagle State

Forest burglaries was Union County Assistant District Attorney Martin Wilson,

who is employed by the agency prosecuting Appellee.

Appellee was charged via written complaint for both cases on October

24, 2013. A preliminary hearing was scheduled for December 17, 2013.

However, the affiant officers for the respective cases requested a

postponement, which was granted. The hearings were thus rescheduled to

January 14, 2014, at which time the matter was postponed, at Appellee’s

request, to January 28, 2014. Appellee waived his preliminary hearings for

both cases on that date.

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Criminal informations were filed at both cases on March 18, 2014, with

a corresponding motion to join the cases with the prosecutions of Dyer. The

procedural history following the filing of these charges is somewhat

convoluted.1 On June 11, 2014, the court docketed an order directing the

parties to appear on July 14, 2014, for a guilty plea. 2 Appellee, represented

by Mark Lemon, Esquire, appeared for that hearing, with Assistant District

Attorney Wilson representing the Commonwealth. Attorney Lemon

stipulated at a later evidentiary hearing that the Commonwealth had

commenced plea negotiations on May 28, 2014, and that he agreed to

discuss the plea offer with Appellee. N.T., 8/7/15, at 5. However, all of the

parties perceived that since Mr. Wilson was a victim in this matter, he could

not represent the Commonwealth at the hearing. Thus, the trial court

stated, “It would seem inappropriate to proceed with your case while Mr.

Wilson is representing the Commonwealth under these circumstances, plus

Mr. Lemon has indicated to me there are a couple details he wishes to

discuss about your case with Mr. – with the District Attorney.” N.T. 7/14/14,

____________________________________________

1
A chart detailing the events and our ultimate calculations is appended to
this memorandum.
2
According to the Pa.R.A.P. 1925(a) opinion filed in this matter, this is
standard practice in Union County. At the hearing, the defendant is given an
opportunity to enter a plea or advise that the matter will be set for a jury
trial. Trial Court Opinion, 12/15/15, at 2, n.1.

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at 2. The court stated it was inclined to continue the proceedings.

Significantly, the court asked Appellee if he wished to conduct “your plea

and sentencing by video,” to which Appellee said yes. 3 Id. at 3 (emphasis

added). The court then asked, “Have you had an opportunity to discuss the

advantages and disadvantages to you entering a plea and being sentenced

by video with Mr. Lemon?” Id. Appellee again responded affirmatively. Id.

Consistent with these representations, the matter was postponed “until the

last day of the next term of court.” Id. at 4. That hearing, set for

September 14, 2014, was rescheduled due to problems arranging the video

conference.

On November 3, 2013, an order was issued scheduling another guilty

plea hearing for December 8, 2014. However, on November 12, 2014

Attorney Lemon filed a motion to withdraw as counsel. In this motion,

counsel represented that Appellee sent a letter declaring his intentions to

proceed to trial and to file an ineffectiveness claim if he were found guilty.

The parties appeared for the December 8, 2014 hearing and the court

remarked, “The [c]ourt’s been informed that [Appellee] is asking that the

matter be listed for trial as he has no intentions of entering a plea.” N.T.,

12/8/14, at 2. Attorney Lemon placed the following on the record:

____________________________________________

3
Appellee was incarcerated in a state correctional facility.

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Your Honor, I – Mr. Motter is incarcerated in the state
correctional facility. I sent him, and I think he can verify, a filled
out plea agreement with correspondence indicating what the
plea proposal was from the District Attorney’s Office.

Mr. Motter indicated he does not feel he should accept that
particular offer and at that point had indicated that he felt that I
had not been entirely effective in my representation of him, and
I think it’s outlined in my motion to withdraw that he would take
it to trial and have this case overturned when he filed a PCRA
against me for ineffectiveness.

Id. at 3. Appellee informed the court that he had previously spoken with

Mr. Lemon about filing a suppression motion if a satisfactory plea deal could

not be reached. With Appellee’s consent, Mr. Lemon withdrew his motion

and agreed to file an omnibus motion. Via written order, the trial judge

directed Appellee to file the omnibus motion and brief within thirty days,

with the Commonwealth’s brief to follow ten days after. Additionally, the

order set jury selection for January 26, 2015, and further ordered the

Deputy Court Administrator to schedule an expedited omnibus hearing prior

to jury selection upon filing of the Commonwealth’s brief. Order, 12/9/14, at

1.

On December 30, 2014, Appellee filed an omnibus motion and brief

seeking suppression of all items recovered from Appellee’s residence, as well

as all statements made by Appellee. The court issued an order scheduling a

two-hour hearing for January 20, 2015. Order, 12/31/14, at 1.

The certified record next reveals that on January 6, 2015, the trial

judge issued an order rescheduling the omnibus hearing. There is no

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corresponding motion to postpone. The order stated that the “matter is

continued by the [c]ourt to allow sufficient time for all the issues to be

properly presented. The Commonwealth’s time to file a brief is extended by

thirty (30) days.” Order, 1/7/15, at 1.

The Commonwealth complied with the new deadline, filing its brief on

February 3, 2015. The next entry on the docket is March 10, 2015, when

the court issued an order rescheduling the omnibus hearing for May 1, 2015.

This order did not set a date for jury selection.

On May 1, 2015, the Commonwealth, represented by Assistant District

Attorney Philip Sassaman, appeared at the suppression hearing and stated

that its sole witness, the trooper who conducted the searches in question,

was not present. The trial judge presented two options: he would issue a

bench warrant for the trooper’s arrest or grant suppression. The

Commonwealth did not request the warrant and the judge granted

suppression of all evidence recovered from Appellee’s residence due to the

Commonwealth’s failure to meet its burden of proof. The Commonwealth

did not appeal.

The trial court thereafter issued an order on May 4, 2015, ordering

Appellee to appear for another guilty plea on June 2, 2015. However, on

May 28, 2015, Attorney Lemon filed a motion for continuance, stating

“Attorney Lemon and the Union County District Attorney are still negotiating

the terms of a possible plea agreement.” Motion, 5/28/15, at ¶ 5. The

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judge granted this request the next day, and the parties were then ordered

to appear for jury selection commencing July 27, 2015.

Just one day after requesting the continuance, on May 29, 2015,

Appellee filed a motion to dismiss under Rule 600. Despite the numerous

indications on the record that the parties were negotiating a plea and the

motion requesting more time for negotiations, Appellee averred that he was

always prepared to proceed to trial:

Petitioner, Damien E. Motter, by and through his attorney, Mark
H. Lemon, Esquire, Court Appointed Counsel, moves for
dismissal of the above matters against him because the
Commonwealth has failed to try him within three hundred sixty-
five (365) days from the time the written Complaint was filed
against the Defendant on October 24, 2013.

Petitioner further avers that he and his attorney were available
for trial during that period. And that the defendant only
requested one (1) continuance and caused no other delay
during this time period.

Petition to Dismiss, 5/29/15, at 1 (emphasis added).4

The motion was granted following a July 15, 2015 hearing, ultimately

resulting in this appeal. However, no evidence was presented at the

hearing. The court, frustrated that the Commonwealth was again

represented by an attorney with a perceived conflict, placed the following on

the record:

____________________________________________

4
The one continuance refers to the fourteen-day postponement requested
by Appellee at the preliminary hearing.

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THE COURT: Some factual things so the record is complete.
This is the week of the District Attorney’s conference, if I recall.
It’s also a week that pleas and sentences were scheduled. I
don’t know that there was an objection to that when the
calendar was published.
....

This has been scheduled since June 15th. And I believe, Mr.
Wilson, one, it was your cabin, that was allegedly burglarized or
victimized in this matter; is that correct?
....

Would you agree that you can’t really represent the
Commonwealth in these proceedings?

MR. WILSON: I certainly would agree that I have a conflict. My
understanding from talking to Mr. Johnson going back to the
beginning is that a conflict of an Assistant DA is not a conflict per
se to the DA, where as opposed to a conflict for the DA is a
conflict for the entire office.

And I do know that it should be noted that Mr. Johnson is the
one who authored the brief in this matter, and I assume he’s the
one who’s handled everything in this matter; but, again, I’ve
been out of the loop, so I don’t really know; and the only reason
I am here is just simply because of the absence of other
available ADAs.

THE COURT: Since you have been excluded from the case, you
cannot even address the due diligence argument as far as
whether it should or shouldn’t be dismissed; is that correct?

MR. WILSON: The only thing I would state would be what is
either on the record or in Mr. Johnson’s brief.

N.T., 7/15/15, at 3-5. Following more discussion about the conflict, Appellee

objected to ADA Wilson representing the Commonwealth. The prosecutor

responded:

MR. WILSON: And may I just add for the record so it’s
absolutely clear, my presence here today was not out of any

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kind of affirmative position on the part of this – on our office.
Our office, when we recognized the situation, asked – requested
a continuance. And I don’t know what role Mr. Lemon played in
concurring or not concurring with a continuance, I don’t know so
I’m not going to say; but I just want the record to reflect that we
aren’t insisting that this happen here today.

THE COURT: My understanding is Mr. Wilson is the only
assistant that stayed back, and that was for whatever procedure.

MR. LEMON: But, Your Honor, on the other hand, as you noted,
this was scheduled a good time prior to today, and for the
District Attorney’s office not to make those arrangements or ask
for a continuance – I was contacted after the fact and I was told
the Court would not grant a continuance; and I am not – and I
want to stress that to the Court and Mr. Wilson – impugning that
Mr. Wilson is here out of any other sort of motive than he was
the one stuck behind. That’s not my client’s thought. But be
that as it may, I fall back on what I had stated previously.

THE COURT: A motion for continuance was filed in this?

MR. WILSON: No, no. When I pointed out to Tamara, the staff
administrator, of the issue, she indicated that she tried to – she
communicated to the Court Administrator’s office that here was
the problem of the dilemma; and my understanding is that she –
because of the circumstances, she asked that it be continued.
And her feedback was that, no – I guess the answer was no. I
don’t know why; and I don’t know, you know, much more than
that.

Id. at 7-8. When Mr. Wilson requested a continuance, the judge stated he

did not understand why a motion had not been filed and granted the motion

to dismiss. Id. at 17.

The Commonwealth timely appealed and the matter is ready for our

review. The Commonwealth presents three issues:

1. Did the lower court abuse its discretion when it applied
rescinded Rule 600 resulting in the inclusion of excludable time

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and vice versa where application of new Rule 600 would
establish that the Appellee’s speedy trial rights were not
violated?

2. Did the lower court abuse its discretion when it attributed
delay to the lack of due diligence by the Commonwealth where
the delay was also caused by Appellee?

3. Did the lower court abuse its discretion when it applied
rescinded Rule 600 to the period of time where the record
reflects that the time was attributed to the lower court; some of
this time delay was attributable to court administration; and it
improperly used occurrences later in time to find a lack of due
diligence earlier in time?

Commonwealth’s brief at 4.

Our task is to review the July 16, 2015 order dismissing the petition.

Our standard and scope of review in evaluating Rule 600 issues is well-

settled. We determine

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

Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013) (citing

Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa.Super. 2007) (en

banc) (alterations in original due to rule renumbering)). “The proper

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application of discretion requires adherence to the law, and we exercise

plenary review of legal questions.” Commonwealth v. Baird, 975 A.2d

1113, 1118 (Pa. 2009) (citing Commonwealth v. Chamberlain, 731 A.2d

593, 595 (Pa. 1999)). Where the Commonwealth’s due diligence is at issue,

we apply the following principle:

As has been oft stated, “[d]ue diligence is fact-specific, to be
determined case-by-case; it does not require perfect vigilance
and punctilious care, but merely a showing the Commonwealth
has put forth a reasonable effort.”

Commonwealth v. Bradford, 46 A.3d 693, 701–02 (Pa. 2012) (quoting

Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)).

Rule 600, as rescinded and adopted July 1, 2013, requires the

Commonwealth to try a defendant within one year of filing the complaint.

(A) Commencement of Trial; Time for Trial

(1) For the purpose of this rule, trial shall be deemed to
commence on the date the trial judge calls the case to trial, or
the defendant tenders a plea of guilty or nolo contendere.

(2) Trial shall commence within the following time periods.

(a) Trial 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. Both criminal complaints were filed October 24, 2013,

thus trial was required to commence on or before October 24, 2014.

The Remedies portion of the Rule states that “When a defendant has

not been brought to trial within the time periods set forth in paragraph (A) .

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. . [he] may file a written motion requesting that the charges be dismissed

with prejudice[.]” Pa.R.Crim.P 600(D)(1). Appellee filed that motion on May

29, 2015. Of course, the mere fact that more than 365 days had elapsed by

that point did not automatically entitle Appellee to discharge. The Rule sets

forth a particular method for calculating “the time within which trial must

commence”:

(C) Computation of Time

(1) For purposes of paragraph (A), 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. “[T]he inquiry for a judge in determining whether there is

a violation of the time periods in paragraph (A) is whether the delay is

caused solely by the Commonwealth when the Commonwealth has failed to

exercise due diligence.” Comment, Pa.R.Crim.P. 600.

The trial court’s computation included each day from the date the

complaint was filed through dismissal on July 15, 2015, with the exception of

two time periods. The trial court explained its calculation of time as follows:

In this case 628 days had elapsed from the time of the filing of
the Complaint (October 24, 2013) until the [c]ourt dismissed the
Complaint on July 15, 2015.
...
The [c]ourt has excluded from its calculations the time
[Appellant] continued the preliminary hearing (January 14, 2014
through January 28, 2014) and September 14, 2014 through
December 8, 2014 as stated on Page 37 of the August 7, 2015

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transcript. This would be a total of 99 days. This is still a clear
violation of Rule 600. The [c]ourt also analyzed whether the
Commonwealth exercised due diligence in this matter. The
[c]ourt has concluded that it has not.

Trial Court Opinion, 12/15/15, at 5-6.

The Commonwealth’s first issue challenges the trial court’s inclusion of

time preceding the first guilty plea listing on July 14, 2014. The period from

October 24, 2013, to July 14, 2014, is a total of 263 days. The trial court

included 249 days of that time, subtracting from 263 the fourteen days

owing to defense postponement of the preliminary hearing. We begin our

analysis there.

The Commonwealth declares that the trial court improperly applied

former Rule 600, and maintains that the Rule as rescinded and adopted on

July 1, 2013, represents a significant change in the law with respect to the

Commonwealth’s obligations preceding the first trial listing. Most

significantly, the Commonwealth asserts that only 28 days of the time

period from October 24, 2013, when the complaints were filed, through July

14, 2014, when the matter was first listed for a guilty plea, are included in

the 365-day calculation. Commonwealth’s brief at 45 (“[A]s of July 14, 2015

one would find that only twenty-eight (28) days of the time had run by

virtue of the Commonwealth’s continuance.”).

We disagree, and find that the trial court properly included 249 days

towards the 365-day limit. The comment to Rule 600 makes clear that the

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changes were not substantive. “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.”

Comment, Pa.R.Crim.P 600. The Commonwealth maintains that, in the

absence of an indication that it failed to exercise due diligence, none of that

time may be included in the 365-day calculation.

The new Rule 600 obviously removed the concept of “Excusable
delay” under former sub-paragraph ‘G’ and established that
“Excludable” time is, for purposes of paragraph ‘A’, which is what
is asserted herein, is all delay except, “delay caused by the
Commonwealth when the Commonwealth has failed to exercise
due diligence[.]
....

There was no delay that was attributable to the
Commonwealth which was caused by its lack of due
diligence other than the 28 days between the filing of the
complaints and July 14, 2014. Thus two hundred thirty five
(235) days should be excluded from the calculation.

Commonwealth’s brief at 38, 42-43 (emphasis added). We cannot agree.

The July 2013 revision of the Rule did not eliminate the concept of excusable

time. Contrary to the Commonwealth’s argument, former Rule 600 did not

use the phrase “excusable delay.” Ramos, supra at 1102, n.5 (noting that

excusable delay is not expressly defined in the text of Rule 600). The

excusable delay construct was derived from the language of former Rule

600(G), which

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includes an explicit exception, neither explicitly nor implicitly
included in Rule 600(E). The additional language provides the
Commonwealth with the ability to obtain what this Court . . .
termed to be “an extension” of the 365-day time limit, as
opposed to a Rule 600(C) “exclusion,” to the extent the
Commonwealth has exercised due diligence such that
circumstances occasioning a postponement are beyond its
control

Commonwealth v. Dixon, 907 A.2d 468, 474 (Pa. 2006). Thus, if the

Commonwealth exercised due diligence, the 365-day time limit would be

artificially extended. This notion was directly placed into the text of Rule

600(C)(1):

(C) Computation of Time

(1) For purposes of paragraph (A), 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)(1). The critical inquiry, then and now, is whether the

Commonwealth was at fault for any delay, and, if so, whether the

Commonwealth exercised due diligence during the pertinent time periods.

To repeat, the Rule requires trial to commence within 365 days of

filing.

(A) Commencement of Trial; Time for Trial
...

(2) Trial shall commence within the following time periods.

(a) Trial in a court case in which a written complaint
is filed against the defendant shall commence within

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365 days from the date on which the complaint is
filed.

Pa.R.Crim.P. 600. Under the Commonwealth’s proffered interpretation, none

of the time preceding a first listing would ever be included in the (A)(2)(a)

calculation, absent a showing that the Commonwealth failed to exercise due

diligence.5 This reading flips the applicable burden. “The Commonwealth

has the burden of establishing by a preponderance of the evidence that it

exercised due diligence throughout the prosecution.” Commonwealth v.

Roles, 116 A.3d 122, 125 (Pa.Super. 2015). Since the Commonwealth did

not bring Appellee to trial within 365 days of the date the complaint was

filed, the Commonwealth bore the burden of showing which periods of delay,

if any, should not be included under Rule 600(A)(2)(a). The changes to the

Rule did not eliminate that requirement.6

____________________________________________

5
While the Commonwealth concedes that its twenty-eight day
postponement of the preliminary hearing should be included in the 365-day
calculation, that concession highlights the errors in its analysis. Under its
interpretation of Rule 600, the prosecution could simply not set a preliminary
hearing at all, and that time would not be included, since there would be no
indication the Commonwealth failed to exercise due diligence.
6
We note that our Supreme Court granted, on July 19, 2016, a Petition for
Allowance of Appeal on a related issue. In Commonwealth v. Mills, 136
A.3d 1028 (Pa.Super. 2016) (unpublished memorandum), we held that the
trial court improperly included in the 365-day calculation a period of 187
days from September 27, 2011, which was a status conference date,
through April 2, 2012, which was the earliest available trial date. We
determined that this block of time was not delay caused by the
(Footnote Continued Next Page)

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Thus, mindful that we must view the facts in the light most favorable

to Appellee as the prevailing party, we hold that the trial court correctly

applied the law and did not abuse its discretion. As of July 14, 2014, 263

total days had elapsed, and only fourteen of those days is excluded from the

365-day computation, as the Commonwealth cannot be at fault where

Appellee requests the delay (formerly labeled “excludable time”). Therefore,

the trial court properly included the remaining 249 days in the (A)(2)(a)

calculation. See Appendix. Accordingly, the Commonwealth had 116 days

remaining in which to try Appellee.

We now address the time periods following the July 14, 2014 guilty

plea postponement through December 8, 2014 when Appellant requested a

trial. This is a total of 147 days, and the trial court included 48 of these
_______________________
(Footnote Continued)

Commonwealth, because the delay was due to the trial court’s unavailability.
Our Supreme Court granted review on the following question:

Did not the trial court properly grant [P]etitioner's motion to
dismiss pursuant to Pa.R.Crim.P. 600, where the time form [sic]
a scheduling conference to a status listing consisted of time
attributable to the conventional progression of a criminal case
and was not judicial “delay,” and was therefore correctly
included in the calculation of the 365 days in which to bring
[P]etitioner to trial, and thus where more than 365 days elapsed
before [P]etitioner was brought to trial?

Commonwealth v. Mills, 141 A.3d 1275 (Pa. 2016). Mills may shed light
on arguments raised by the Commonwealth regarding what effect the
conventional progression of a criminal case has upon the (A)(2)(a)
calculation.

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days towards the 365-day limit. The Commonwealth asserts that the trial

court failed to account for Appellee’s role in these delays, and highlights that

Appellee contributed to the delays by requesting postponements to negotiate

a plea. Appellee counters that, with respect to the July 14, 2014 guilty plea

hearing, ADA Wilson could not represent the Commonwealth due to a

perceived conflict. In Appellee’s view, the Commonwealth did not act with

due diligence by having ADA Wilson appear in court for the first guilty plea

hearing. Appellee’s brief at 10. This scheduling mistake, Appellee avers,

justifies including the entire 147 day period spanning July 14, 2014, when

the case was postponed, through December 8, 2014, when Appellee

requested a trial, in the 365-day calculation.

We disagree. Appellee and the trial court both proceeded from the

misapprehension that Appellee did not contribute to these delays. For the

following reasons, we hold that none of the 147 days spanning July 14, 2014

through December 8, 2014 is included in the (A)(2)(a) computation.

First, the July 14, 2014 hearing concluded with Appellee agreeing to

enter a plea via video, which was scheduled for September 14, 2014, sixty-

two days later. Despite stating on the record on July 14, 2014 that Appellee

would enter a plea at the next listing, the trial court’s opinion retroactively

charges these sixty-two days to the Commonwealth, stating

Of significance, is the fact that Assistant District Attorney Martin
Wilson appeared for the Commonwealth at the July 14, 2014
pretrial conference/guilty plea hearing. It was disclosed at that

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point that Attorney Wilson, an Assistant District Attorney of
many years and personal friend of the District Attorney D. Peter
Johnson, was an alleged victim in one of the cases. Mr. Wilson
and his wife lease a cabin that was allegedly burglarized by the
Defendant. In spite of the defense requesting the
continuance, it would have been impossible to proceed on
July 14, 2014 as Mr. Wilson could not conceivably represent the
Commonwealth and still be a victim of one of the cases.

Trial Court Opinion, 12/15/15, at 2 (emphasis added).7 We do not find that

fact significant. Pursuant to the court’s own opinion, the sole purpose of the

July 14, 2014 conference was to give the defendant “an opportunity to enter

a plea or advise that the matter will be set for a jury trial.” 8 Appellee did not

____________________________________________

7
Neither the parties nor the court explored the possibility of Appellee
waiving any conflict of interest arising from Mr. Wilson representing the
Commonwealth for the limited purpose of accepting a plea bargain
negotiated by a completely different prosecutor.
8
We direct the parties and the trial court to paragraph C of the Rule, which
outlines a specific procedure for granting or denying a continuance.

(C) Computation of Time

....

(3)(a) When a judge or issuing authority grants or denies a
continuance:

(i) the issuing authority shall record the identity of
the party requesting the continuance and the
reasons for granting or denying the continuance; and

(ii) the judge shall record the identity of the party
requesting the continuance and the reasons for
(Footnote Continued Next Page)

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enter a plea, nor did he request a trial. Instead, Appellee explicitly agreed

to enter a plea via video conference, and requested a continuance for that

purpose. N.T., 7/14/14, at 4. That hearing was set for September 14,

2014. The trial court included the sixty-two day period from July 14, 2014

to September 14, 2014 in the (A)(2)(a) calculation. This was erroneous, as

the defense agreed to the postponement. “If the defense does indicate

approval or acceptance of the continuance, the time associated with the

continuance is excludable under Rule 600 as a defense request.”

Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004) (en banc)

(quoting Commonwealth v. Guldin, 463 A.2d 1011, 1014 (Pa. 1983)).

This misapplication of the law constitutes an abuse of discretion.

We next consider the postponement of the September 14, 2014

hearing, which was rescheduled for December 8, 2014. This time period of

eighty-five days was excluded from the 365-day calculation, as the court

administrator did not arrange a video conference link to Appellee’s prison.
_______________________
(Footnote Continued)

granting or denying the continuance. The judge also
shall record to which party the period of delay
caused by the continuance shall be attributed, and
whether the time will be included in or excluded from
the computation of the time within which trial must
commence in accordance with this rule.

Pa.R.Crim.P. 600(C)(3)(a)(i-ii). Following this procedure would have greatly
aided our inquiry.

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J-A14009-16

The court concluded that the Commonwealth was not at fault for this delay,

as it did not bear the duty of arranging the link. We agree with the court’s

conclusion in this regard. Therefore, this eighty-five day time period was

properly excluded from the (A)(2)(a) calculation.

We now address the events of December 8. The court commenced the

proceeding by stating, “The [c]ourt’s been informed that the Defendant is

asking that the matter be listed for trial as he has no intentions of entering a

plea.” N.T., 12/8/14, at 2. Appellee was granted permission to file pre-trial

motions and a brief within thirty days. The trial court ordered jury selection

for January 26, 2015, with the suppression hearing to precede selection on

January 20, 2015.

We summarize our findings to this point. As of December 8, 2014,

410 total days had elapsed from October 24, 2013, the date the complaints

were filed. We find that only 249 of these days are included in the 365-day

calculation. Thus, as of December 8, 2014, when Appellee first informed the

court he wished to proceed to trial, the Commonwealth had 116 days

remaining in which to commence trial. Adding the 116 days to December 8,

2014 yields April 3, 2015. Thus, had trial proceeded on January 26, 2015 as

originally set by the court, Rule 600 would not have been violated.

Obviously, trial did not occur on January 26. At this juncture we must

address Appellee’s filing of pretrial motions. In Commonwealth v. Hill,

736 A.2d 578 (Pa. 1999), our Supreme Court established that the filing of a

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J-A14009-16

pre-trial motion does not automatically render a defendant unavailable for

trial for purposes of the Rule. However, Hill established that delay in the

commencement of a trial caused by the filing of pre-trial motions is not

chargeable to the Commonwealth if the Commonwealth exercised due

diligence in responding to the motion.

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. at 587 (footnote and citations omitted).

Herein, jury selection was set to commence January 26, 2015, with

pretrial motions preceding trial the previous week. Under Hill, the time

from December 8, 2014, when Appellee requested trial, through January 26,

2015, would be included in the 365-day calculation, absent other

circumstances, as commencement of trial would not have been delayed by

the motion.9

We begin our analysis by setting forth the circumstances surrounding

the postponement of the January 20, 2015 suppression hearing. That

hearing—and, by extension, the trial—was postponed due to the
____________________________________________

9
Our Supreme Court’s allowance of appeal in Commonwealth v. Mills,
141 A.3d 1275 (Pa. 2016) may address whether any of this time would be
included in the first instance. The panel in Mills determined, in a
substantially similar situation, that none of the time from the pre-trial
conference through the actual trial was included in Rule 600’s calculation, as
the court was unavailable for trial.

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J-A14009-16

Commonwealth requesting additional time to respond to the pretrial

motions. The trial court granted that request by order dated January 7,

2015, which states:

AND NOW, this 6 day of January, 2015, the Omnibus hearing
scheduled for January 20, 2015 at 9:30 a.m. is CONTINUED.
The Deputy Court Administrator is directed to schedule a hearing
in this matter allowing one-half (1/2) day for that purpose. The
matter is continued by the [c]ourt to allow sufficient time for all
the issues to be properly presented. The Commonwealth’s time
to file a brief is extended by thirty (30) days.

Order, 1/7/15, at 1. The trial court’s opinion adds the following facts

regarding this continuance:

On January 6, 2015[,] in an extremely unusual situation, the
[c]ourt continued the Omnibus Motion on an off-record, oral
request of the Commonwealth.

The Union County District Attorney was experiencing significant
medical issues at the time and the [c]ourt, in retrospect,
inappropriately granted the continuance request as a courtesy to
the Commonwealth due to the circumstances.

The [c]ourt was informed by the Commonwealth that the two (2)
hours allotted by Court Administration for the hearing was not a
sufficient amount of time for the hearing.

As a result of the foregoing, [j]ury [s]election on January 26 and
27, 2015 was cancelled and an Omnibus hearing was
scheduled for May 1, 2015 and one-half (1/2) day was
allotted for the hearing based on the Commonwealth’s
representations.

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J-A14009-16

Trial Court Opinion, 12/15/15, at 3.10 Attorney Lemon stated he was

unaware of the postponement request, N.T., 7/15/15, at 15, and the

prosecutor conceded this point when he described the scheduling

communication with the judge as ex parte. N.T., 8/7/15, at 20.

We agree that the trial court inappropriately granted the continuance

request in that Appellee was not given an opportunity to respond.11

Nevertheless, the fact remains that the postponement was granted for the

express purpose of giving the Commonwealth additional time to respond to

the motion. Obviously, trial could not commence until the pretrial motions
____________________________________________

10
We discuss infra the effect of the trial court’s scheduling the matter on
this date.
11
Code of Judicial Conduct, Rule 2.9(A) states:

(A) A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the
judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter, except as follows:

(1) When circumstances require it, ex parte
communication for scheduling, administrative, or
emergency purposes, which does not address
substantive matters, is permitted, provided:

(a) the judge reasonably believes that no party will
gain a procedural, substantive, or tactical advantage
as a result of the ex parte communication; and

(b) the judge makes provision promptly to notify all
other parties of the substance of the ex parte
communication, and gives the parties an opportunity
to respond.

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J-A14009-16

were resolved. The trial court granted a postponement for the

Commonwealth to file a brief in response and to prepare its presentation of

the issues at an evidentiary hearing. We have reviewed the suppression

motion, accompanying brief, and the Commonwealth’s response thereto. As

Appellee’s motion stated, this investigation spanned several counties. The

search yielded several hundred stolen items matching various burglaries

across multiple counties. The motion challenged the search warrant for

Appellee’s residence on several grounds and separately challenged the

search warrant for co-defendant Dyer’s residence, claiming that warrant was

invalid, and, to the extent the search of Appellee’s residence was based on

that information, the later search was excludable as fruit of the poisonous

tree. Additionally, the motion complains that the items were not described

with sufficient particularity.

Under these facts, we hold that the Commonwealth cannot be found to

have failed to exercise due diligence. This suppression motion was not a

simple matter, and we think that the Commonwealth put forth a reasonable

effort given the complexity of the motion. We observed in Commonwealth

v. Dixon, 140 A.3d 718, (Pa.Super. 2016), that

‘[T]he Commonwealth must do everything reasonable within its
power to guarantee that a trial begins on time,’ and the
Commonwealth has the burden of demonstrating by a
preponderance of the evidence that it exercised due diligence.
‘As has been oft stated, [d]ue diligence is fact-specific, to be
determined case-by-case; it does not require perfect vigilance

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J-A14009-16

and punctilious care, but merely a showing the Commonwealth
has put forth a reasonable effort.’

Id. at 722-23 (citing Commonwealth v. Colon, 87 A.3d 352, 359

(Pa.Super. 2014)). Significantly, the Commonwealth filed its brief on

February 3, 2015, just two weeks after the suppression hearing was

originally scheduled to commence.

In determining that the Commonwealth exercised due diligence, we

must note our disagreement with the trial court’s due diligence analysis.

The court failed to account for Hill and its progeny. Instead, the trial court

focused solely on the fact that the Commonwealth’s witness failed to appear

at the rescheduled May 1, 2015 suppression hearing.

The [c]ourt also analyzed whether the Commonwealth exercised
due diligence in this matter. The [c]ourt has concluded that it
has not.
....

[T]he [c]ourt, in trying to accommodate the District Attorney's
Office allowed an oral continuance without a written motion of an
Omnibus hearing. The District Attorney was experiencing
significant medical issues and the [c]ourt was aware of these at
the time and accepted the representations and request for a
continuance.

And then, after the hearing was continued to accommodate the
Commonwealth, the Commonwealth appeared totally unprepared
for the May 1, 2015 hearing. No witnesses appeared for the
Commonwealth and only one (1) witness was allegedly
subpoenaed resulting in not only the Omnibus Motion being
granted but a waste of one-half (1/2) day of [c]ourt time and an
unnecessary delay of resolution of the case.

Trial Court Opinion, 12/15/15, at 6-7.

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J-A14009-16

The mere fact that the witness failed to appear does not alone warrant

a finding that the Commonwealth failed to act with due diligence in securing

his presence. Commonwealth v. Hyland, 875 A.2d 1175, 1191–92

(Pa.Super. 2005) (“The Commonwealth cannot be held to be acting without

due diligence when a witness becomes unavailable due to circumstances

beyond its control.”). The trial court failed to consider the Commonwealth’s

representation that the witness was subpoenaed for the May 1, 2015 hearing

and did not appear due to circumstances beyond its control. In any event, it

was legal error to retroactively find the Commonwealth did not act with duly

diligent efforts back in January, when additional time was requested. The

court failed to apply Hill, supra.

To summarize, we conclude that commencement of the January 26,

2015 jury selection was delayed by the filing of a pretrial motion, and the

Commonwealth exercised due diligence in responding to the motion.

Accordingly, the forty-nine day period from December 8, 2014, through the

trial date of January 26, 2015, is not included in the (A)(2)(a) calculation.

We must now discuss the fact that trial was not rescheduled. Instead,

the court rescheduled the suppression motion hearing for May 1, 2015. The

trial court issued that order on March 10, 2015. A corresponding jury

selection date was not scheduled. The Commonwealth asks us to find all of

the time from January 26, 2015 through the ultimate date of dismissal is

chargeable to the trial court and court administration. “Here the lower court

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J-A14009-16

is holding the Commonwealth responsible for its clogged dockets. These are

delays for which the Commonwealth has no control.” Commonwealth’s brief

at 53. Appellee and the trial court, on the other hand, blame the

Commonwealth, stating that the prosecution’s Rule 600 computer system

did not flag any issues and the Commonwealth “fail[ed] to notify Court

Administration of the need for expedited hearing dates.” Trial Court Opinion,

12/15/15, at 8.12

We agree with the Commonwealth. Commonwealth v. Bradford, 46

A.3d 693 (Pa. 2012), illustrates that the Commonwealth may rely on other

judiciary offices to fulfill their obligations, including scheduling of motions.

In Bradford, the Commonwealth initiated charges by filing a criminal

complaint. Fifteen days later, a preliminary hearing was held, with an

assistant district attorney present. All charges were held for court, but the

magisterial district judge, for unstated reasons, failed to forward documents

to the Department of Court Records as required by Pa.R.Crim.P. 547(B).

The Commonwealth took no further action, because its own tracking system

was triggered only upon generation of a “CR Number,” which in turn was

____________________________________________

12
The trial court cites the testimony of Sue Sees, Deputy Court
Administrator, regarding this issue. Trial Court Opinion, 12/15/15, at 7. Ms.
Sees, however, was testifying to any communications with the
Commonwealth regarding scheduling plea hearings. As we have explained,
the Commonwealth’s failure to expedite that hearing is no failure at all,
given our conclusion that all of that time is not included in (A)(2)(a).

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J-A14009-16

created only when papers were forwarded as required by Rule. Bradford

filed a motion to dismiss one day after the Rule 600 time limit expired. The

Commonwealth, then aware of the case, attempted to list the matter for

trial.

On appeal to our Supreme Court, the issue was whether the

Commonwealth exercised due diligence under former Rule 600(G) by relying

upon the magistrate office’s compliance with the rules of criminal procedure.

Bradford determined that the district attorney’s office could validly rely on

the minor judiciary fulfilling its own obligations:

We do not find it unreasonable for the District Attorney to have
relied upon the Magisterial District Judge's compliance with the
Rules of Criminal Procedure to trigger its internal tracking
system. While we might question the Commonwealth's diligence
if it devised its system to be launched upon a district judge's
adherence to a self-designed custom or practice, we conclude
that here the District Attorney's office exercised due diligence
when it relied upon the minor judiciary following the specific,
mandatory Rules of Criminal Procedure, which placed upon the
District Judge the obligation to transmit timely papers to the
common pleas court.

Id. at 704-05 (footnote omitted).

Here, as in Bradford, the duty to schedule a suppression hearing fell

upon the judiciary. Rule of Criminal Procedure 581, Suppression of

Evidence, states that:

(E) A hearing shall be scheduled in accordance with Rule 577
(Procedures Following Filing of Motion). A hearing may be either
prior to or at trial, and shall afford the attorney for the
Commonwealth a reasonable opportunity for investigation. The
judge shall enter such interim order as may be appropriate in

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J-A14009-16

the interests of justice and the expeditious disposition of criminal
cases.

Pa.R.Crim.P. 581. Rule 577, in turn, states that

if the judge determines the motion requires a hearing or
argument, the court or the court administrator shall
schedule the date and time for the hearing or argument.
Pursuant to Rule 114(B)(2), notice of the date and time for the
hearing or argument shall be served by the clerk of courts,
unless the president judge has designated the court or court
administrator to serve these notices.

Pa.R.Crim.P. 577(A)(2) (emphasis added). Additionally, paragraph (B)

states the judge shall promptly dispose of any motion.

We acknowledge that in Commonwealth v. Sloan, 67 A.3d 1249

(Pa.Super. 2013), we concluded that the Commonwealth cannot blindly rely

upon the minor judiciary. Therein, the Commonwealth charged the

defendant via complaint dated July 30, 2008, yet did not file the criminal

information until May 11, 2009. Sloan was then arraigned on June 22,

2009. The next day, the trial court’s arraignment office scheduled a pre-trial

conference for July 31, 2009, which was one day after Rule 600 expired.

The assistant district attorney, recognizing the pending deadline, contacted

the assigned public defender. The parties appeared in court on July 30,

2009, and the judge set trial for August 27, 2009. Id. at 1253.

Sloan moved for dismissal under Rule 600, which the trial court

denied, finding that the Commonwealth was not responsible for the

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J-A14009-16

arraignment office’s failure to take notice of the Rule 600 run date. Id. at

1254. On appeal, we reversed and distinguished the case from Bradford:

In Bradford, the Pennsylvania Supreme Court determined that
“all of the delay in bringing the case to trial” had resulted from
“the District Judge's failure to forward the documents to the
Court of Common Pleas in compliance with Pa.R.Crim.P. 547(B).”
Bradford, 46 A.3d at 702. In the present case, however, the
delay was caused by the Commonwealth failing to file the
Information until May 11, 2009. It is the Commonwealth's
responsibility to file the information after the defendant has been
held for court following a preliminary hearing. Pa.R.Crim.P.
560(A). In this case, that occurred on September 11, 2008, but
the information was not filed until May 11, 2009. Significantly,
the Rules of Criminal Procedure provide that the formal
arraignment and pretrial conference cannot be held until after
the filing of the information. See Pa.R.Crim.P., 570, 571.

Further, in Bradford, the Supreme Court, in determining that
the Commonwealth had exercised due diligence, relied on the
fact that Rule 547(6) of the Rules of Criminal Procedure had a
specific, mandatory requirement for the district judge to timely
transmit the papers to the Common Pleas Court. Bradford, 46
A.3d at 704–05. See Pa.R.Crim.P. 547(6). In contrast, Rule 570,
relating to the pretrial conference, does not contain a similar
time-limited, mandatory requirement. See Pa.R.Crim.P. 570(A).

Unlike Rule 547, relied upon by the trial court in Bradford, Rule
570 contains no specific time limit within which the pretrial
conference must be scheduled. Thus, we conclude that it was not
reasonable for the Commonwealth in this case to rely upon the
arraignment clerk to schedule the pretrial conference properly
within the parameters of Rule 600.

Id. at 1254 (footnote omitted). We find that the instant case is more akin

to Bradford than Sloan. Unlike the Rule at issue in Sloan, the applicable

procedures squarely place the burden of scheduling motions hearings on the

trial court. We do not suggest that the Commonwealth is completely free of

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J-A14009-16

any obligation to monitor a case after filing a response to pre-trial motion.

We hold only that under these circumstances, where the court issued an

order scheduling a hearing a little over a month after the Commonwealth

filed its brief in response to the suppression motion, the Commonwealth is

not to blame for the resultant days. Where a delay in trial is caused by a

response to the pre-trial motions, the Commonwealth must establish it

exercised due diligence in opposing or responding to the motion. Hill,

supra at 587. The Commonwealth diligently responded to pretrial motions

that, by necessity, delayed trial, and validly relied on the court to schedule

the hearing. Following the submission of the briefs, the case was ready to

proceed to hearing and trial pending the court’s scheduling those matters.

We also note that Union County employs only two judges: the trial judge

herein and a senior judge.13 It is unsurprising that the court was unable to

accommodate the parties until May. Therefore, we hold that none of the

time from January 26, 2015, through May 1, 2015, is included in the 365-

day calculation. Accordingly, the number of days included in the (A)(2)(a)

calculation towards the 365-day limit remained at 249 days.

Finally, we turn to the events following May 1, 2015. The trial court

granted the suppression motion and the Commonwealth did not appeal. For

____________________________________________

13
http://www.unioncountypa.org/departments/courts/court-of-common-
pleas/court-of-common-pleas/page.aspx?id=1349

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J-A14009-16

reasons that are not apparent in the record, the trial court did not schedule

a corresponding trial date until after the suppression hearing concluded.

Order, 5/4/15, at 1. This order did not schedule a trial, instead ordering the

parties to appear for a plea. However, on May 28, 2015, Attorney Lemon

requested a continuance, representing that the parties were still negotiating

a plea. Motion, 5/28/15, at ¶ 5. That order was granted, and Appellee then

filed the motion to dismiss, leading to this instant appeal. Consistent with

our analysis of Hill, we hold that any delay in commencing trial was delayed

due to these additional pretrial motions. Hence, we again conclude that

none of the time following May 1, 2015, is included in the (A)(2)(a)

calculation.

Having concluded only 249 days is included in the 365-day calculation,

the trial court erred in dismissing the motion under Rule 600. When the trial

court granted the motion to dismiss on July 16, 2015, the Commonwealth

still had 116 days remaining in which to try Appellee. We therefore reverse

and remand for further proceedings consistent with this memorandum.

Order reversed. Jurisdiction relinquished.

Judge Ott joins the Memorandum.

Judge Platt concurs in the result.

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J-A14009-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2016

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J-A14009-16

APPENDIX

Event Dates Activity # of Included in Number
# days calculation? of days
elapsed
1 10/24/13 Complaints filed - - 0
2 10/24/13- Case progression; 54 Yes 54
12/17/13 preliminary
hearing set for
12/17/13
3 12/17/13- Hearing 28 Yes 82
1/14/14 (postponed per
Commonwealth
request)
4 1/14/14- Hearing 14 No 82
1/28/14 (postponed at
Appellee's
request)
5 1/28/2014 Preliminary - - 82
hearings waived
6 1/28/14- Case progression; 49 Yes 131
3/18/14 criminal
information filed
3/18/14
7 3/18/14- Case progression; 118 Yes 249
7/14/14 guilty plea hearing
set for 7/14/14
8 7/14/14- Guilty plea hearing 62 No 249
9/14/14 (rescheduled for
further plea
negotiations)
9 9/14/14- Guilty plea hearing 85 No 249
12/8/14 (rescheduled due
to difficulties
arranging video
conference)
10 12/8/14- Guilty plea hearing 49 No 249
1/26/15 (Appellee requests
trial and time to
file omnibus
motion)

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J-A14009-16

11 1/26/15 Jury trial - - 249
scheduled
(postponed)
12 1/26/15- Hearing postponed 8 No 249
2/3/15 per (Commonwealth
Commonwealth's at fault, but
request; additional exercised due
time needed to diligence)
reply
13 2/3/15 Commonwealth - - 249
files brief
14 2/3/15- Court takes no 35 No (court delay) 249
3/10/15 action

15 3/10/15- Court issues order 52 No (court 249
5/1/15 on 3/10/15 unavailability)
scheduling hearing
for 5/1/15
16 5/1/2015 Suppression - -
hearing; motion
granted
17 5/1/15- Additional pretrial 76 No (litigation of 249
7/16/15 motions, including pretrial
motion to dismiss motions)

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