J-S03006-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE ALONZO WEEKS :
:
Appellant : No. 1231 MDA 2023
Appeal from the Judgment of Sentence Entered July 12, 2022
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001343-2019
BEFORE: OLSON, J., NICHOLS, J., and BECK, J.
MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 14, 2024
Appellant, Andre Alonzo Weeks, appeals from the judgment of sentence
entered July 12, 2022, after this Court remanded the matter for a hearing
pursuant to Pa.R.Crim.P. 600(D).1 We affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
[Appellant] was charged, by criminal complaint, on June 20,
2019 with count [one]: manufacture, delivery, or possession
with intent to manufacture or deliver; count [two]: drug
delivery resulting in death; and count [three]: involuntary
manslaughter. [Appellant’s] case proceeded to [a] preliminary
hearing on August 5, 2019 and mandatory arraignment on
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1 We note that Appellant purported to appeal from the August 21, 2023 order
denying his Rule 600 motion to dismiss. In a criminal action, however, an
“appeal properly lies from the judgment of sentence made final by the denial
of post-sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408,
410 n.2 (Pa. Super. 2001) (en banc) (citation omitted). Accordingly the
docket has been corrected to reflect that Appellant’s appeal lies from the July
12, 2022 judgment of sentence.
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August 21, 2019. The case was continued numerous times,
several of note, on occasion of the [COVID]-19 pandemic. In
October of 2020, the case was listed for trial from February
18[th through] 23[rd], 2021.
On January 25, 2021, an Amended Emergency Judicial Order
was issued by th[e trial] court extending the postponement of
all criminal jury trials until March 8, 2021, which canceled
[Appellant’s] trial. [Appellant] filed his first [motion pursuant
to Pa.R.Crim.P. 600] on January 28, 2021. [He] then amended
this motion on February 4, 2021. On February 10, 2021, the
Commonwealth filed a request to hold a status conference [to
discuss potential trial dates]. On February 15, 2021, a status
conference was held where the Commonwealth asked for the
next dates available to try [Appellant]. Given the [trial court’s
COVID-19] measures and the construction of the new Franklin
County Courthouse, the earliest dates available for trial were
November 18[th through] 23[rd], 2021.
A hearing was held on [Appellant’s] first Rule 600 motion on
March 1, 2021. An order was issued denying [Appellant’s]
motion on March 22, 2021. [Appellant] filed his second Rule
600 motion on October 18, 2021. The Commonwealth filed an
answer to [Appellant’s] motion on October 27, 2021. [The trial
court, however, did not address Appellant’s motion via a
hearing or otherwise. The matter proceeded to a jury trial] on
November 18, 2021 through November 23, 2021[. Appellant
was found guilty of all charges.2]
The [trial court] sentenced [Appellant] on January 12, 2022 to
serve an aggregate term of incarceration of 15 to 30 years.
[Appellant] filed a timely post-sentence motion, which the [trial
court] denied on July 16, 2022. [See Pa.R.Crim.P.
720(B)(3)(b) (allowing the trial court to grant one 30-day
extension for decision on a defendant’s post-sentence motion
upon motion by the defendant and good cause shown).
Appellant] filed [a] timely notice of appeal on July 13, 2022. …
[Ultimately, this Court] remanded the matter back to [the trial
court] for the sole purpose of conducting a hearing pursuant to
Pa.R.Crim.P. 600(D) to determine whether [Appellant’s right to
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2 On Appellant’s previous appeal, this Court set forth the circumstances of his
convictions at length. See Commonwealth v. Weeks, 2023 WL 3884606,
*1 (Pa. Super. 2023).
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a prompt trial was violated. See Weeks, 2023 WL 3884606 at
*1. In particular, we instructed the trial court “to consider
whether the Commonwealth established the necessary due
diligence as intended under Rule 600(C)(1)” and to either grant
or dismiss Appellant’s Rule 600 motion based upon this
determination. Id. at *6. We otherwise affirmed Appellant’s
judgment of sentence in all other respects. Id. at *1].
On June 12, 2023, the [trial court] issued an order scheduling
a hearing pursuant to Pa.R.Crim.P. 600(D). A hearing was held
on July 25, 2023. At the hearing, the Commonwealth was
unprepared to present evidence in accordance with [this
Court’s] ruling and asked for a continuance. Against
[Appellant’s] objection, the [trial court] granted the
Commonwealth’s request and a new hearing was scheduled for
August 3, 2023. On August 21, 2023, the [trial court] issued
an opinion denying [Appellant’s] motion for Rule 600 relief.
[Appellant] timely filed this present appeal on August 28, 2023.
Trial Court Opinion, 10/20/23, at 1-3 (unnecessary capitalization omitted)
(footnote added).
Appellant raises the following issue on appeal:
Did the Commonwealth []meet its burden to show due
diligence[] by not making any effort whatsoever to assure that
[Appellant] was tried on the charges related to this case[] until
115 days after the previously set, court determined, adjusted
run date (as to Rule 600) of July 26, 2021?
Appellant’s Brief at 3.
On appeal, Appellant challenges the trial court’s disposition of his Rule
600 motion to dismiss. Appellant contends that the trial court erred in
determining that the Commonwealth exercised due diligence over the life of
the case and, in turn, in concluding that Appellant’s right to a speedy trial was
not violated even though his trial did not commence until November 18, 2021.
We disagree.
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Our review of this issue is governed by the following standard:
In evaluating [Pa.R.Crim.P.] 600 issues, our standard of review
of a trial court's decision is whether the trial court abused its
discretion. Furthermore:
The proper scope of review [ ... ] is limited to the evidence
of record of the [Pa.R.Crim.P.] 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 [Pa.R.Crim.P.] 600. [Pennsylvania Rule of
Criminal Procedure] 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 [Pa.R.Crim.P.]
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, [Pa.R.Crim.P.] 600 must be construed
in a manner consistent with society's right to punish and deter
crime.
Commonwealth v. Martz, 926 A.2d 514, 517 (Pa. Super. 2007) (citation
omitted).
Rule 600 provides, in relevant part:
(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.
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(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.
***
(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.
***
(D) Remedies
(1) When a defendant has not been brought to trial within
the time periods set forth in paragraph (A), at any time
before trial, the defendant's attorney, or the defendant if
unrepresented, may file a written motion requesting that
the charges be dismissed with prejudice on the ground that
this rule has been violated. A copy of the motion shall be
served on the attorney for the Commonwealth concurrently
with filing. The judge shall conduct a hearing on the
motion.
Pa.R.Crim.P. 600.
This Court has explained
the courts of this Commonwealth employ three steps in
determining whether Rule 600 requires dismissal of charges
against a defendant. First, Rule 600(A) provides the mechanical
run date. Second, we determine whether any excludable time
exists pursuant to Rule 600(C). We add the amount of
excludable time, if any, to the mechanical run date to arrive at
an adjusted run date.
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Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018) (cleaned
up) (citation and emphasis omitted).
Herein, the mechanical run date was June 20, 2020. See Weeks, 2023
WL 3884606 at *4. We must, however, “account for any ‘excludable time’
and ‘excusable delay’” to derive an adjusted run date. Commonwealth v.
Colon, 87 A.3d 352, 358 (Pa. Super. 2014) (citation omitted). “Excludable
time is delay that is attributable to the defendant or his counsel.” Id. (citation
omitted). Excusable delay, on the other hand, “is delay that occurs as a result
of circumstances beyond the Commonwealth's control and despite its due
diligence.” Id. (citation omitted). “When the defendant or the defense [was]
instrumental in causing the delay, the period of delay will be excluded from
computation of time.” See Pa.R.Crim.P 600, Cmt.
“[P]eriods of judicial delay [constitute excusable delay and, therefore,]
are excludable from calculations under [Rule 600].” Commonwealth v.
Mills, 162 A.3d 323, 325 (Pa. 2017). Indeed, “where a trial-ready prosecutor
must wait several months due to a court calendar, the time should be treated
as ‘delay’ for which the Commonwealth is not accountable.” Id. Importantly,
however, “‘before a trial court excludes time from its Rule 600 [] computation
on the basis of ‘judicial delay,’ the Commonwealth must ‘demonstrate that it
acted with due diligence.’” Commonwealth v. Lear, 290 A.3d 709, 719 (Pa.
Super. 2023) (citation omitted). Thus,
in ruling on a defendant's Rule 600 motion to dismiss, a trial
court must first determine whether the Commonwealth has met
its obligation to act with due diligence throughout the life of the
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case; if the Commonwealth meets its burden of proving due
diligence, only then may the trial court rely upon its own
congested calendar or other scheduling problems as
justification for denying the defendant's motion.
Id. (citation omitted).
“Due 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.
Selenski, 994 A.2d 1083, 1089 (Pa. 2010). “[T]he Commonwealth must do
everything reasonable within its power to guarantee that a trial begins on
time,” Colon, 87 A.3d at 359 (citation omitted), and it bears the burden of
proving by a preponderance of the evidence that it exercised due diligence.
Commonwealth v. Plowden, 157 A.3d 933, 941 (Pa. Super. 2017) (en
banc) (citation omitted); see also Commonwealth v. Ramos, 936 A.2d
1097, 1102 (Pa. Super. 2007) (holding due diligence “includes, among other
things, listing a case for trial prior to the run date, preparedness of trial within
the run date, and keeping adequate records to ensure compliance with Rule
600”).
A review of the certified record in this case reveals that, in contrast to
Appellant’s current claims on appeal, Appellant made multiple continuance
requests and, as such, the periods from July 2, 2019 through August 5, 2019
and October 21, 2019 through March 9, 2020, a total of 174 days, are
attributable to Appellant and constitute excludable time. In addition, our
Supreme Court, as well as the Franklin County Court of Common Pleas,
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executed multiple judicial emergency orders starting on March 16, 2020 and
continuing through March 8, 2021, delaying all trials due to COVID-19. We
note, however, that the trial court in its previous Rule 1925(a) opinion stated
that, during this time, jury trials were, in fact, conducted for a total of 111
days. Trial Court Opinion, 8/25/22, at 20. Hence, a total of 246 days are
excludable based on the aforementioned judicial emergency orders. Adding
the 174 excludable days attributable to Appellant and the 246 excludable days
attributable to the judicial emergency orders, results in 420 total excludable
days and an adjusted run date of August 14, 2021.3
Appellant’s trial, however, did not commence until November 18, 2021,
a total of 96 days after the August 14, 2021 adjusted run date. On Appellant’s
previous appeal, the trial court found “167 additional days of delay attributable
to [Appellant]” but failed to hold a hearing to determine whether the
“Commonwealth exercised due diligence” during that time. Weeks, 2023 WL
3884606 at *5-*6. This Court therefore remanded the matter to the trial
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3 We acknowledge that these allocations for excludable days due to Appellant
or emergency judicial orders differ from those previously determined by the
trial court and later affirmed by this Court. See Weeks, 2023 WL 3884606
at *4. In particular, this Court in Weeks affirmed the trial court’s finding that
“171 days were excludable due to [Appellant’s] continuance requests, and 231
days were excludable based on judicial emergency orders for a total of 402
excludable days.” Id. The Weeks Court then affirmed the trial court’s
determination that July 26, 2021 constituted the adjusted run date. Id. Upon
further review, we note that the trial court’s periods of excludable time were
correct, but a small mathematical error occurred effecting its final
determination. Thus, this limited error did not truly affect its ultimate Rule
600 determination.
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court with instructions to conduct a hearing pursuant to Pa.R.Crim.P. 600(D)
to make such a determination.
On August 3, 2023, the trial court held a Rule 600(D) hearing as
instructed. At the hearing, Chief Deputy District Attorney Jonathan Faust
testified. Initially, Attorney Faust explained that the criminal complaint in this
matter was filed on June 20, 2019. Appellant’s preliminary hearing was held
on August 5, 2019, following Appellant’s request for a continuance, and his
mandatory arraignment occurred on August 21, 2019. Thereafter, Appellant
was placed on the “October [2019] Call-of-the-List,” all discovery was
provided to the defense, and the Commonwealth was ready to proceed to trial.
N.T. Hearing, 8/3/23, at 12. Appellant’s counsel, however, requested a
continuance during the October 2019 trial term and then again during the
January 2020 trial term. As such, Appellant’s case was “listed for the March
trial term in 2020” but, due to a series of administrative orders, all trials,
including Appellant’s, were placed on hold from March 2020 through October
2020. Id. at 13-14. The parties ultimately proceeded to a pre-trial conference
on October 12, 2020, during which “both parties certified to the [c]ourt that
[they] were ready for trial” and that “all discovery was given over,” resulting
in Appellant’s trial being set to take place from February 18, 2021 through
February 23, 2021. Id. at 16.
On November 28, 2020, and then again on January 25, 2021, however,
the President Judge of Franklin County Court of Common Pleas entered
administrative orders further suspending all criminal trials until the spring of
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2021, causing Appellant’s trial to be continued again and Appellant’s pretrial
conference to be set for May 2021. Attorney Faust, being ready to proceed to
trial, “did [not] want to wait until May [2021] to get [Appellant] relisted for
trial.” Id. at 18. As such, Attorney Faust “filed for a status conference to get
th[e] case moved up so [the parties] could get a sooner trial date than waiting
until May.” Id. A status conference was conducted on February 15, 2021,
during which the parties, “once again, certified that [they] were ready for trial
to take place.” Id. at 19. The trial court, however, “reviewed its calendar
and determined that the earliest it could schedule a consecutive one[-]week
homicide trial with the information known to it at that time was[] November
1[8]-23, 2021.” Trial Court Opinion, 8/21/23, at 3. This was because
“Franklin County Court of Common Pleas [was] dealing with the challenges of
conducting trials under [COVID] protocols” as well as “the entire court facility
[] undergoing new construction and renovation that resulted in the loss of
available courtrooms.” Id. Appellant’s trial commenced according to schedule
on November 18, 2021.
Herein, the trial court determined that the aforementioned testimony
confirmed that the Commonwealth exercised due diligence during the life of
the case. Id. at 8. In addition, the trial court concluded that the delay from
the February 15, 2021 status conference until Appellant’s trial constituted
judicial delay because the court “simply had no ability” to conduct Appellant’s
trial prior to November 18, 2021 in light of the COVID protocols in place, as
well as the “limited resources for trial spaces being used by the entire board
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of judges and the lack of availability of the new judicial center until early
October[] 2021.” Id. at 7-8. Based upon the foregoing, the trial court
dismissed Appellant’s Rule 600 motion to dismiss.
Upon review, we discern no abuse of discretion on the part of the trial
court. The testimony elicited during the August 3, 2023 hearing demonstrated
that the Commonwealth exercised due diligence in this matter. Attorney Faust
testified that, at all relevant times, the Commonwealth was prepared to
proceed to trial. In addition, Attorney Faust stated that the Commonwealth
consistently listed Appellant’s case for trial. Finally, Attorney Faust specifically
stated the additional judicial emergency orders issued by the President Judge
of Franklin County Common Pleas in November 2020 and January 2021 further
delayed Appellant’s trial scheduled for February 2021. To avoid this further
delay, Attorney Faust “ask[ed] the trial court to review its calendar [and] the
available jury trial courts spaces and set new trial dates.” Id. at 7. Hence, in
contrast to Appellant’s claims, the Commonwealth did “everything reasonable
within its power to guarantee that [Appellant’s] trial [began] on time.” Colon,
87 A.3d at 359 (citation omitted). The trial court, however, was unable to
accommodate Appellant’s trial prior to November 18, 2021, despite the
Commonwealth’s attempt to schedule Appellant’s trial at an earlier date. Trial
Court Opinion, 8/21/23, at 7. Thus, we conclude that the period from, at
least, March 8, 2021, until Appellant’s trial, November 18, 2021, a total of 255
days, constitutes excludable time under Rule 600. This calculation extends
the final run date to (at the earliest) April 26, 2022 – nearly five months after
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Appellant’s trial commenced. Hence, the trial court properly denied
Appellant’s Rule 600 motion.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 2/14/2024
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