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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
NADIM ZUHAIR JAOUNI
Appellant No. 1361 MDA 2016
Appeal from the Judgment of Sentence July 20, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006709-2013
BEFORE: BOWES, J., DUBOW, J., AND FITZGERALD,*J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED OCTOBER 20, 2017
I agree with my learned colleagues that the Commonwealth failed to
prosecute Appellant in the time frame mandated by Pennsylvania Rule of
Criminal Procedure 600. I write separately to address the Commonwealth’s
assertion that the entire period from June 10, 2013, to June 18, 2015 does
not count for Rule 600 purposes.
These charges were initiated on June 10, 2013 and therefore governed
by the former version of Rule 600. We calculate the mechanical run date by
adding one year to the complaint date, and arrive at an adjusted run date by
adding periods of excludable or excusable time. See Commonwealth v.
Ramos, 936 A.2d 1097 (Pa.Super. 2007) (en banc). Appellant concedes
that the fifty-six day period of time owing to his request to postpone the
* Former Justice specially assigned to the Superior Court.
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preliminary hearing was excludable time. I would also hold that the 642-day
period from September 18, 2013, when Appellant first requested admission
to the Alternative Rehabilitation Disposition (ARD) program, through June
18, 2015, was excludable time as Appellant continuously requested delays
up until that date for ARD and medical reasons.1 Adding these delays to the
earlier fifty-six days yields an adjusted run date of May 9, 2016, well before
his actual trial date.
The Commonwealth maintains that “[A]ny and all delays from the filing
of the criminal complaint on June 10, 2013, and June 18, 2015 were
attributable to [Appellant]. This accounts for 739 days.” Commonwealth’s
brief at 16. A similar claim was recently rejected by our High Court in
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017). The dispute in Mills
was whether a 174-day period between the filing of the criminal complaint
and a status conference should be excluded or included for Rule 600
purposes. Mills rejected a bright-line rule that the normal judicial
progression of a case constitutes delay. “[W]e agree with Appellant that
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1 Appellant claims that only 628 days are properly attributed to him, yet
calculates the adjusted run date as falling in 2015. He arrives at this date
by adding 628 days to the date charges were initiated, not the mechanical
run date. See Appellant’s brief at 13. The Majority correctly notes that the
actual adjusted run date was in 2016, as Appellant delayed the proceedings
at his request for almost two years. Since the Commonwealth prevailed at
the trial court level, I will assume the more favorable calculation of May 9,
2016, as it does not affect the outcome.
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time attributable to the normal progression of a case simply is not ‘delay’ for
purposes of Rule 600.” Id. at 325. As Mills stated, the Commonwealth’s
position was equivalent to an argument that it has “leeway to proceed,
without any diligence, to cause up to 365 days of delay in the
commencement of any trial.” Id. at 324. The Commonwealth’s claim here
is similar. By asserting that every day from the date the complaint was
initiated through June 18, 2015 plays no part in our Rule 600 analysis, the
Commonwealth avers that none of the time constituting the normal
progression of a case up until that point counts against it. While it is
undeniable that Appellant caused significant delays, the Commonwealth’s
calculations are untenable.
Moreover, the Commonwealth asserts that the trial judge properly
determined that it exercised due diligence from January 2016 through May
2016 because the toxicologist was unable to testify. Yet the prosecutor
conceded at the Rule 600 hearing that the case “had never been scheduled,
so there was no opportunity to find [a new analyst] . . . because it would
have had to have been scheduled several weeks, if not a month or so in
advance[.]” N.T. Rule 600, 7/12/16, at 8. The trial court adopted that
position: “We agree it couldn’t have been scheduled when the lab tech was
unavailable.” Id. at 7. This was an abuse of discretion. The trial court’s
analysis erroneously applied a form of harmless error by holding that
Appellant’s trial would have been postponed had the Commonwealth
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actually scheduled the case. That type of analysis is improper, since the
Commonwealth bears the burden of establishing it exercised due diligence.
It hardly comports with Rule 600 for the Commonwealth to claim its due
diligence would not have mattered.
Finally, I recognize that the trial court’s ruling emphasized that this
matter was reassigned to several judges, resulting in judicial delay not
attributable to the Commonwealth. Mills was likewise sensitive to this
concern, noting that “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.” Mills, supra at 325.
However, nothing in the record indicates that the Commonwealth was ready
for trial. Herein, the docket and certified record reveals that the order of
June 18, 2015, which indicated that the parties were ready for a bench trial,
is directly followed by Appellant’s July 12, 2016 motion to dismiss.2 Thus, I
agree with the Majority that the Commonwealth failed to establish that it
kept track of its Rule 600 obligations. See Commonwealth v. Browne,
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2 Mills does not answer whether the Commonwealth is obligated to ask an
unavailable trial judge to transfer the case to another courtroom with a less
clogged docket when a Rule 600 deadline is looming. I do not suggest that
the Commonwealth bore that burden in this case, yet it appears that this
case would not have proceeded at all but for Appellant’s motion seeking
dismissal. Certainly, a motion seeking transfer to another courtroom would
be beneficial in circumstances such as these, as our task would have been
greatly aided by record entries made at the times in question.
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584 A.2d 902, 906 (Pa. 1990) (“We hold that due diligence likewise imposes
on the government the duty to employ simple recordkeeping systems in
circumstances such as this.”). We cannot simply assume that the
courtrooms were unavailable for some of these time periods.
In this regard, Justice Wecht, joined by Justices Todd and Donohue,
issued a concurring opinion in Mills explaining his view that the
Commonwealth must first show due diligence before judicial delay is
relevant.
[T]he Majority astutely observes that trial courts have the
discretion to differentiate between the time that passes during
the normal progress of a criminal case and the time that elapses
when the court's calendar simply cannot accommodate a trial by
the relevant date. My concern is that our trial courts too often
make these judgments without first considering the
Commonwealth's due diligence obligation.
Characterization and delineation of the contested time periods is
not always an easy task. Difficulty can arise, as it did in this
case, when both “judicial delay” and the Commonwealth's due
diligence obligation appear as options for the court. However,
these two options are not equal, to be selected at the court's
discretion. Nor can “judicial delay” be substituted for due
diligence. Rather, due diligence must be proven by the
Commonwealth, and assessed by the court, before “judicial
delay” becomes a consideration in the time calculation for Rule
600.
Id. at 326 (Wecht, J., concurring). That issue was present in this case. The
trial court selected judicial delay as an option to excuse the Rule 600
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violation, but the Commonwealth failed to prove its due diligence. 3 Tellingly,
the Commonwealth managed, after over a year of delay, to proceed to trial
just eight days after Appellant filed the motion to dismiss. By all
appearances, the only reason this case proceeded to trial was the fact that
Appellant sought dismissal, with the Commonwealth offering ex post facto
justifications for why the case could not have proceeded at those earlier
times. That hardly constitutes due diligence. Hence, the Commonwealth
failed to meet its burden and the order denying Appellant’s motion must be
reversed.
Judge Dubow joins this concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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3 The trial judge began the hearing by noting, “I get these motions five
minutes before I come on the bench and somehow I am supposed to digest
the calendars for several years and come to some conclusion.” N.T. Rule
600, 7/12/16, at 2. Thus, the trial court’s finding of fact that the other trial
judges were unavailable was supported by speculation, not evidence.
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Com. v. Jaouni, N.
Combined Opinion