Com. v. Ungard, T.

J-A16034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

THOMAS H. UNGARD JR. :

:

Appellant : No. 1394 MDA 2020

Appeal from the Judgment of Sentence Entered October 12, 2011

In the Court of Common Pleas of Lycoming County Criminal Division at

No(s): CP-41-CR-0001398-2007

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: OCTOBER 4, 2021

Appellant, Thomas H. Ungard, Jr., appeals from the judgment of

sentence entered in the Court of Common Pleas of Lycoming County on two

counts of Tampering with Public Records. Herein, Appellant contends the

court erroneously denied his motion to dismiss all charges for what he argues

was the Commonwealth’s impermissible failure to meet the prompt trial

requirements of Pennsylvania Rule of Criminal Procedure 600. After careful

review, we affirm.

The relevant facts and procedural history of this appeal are as follows.

Appellant served as coordinator for the Lycoming County Drug

Task Force (“Task Force”), which frequently obtained vehicles

through criminal and/or civil forfeiture. In July 2006, the District

Attorney learned that Appellant and the Williamsport police chief

went on a personal trip to Canada in a forfeited vehicle. When

confronted, Appellant paid restitution to the Task Force in an

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-A16034-21

amount equal to the fair market rental value of the vehicle. The

Lycoming County District Attorney removed Appellant as

coordinator of the Task Force and referred the case to the Attorney

General of Pennsylvania for possible prosecution.

The Attorney General's investigation revealed that, on two

occasions, Appellant engaged in simulated sales fn1 of two forfeited

vehicles. Appellant and Adrian Heffley (“Heffley”) completed MV-

4ST forms which made it appear as though the forfeited vehicles

were transferred initially to Heffley and, thereafter, to members

of Appellant's family.fn2 During the investigation, Appellant asked

or encouraged Heffley to lie to investigators by stating that he

bought the vehicles, performed maintenance thereon, and then

resold the vehicles to Appellant's family members listed on the

MV-4ST forms.

fn1 See Black's Law Dictionary, 1366 (8th Ed. 1990) (“A

sale in which no price or other consideration is paid or

intended to be paid, and in which there is no intent to

actually transfer ownership.”).

Appellant knew Heffley was a mechanic at a garage

fn2

where Appellant had repair work performed.

On September 25, 2007, the Commonwealth charged Appellant

via criminal information with five counts of tampering with public

records or information (“tampering”),fn3 four counts of theft by

failure to make required disposition of funds (“theft”),fn4

conspiracy to commit tampering,fn5 obstructing the administration

of law or other governmental function (“obstruction”),fn6 and

conflict of interest.fn7

The trial court dismissed four counts of tampering and one count

of theft for failure to make a prima facie showing that Appellant

committed those offenses. The trial court also denied the

Commonwealth leave to amend the criminal information and

suppressed certain evidence.

Later, the Commonwealth [filed an interlocutory appeal by right,

asserting the trial court’s order substantially impaired its ability to

prosecute]. This Court reversed the dismissal of the tampering

and theft charges, reversed the decision barring the

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Commonwealth from filing an amended criminal information,

affirmed the suppression ruling, and remanded for further

proceedings. See Commonwealth v. Ungard, 15 A.3d 540 (Pa.

Super. 2010) (unpublished memorandum).

fn3 18 Pa.C.S.A. § 4911(a)(1), (a)(3).

fn4 18 Pa.C.S.A. § 3927(a).

fn5 18 Pa.C.S.A. §§ 903, 4911.

fn6 18 Pa.C.S.A. § 5101.

fn7 18 Pa.C.S.A. § 1103(a).

On remand, Appellant waived his right to counsel and [elected to

represent] himself at trial. [On December 7, 2010, Appellant filed

a pretrial Motion to Dismiss pursuant to Pa.R.Crim.P. 600. The

trial court held a hearing on this motion on April 29, 2011, and it

denied the motion by Opinion and Order docketed on June 3,

2011].

On July 22, 2011, a jury convicted Appellant of two counts of

tampering and obstruction. Appellant requested the assistance of

counsel during post-trial proceedings, including direct appeal. The

trial court denied that request and, on October 12, 2011,

sentenced Appellant to an aggregate term of 18 months'

probation. This Court affirmed the judgment of sentence and our

Supreme Court denied allowance of appeal. Commonwealth v.

Ungard, 68 A.3d 367, 2013 WL 11279623 (Pa. Super. 2013)

(unpublished memorandum), appeal denied, 77 A.3d 1260 (Pa.

2013). Appellant did not begin serving his probationary term after

our Supreme Court denied allowance of appeal but the record does

not explain the reason for this delay.

On August 8, 2014, Appellant filed a pro se PCRA petition. The

PCRA court appointed counsel who filed an amended petition.

Thereafter, the PCRA court granted in part and denied in part

Appellant's PCRA petition. It reinstated Appellant's direct

appellate rights, together with his right to file a post-sentence

motion, nunc pro tunc. It denied relief on Appellant's remaining

claims. On February 9, 2017, Appellant filed a post-sentence

motion. On July 6, 2017, the trial court denied that motion.

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[Appellant filed a direct appeal, and this Court reversed judgment

of sentence as it pertained to Appellant’s conviction on the charge

of obstruction, which under the Crimes Code requires evidence of

obstructing in the prosecution of “another” rather than in one’s

own prosecution. In all other respects, the court affirmed

judgment of sentence and relinquished jurisdiction.

Commonwealth v. Ungard, No. 1209 MDA 2017, 2019 WL 1057350, at **1–

6 (Pa. Super. Ct. Mar. 6, 2019) (unpublished memorandum).

Appellant’s judgment of sentence became final on April 5, 2019, when

thirty days expired without his filing a petition for allowance of appeal with the

Pennsylvania Supreme Court pursuant to Pa.R.A.P. 1113(a). See 42 Pa.C.S.

§ 9545(b)(3). He timely filed his first PCRA petition on November 8, 2019,

and asserted that the trial court had denied him his right to counsel when it

precluded him from relitigating with the assistance of counsel any issues that

Appellant had previously litigated in his pro se post sentence motion. Among

those issues was a challenge to the trial court’s dismissal of his pro se Rule

600 motion.1 After conducting a hearing on the matter, the PCRA court

reinstated Appellant’s post-sentence motion rights and his direct appeal rights

nunc pro tunc.

On April 6, 2020, Appellant filed a post sentence motion nunc pro tunc

asserting the trial court had erred in entering its 2011 Order denying his Rule

600 motion to dismiss all charges. In both Appellant’s post sentence motion

____________________________________________

1 Unless indicated otherwise, our references to Pa.R.Crim.P. 600 relate to the

version of the law that was rescinded effective July 1, 2013.

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and his subsequent brief submitted after a hearing on the matter, he set forth

what he contended was a timeline relevant to the Rule 600 issue, as follows:

Complaint Filed: June 12, 2007

Mechanical 600 Run Date: June 12, 2008

[Appellant’s] Pretrial Motions Filed: Nov. 1, 2007

Hearing on [Appellant’s] Pretrial Motions: April 16, 2008

[Appellant’s] Pretrial Motions Decided: Oct. 16, 2008

CW[2] Notice of Interlocutory Appeal Filed: Oct. 27, 2008

Date Transcript of Hearing on [Appellant’s]

Pretrial Motions Available to CW: Nov. 1, 2008[]

Transcript Paid-For by CW: Jan. 26, 2009[]

Date Transcript Filed: Feb. 2, 2009

Date Court filed Pa.R.A.P. 1925(a) Opinion: April 7, 2009

Date Prothonotary Transmitted Record to

Appellate Court: Oct. 2, 2009

CW First Request for Extension to File Brief: Nov. 6, 2009

CW Second Request for Extension to File Brief: Nov. 25, 2009

CW Request to Continue Oral Argument: April 6, 2010

CW Second Request to Continue

Oral Argument: May 10, 2010

CW Interlocutory Appeal Decided: Oct. 25, 2010

[Appellant’s] Pa.R.Crim.P. 600 Motion Filed: Dec. 7, 2010

____________________________________________

2 “CW” refers to the Commonwealth.

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[Appellant’s] Pa.R.Crim.P. 600 Hearing: April 29, 2011

[Appellant’s] Pa.R.Crim.P. 600 Decision: July 18, 2011

Post Sentence Motion nunc pro tunc, 4/6/2020, at 2-3; Post-Hearing Brief at

7.

Appellant argued that the trial court had improperly denied his Rule 600

motion on the erroneous belief that the Commonwealth was relieved of its

obligation to exercise due diligence in bringing its case to trial during the two-

year period the Commonwealth pursued an interlocutory appeal. “Excusable

delay,” Appellant maintained, “is delay that occurs as a result of circumstances

beyond the Commonwealth’s control and despite its due diligence.” Post

Sentence Motion, at 5 (citing Commonwealth v. Goldman, 70 A.3d. 874,

880 (Pa.Super. 2013)) (emphasis added in motion). Therefore, Appellant

asserted that “whether or not a period of delay in bringing [Appellant] to trial

constitutes “excusable delay” . . . requires an analysis of the Commonwealth’s

due diligence. Id.

According to Appellant’s 2020 post-sentence motion, the transcript of

the April 29, 2011, hearing on his Rule 600 motion showed that the

Commonwealth presented only certified copies of the items listed on the

docket sheet associated with the Commonwealth’s interlocutory appeal. The

unsworn representations of the Deputy Attorney General (“DAG”) at the Rule

600 hearing regarding such items did not constitute testimony and were not

evidence, Appellant posited in his motion, and he insisted the lack of live

witnesses or sworn affidavits of such witnesses, transcripts, or file notes

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should have been deemed fatal to the Commonwealth’s requisite

demonstration of due diligence.

Appellant’s motion also maintained that at the Rule 600 hearing, the

Commonwealth not only failed to show it acted with due diligence during all

phases of the litigation—including its interlocutory appeal—but also expressed

the mistaken belief, through the opinion offered by the DAG, that due diligence

became irrelevant once the interlocutory appeal had been filed with this Court.

N.T. 4/29/11 at 115. By the court’s apparent acceptance of this flawed

position, Appellant asserted, it committed reversible error on the Rule 600

issue.

At the July 22, 2020, hearing on Appellant’s post-sentence motion nunc

pro tunc, the Commonwealth acknowledged that it was required to exercise

due diligence during all pretrial phases of the case, but it argued that it met

these requirements notwithstanding the DAG’s statements at the 2011 Rule

600 hearing. N.T., 7/22/2020, at 27.

Appellant contested this position, arguing that both the

Commonwealth’s three-month delay in securing available transcripts

necessary to complete the appellate record and forwarding them to the

Lycoming County Clerk of Courts for transmission to the Superior Court, and

the Clerk of Court’s subsequent six-month delay in transmitting the record to

this Court without the Commonwealth ever seeking a status update on its

stalled interlocutory appeal, should be added to the Rule 600 computation of

time.

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Appellant also claimed that the Commonwealth’s multiple motions to

this Court during the interlocutory appeal seeking continuances of oral

argument and extensions of the briefing schedule caused further delay that

was neither beyond its control nor despite its due diligence, such that this time

also should be added to the Rule 600 computation. In response, the

Commonwealth maintained that the orders granting continuances over the

objections of Appellant reflected this Court’s determination that the requests

therein were necessary despite diligent efforts to comply with the original

appeals schedule.

By the lower court’s Order and Opinion of October 22, 2020, it rejected

Appellant’s post-sentence motion nunc pro tunc. Specifically, the court

determined that the time taken by the trial court to decide Appellant’s pretrial

motion and by the Superior Court to dispose of the Commonwealth’s

interlocutory appeal, was neither within the control of the Commonwealth nor

extended by the Commonwealth’s lack of due diligence to such a degree as to

bring the Rule 600 computation above 365 days prior to trial.

The court offered the following opinion in support of its calculations:

There were two major events that occurred in this case prior to

Appellant filing his motion to dismiss: the litigation of Appellant’s

omnibus pretrial motion and the Commonwealth’s appeal of the

rulings on Appellant’s omnibus pretrial motion. Appellant

contends that none of the time associated with these events

constitutes excludable or excusable time. The court cannot agree.

A. [Appellant’s] Omnibus Pretrial Motion

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On September 18, 2007, the Lycoming County judges recused

themselves from handling this case. Appellant filed an omnibus

pre-trial motion on November [1], 2007. The Administrative

Office of Pennsylvania Courts (AOPC) assigned Senior Judge

John Reilly to preside over this case. On February 22, 2008,

Judge Reilly held a status conference and issued an order

scheduling the evidentiary hearing on Appellant’s omnibus

pretrial motion for April 16, 2008. The order indicated that

Judge Reilly would set a briefing schedule at the conclusion of

the hearing. Commonwealth’s Exhibit PT-2 (Order dated

2/22/08 and filed 2/29/08).

The hearing and argument on Appellant’s motion was held on

April 16, 2008, as scheduled. At the hearing, the

Commonwealth introduced seven exhibits, marked

Commonwealth’s Exhibit PT-1 through PT-7. Appellant

introduced testimony from Agent Anthony Fiore and the

Lycoming County Prothonotary and Clerk of Courts, William

Burd. Appellant also introduced numerous exhibits, marked .

. . 1 through 14. After the hearing, Judge Reilly entered an

order setting a briefing schedule. Defense counsel’s brief was

due 90 days from the receipt of the transcript and the

Commonwealth’s reply brief was due 10 days thereafter. See

Commonwealth’s Exhibit PT-3 (Order dated 4/16/08 and filed

on 4/30/08).

On July 11, 2008, Judge Reilly entered an order scheduling jury

selection for November 3, 2008 with trial to commence

immediately thereafter. Commonwealth’s Exhibit PT-4 (Order

dated 7/11/08 and 7/14/08).

Appellant filed his brief on August 4, 2008, and the

Commonwealth filed its reply brief on August 7, 2008.

On August 25, 2008, the Lycoming County Court Administrator

scheduled this case for a pretrial conference on October 16,

2008. Commonwealth’s Exhibit PT-5. Judge Reilly announced

his decision on Appellant’s motion on the record on October 16,

2008.

Between the filing of the complaint and the filing of

Appellant’s omnibus pre-trial motion, 142 days elapsed.

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The court finds that the 350 days between the filing of

Appellant’s pre-trial motion on November 1, 2007 and

October 16, 2008, the date Judge Reilly rendered his

decision thereon, is excludable time.

The evidence presented and the reasonable inferences

deducible from the evidence show that Judge Reilly did not

schedule this case for trial on or before June 11, 2008, due to

Appellant’s omnibus pretrial motion. If it were not for

Appellant’s motion, Judge Reilly could have entered an order

at or after the status conference in February 2008 scheduling

this case for trial. Although Judge Reilly entered an order in

July, which scheduled jury selection and trial for November 3,

2008, that trial date was after the time allotted to the parties

for filing their briefs and a reasonable period of time for Judge

Reilly to issue his decision.

Appellant’s omnibus pre-trial motion included a request that

several of the charges be dismissed, which Judge Reilly

granted. Clearly, Appellant did not wish to proceed to trial on

these charges since he believed the Commonwealth did not

present sufficient evidence to establish a prima facie case. Any

assertion that this case could have proceeded to trial prior to a

ruling on Appellants motion is disingenuous. This is not a case

where Judge Reilly deferred hearing the pretrial motions until

the time of trial. Furthermore, the trial did not commence on

November 3, 2008, because the Commonwealth filed an appeal

from Judge Reilly’s rulings on Appellant’s omnibus pretrial

motion. Therefore, the filing of the pre-trial motion caused a

delay in the commencement of trial.

The transcripts, orders and other documents filed of record also

show that the Commonwealth exercised due diligence in

opposing or responding to the motion. Neither party

requested any continuances of the pretrial motion. Both

parties appeared on April 16, 2008, and Judge Reilly heard the

pre-trial motions. The Order entered on April 16, 2008

required the Commonwealth to file its reply brief ten days after

Appellant filed his brief. The Commonwealth, however, filed its

brief within three days. When the parties appeared before

Judge Reilly in October 2008, he made his rulings on

Appellant’s omnibus pre-trial motion. Since the filing of

Appellant’s omnibus pre-trial motion delayed

commencement of trial and the Commonwealth

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exercised due diligence in opposing or responding to the

motion, this time is excludable under Rule 600(C).

Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999).

Another 11 days elapsed between Judge Reilly’s ruling

[on Appellant’s pretrial motion] and the

Commonwealth’s appeal. Therefore, a total of 153 days

passed for Rule 600 purposes prior to the

Commonwealth filing its [interlocutory] appeal. Since

this total is less than 365 days, Appellant was not entitled to

dismissal prior to the Commonwealth’s appeal.

B. The Commonwealth’s Appeal

Appellant asserts that the Commonwealth failed to satisfy its

burden of proof to establish that it acted with due diligence

throughout his case, including the Commonwealth’s appeal.

Additionally, Appellant appears to contend that the court can

review the appellate proceedings and find that the

Commonwealth did not exercise due diligence, particularly

where the Commonwealth requested extensions of the briefing

schedule and continuances of the argument, despite the fact

that the Pennsylvania Superior Court granted these requests.

There is case law that the Commonwealth must exercise due

diligence throughout the proceedings. To date, however, the

due diligence inquiries with respect to an appeal by the

Commonwealth seem to have focused on whether the

Commonwealth has properly certified that the order appealed

will terminate or substantially handicap the prosecution or

whether the Commonwealth took the appeal in bad faith.

[citing decisions, including] Commonwealth v. Risoldi, [238

A.3d 434 (Pa.Super. 2020) (Commonwealth need not be

successful in interlocutory appeal to establish due diligence;

there was no indication in the record that the Commonwealth

took the appeal in bad faith or as a means to delay trial). The

[trial] court has not found any cases where there was an

evaluation of every aspect of the appellate process, including

but not limited to the Commonwealth’s requests for extensions

or continuances, or the appellate court’s decisions thereon.

[The trial court notes the Commonwealth certified that Judge

Reilly’s order terminated or substantially handicapped the

prosecution, the interlocutory appeal was the only opportunity

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the Commonwealth had to challenge Judge Reilly’s order

granting habeas relief and other pretrial rulings, and the

Commonwealth generally prevailed on its issues, as the

Superior Court reversed the trial court’s habeas ruling as well

as some of the pretrial evidentiary rulings.]

The Commonwealth’s timely appeal divested the [trial court of

jurisdiction pursuant to Pa.R.A.P. 1701(a) and automatically

tolled the running of Rule 600 until the time of decision and

remand back to the trial court. This time is thus excusable

delay.] Commonwealth v. DeBlase, 665 A.2d 427, 431-32

(Pa. 1995) .

...

Appellant argues that the Commonwealth had an obligation of

due diligence throughout the pendency of the appeal in this

case and, since the Commonwealth was not diligent, the time

attributable to the Commonwealth’s interlocutory appeal is not

excusable.

Appellant seeks to hold the Commonwealth responsible

for delays in the preparation of the transcript of the

October 16, 2008 hearing, the clerk of court’s failure to

send the record to the appellate court in a timely

manner, and various extensions of the briefing schedule

and continuances of oral argument in the appellate

court.

...

Even assuming that [the trial court] has the authority to

review the entire appellate process, including the Superior

Court’s decisions to grant the Commonwealth’s requests for

briefing extensions and continuances of the argument, the

court rejects Appellant’s claim that he is entitled to dismissal.

...

On October 27, 2008, the Commonwealth filed its notice of

appeal . . . [and] also requested a transcript of the proceedings

held on October 16, 2008.

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The court reporter completed the transcript on or about

November 19, 2008, and sent the prosecutor an invoice for

payment. When no payment was received, she again

contacted the prosecutor. The court reporter received payment

from the prosecutor on or about January 26, 2009. The court

reporter filed the transcript on February 2, 2009. Defendant’s

Exhibit 3.

The time from October 27, 2008 to November 19, 2008

(23 days) was not due to a lack of due diligence by the

Commonwealth; it was due to the court reporter

preparing the transcript. This delay occurred despite the

Commonwealth’s due diligence in filing its appeal and

requesting the transcript and was beyond the Commonwealth’s

control. Therefore it is excusable delay.

The delay from November [20], 2008 to January 26,

2009 (68 days) was due to the Commonwealth’s failure

to pay for the transcript. As this delay was attributable

to the Commonwealth’s lack of due diligence, it is

includable time.

The time from January 2[7], 2009, to February 2, 2009

(7 days) was attributable to the court reporter’s failure

to file the transcript upon receipt of payment from the

Commonwealth. This is excusable delay.

Judge Reilly filed his opinion on April 7, 2009. The

Commonwealth had no control over when Judge Reilly

filed his opinion. This time between February 2, 2009

and April 7, 2009 (64 days) is excusable delay.

Although the transcript and Judge Reilly’s opinion were

filed [with the clerk of courts] by April 7, 2009, the clerk

of courts did not send the record to the Superior Court

until October 2, 2009.

Despite the fact it was the Commonwealth’s burden of proof to

establish by a preponderance of the evidence that it acted with

due diligence, Appellant presented testimony and exhibits at

the Rule 600 hearing. In his zealous efforts to prove that the

Commonwealth did not exercise due diligence, Appellant

inadvertently introduced evidence helpful to the

Commonwealth, including the testimony of [Clerk of Courts]

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William Burd and numerous exhibits that showed the reasons

for the delays during the appeal.

Appellant called William Burd, the Lycoming County

Clerk of Courts as a witness at the Rule 600 hearing. Mr.

Burd testified that he would not send the record to the

appellate court until someone from the court directed him to

do so [(emphasis in original)]. N.T., 4/29/2011, at 97-98, 101-

102. The delay from April 7, 2009 to October 2, 2009

(172 days) is excusable delay that occurred due to a

breakdown in the court’s operations.

Defendant argued that if the Commonwealth had been tracking

the appeal and contacted Mr. Burd, he would have sent the

record sooner. This argument is belied by Mr. Burd’s

testimony. Furthermore, it is not the Commonwealth’s

obligation to ensure that the record is sent to the appellant

[sic] court; it is the court’s duty. Pa.R.A.P. 1931(b). The

Commonwealth is permitted to rely on the court’s compliance

with the Rules. Commonwealth v. Bradford, [ ] 46 A.3d 693

(Pa. 2012).

After the record was sent to the appellate court, the

Commonwealth filed two requests for extensions of the

briefing schedule. The Commonwealth’s brief was

originally due on November 16, 2009. See Defendant’s

Exhibit 6 (Commonwealth’s First Application for Extension),

para. 3. On November 6, 2009 the Commonwealth requested

an extension to file its brief, which the Superior Court granted.

Defendant’s Exhibit 5 (Appellate Court Docket Sheet). The

prosecutor’s heavy workload was the reason for the request for

extension. Specifically, the prosecutor needed to file other

briefs that were due in the Pennsylvania Supreme Court; file a

brief in a capital case that was due in the Pennsylvania

Supreme Court; file an answer and brief that were due in a

federal habeas proceeding; prepare for and participate in an

evidentiary hearing in a capital PCRA case; and fulfill

responsibilities pursuant to the Investigating Grand Jury Act.

Defendant’s Exhibit 6, paras. 4 and 5. This first request

extended the Commonwealth’s briefing deadline from

November 16, 2009 to December 16, 2009.

On November 25, 2009, the Commonwealth requested a

second extension of time to file its brief and the reproduced

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record. Defendant’s Exhibit 5. The Commonwealth requested

a second extension until January 16, 2010. Defendant’s Exhibit

7. The reasons for this request were that the prosecutor had

briefs due in several separate murder cases, including three

capital cases. Id. On November 30, 2009, the Pennsylvania

Superior Court granted an extension from December 16, 2009

to January 4, 2010 (19 days). Defendant’s Exhibit 5. The

Commonwealth filed the reproduced record on December 31,

2009, and it filed its brief on January 4, 2010[, 49 days beyond

the original filing date of November 16, 2009].

The [trial court] also does not believe the

Commonwealth’s requests for extensions of the briefing

schedule showed a lack of due diligence. Due diligence

does not require perfect vigilance or punctilious care, but

merely a showing that the Commonwealth has put forth a

reasonable effort. Commonwealth v. Selenski, [] 994 A.2d

1083, 1089 (Pa. 2010). If the Superior Court did not think

that the Commonwealth offered good reasons for its

requests, it would have denied them. . . . Furthermore,

even if the Commonwealth failed to exercise due diligence in

filing its brief, it only resulted in [49] days of delay.

Appellant filed his appellate brief on February 1, 2010,

and the Superior Court scheduled oral argument for April

7, 2010. . . . This delay was not due to a lack of due

diligence on the Commonwealth and was beyond its

control. Therefore, January 4, 2010 to April 7, 2010 (93

days) was excusable delay.

[On April 6, 2010, the Commonwealth requested a

continuance of oral argument due to illness of the

prosecutor. This Court granted the continuance and

rescheduled to June 8, 2010. The trial court concluded, “No

matter how diligent an individual may be, he has no

control over an inability to attend a hearing due to an

illness. The court finds the time from April 7, 2010 to

June 8, 2001 (62 days) is excusable delay.

On May 10, 2010, the Commonwealth again requested a

continuance. Defendant’s Exhibit 5. The reason was that

several days earlier the Superior Court had scheduled

another case of the prosecutor’s for an argument in

Philadelphia on the same date and at the same time that

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the Superior Court scheduled this case for an argument

in Harrisburg. Defendant’s Exhibit 8. Obviously, the

prosecutor could not be in two different places at the same

time. The Superior Court granted the Commonwealth’s

continuance request and rescheduled the argument to August

24, 2010. The court finds that the time from June 8, 2010

to August 24, 2010 (77 days) is excusable delay.

The Superior Court rendered its decision on October 25, 2010,

and remitted the record on or about December 2, 2010. The

time from the oral argument on August 24, 2010 to the remittal

of the record on December 2, 2010 (100 days) was judicial

delay that occurred despite the Commonwealth’s diligence and

was beyond the Commonwealth’s control; therefore, it

constitutes excusable delay.

Lower Court Opinion, 10/22/20, at 2-5. This timely appeal followed.

In Appellant’s brief, he raises one issue for our review:

Whether the trial court abused its discretion when it denied

Appellant’s motion to dismiss pursuant to Pa.R.Crim.P. 600 and

subsequently denied Appellant’s post-sentence motion nunc pro

tunc seeking review of the trial court’s Rule 600 opinion where the

Commonwealth failed to produce any evidence that it acted

diligently to bring the instant matter to trial during the more than

four years the instant case was pending between the filing of the

complaint and commencement of trial?

Appellant’s brief at 8.

We review an order granting or denying a Rule 600 motion for an abuse

of discretion. See Commonwealth v. Roles, 116 A.3d 122, 125 (Pa.Super.

2015). In determining if there was such an abuse, we view the facts in the

light most favorable to the prevailing party. Id. Our scope of review is limited

to the trial court's findings and the evidence of record from the Rule 600

proceeding, which we view in the light most favorable to the prevailing party.

Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa.Super. 2018).

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Pursuant to the version of Pa.R.Crim.P. 600 that was in effect during all

periods pertinent to this case, the Commonwealth had 365 days to bring

Appellant to trial. Specifically, Rule 600(A)(3) provided, “Trial in a court case

in which a written complaint is filed against the defendant, when the defendant

is at liberty on bail, shall commence no later than 365 days from the date on

which the complaint is filed.” See Rule 600 (effective July 1, 2000–June 30,

2013). Subsection (B) of Rule 600 provided “[f]or 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.”

Pa.R.Crim.P. 600(13).

Herein, however, we calculate the 365 days under Rule 600 by starting

on when the complaint was filed and ending when Appellant filed his motion

to dismiss. Commonwealth v. Hyland, 875 A.2d 1175, 1189 (Pa.Super.

2005).

Former Rule 600(C) identified certain periods of excludable time that

are not included in the calculation to determine whether the Commonwealth

violated the 365–day period. Those periods stem from, inter alia, a

defendant's express waiver of Rule 600, delays resulting from the defendant's

unavailability, or a request for a continuance. Commonwealth v.

Miskovitch, 64 A.3d 672, 677 (Pa.Super. 2013). In addition, our case law

recognizes the legal construct of excusable delay to “account [for] delays

which occur as a result of circumstances beyond the Commonwealth's control

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and despite its due diligence.” Commonwealth v. Peterson, 19 A.3d 1131,

1137 (Pa.Super. 2010) (en banc), aff'd, 44 A.3d 655 (Pa. 2012).

Notably, the current iteration of Rule 600, which became effective in

2013 after the relevant time in the case sub judice, instructs in its subsection

(C) that the 365-day computation of time shall include periods of delay caused

by the Commonwealth when the Commonwealth has failed to exercise due

diligence, whereas any other period of delay shall be excluded from the

computation:

(C) Computation of Time

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.

Rule 600(C).

The comment to the current Rule 600(C), however, makes clear that it

derives from controlling decisional law interpreting the requirements of the

prior iteration of Rule 600:

For purposes of determining the time within which trial must be

commenced pursuant to paragraph (A), paragraph (C)(1) makes

it clear that any delay in the commencement of trial that is not

attributable to the Commonwealth when the Commonwealth has

exercised due diligence must be excluded from the computation

of time. Thus, the 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. See, e.g.,

Commonwealth v. Dixon, 589 Pa. 28, 907 A.2d 468 (2006);

Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12 (1998). If

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the delay occurred as the result of circumstances beyond the

Commonwealth's control and despite its due diligence, the time is

excluded. See, e.g.[,] Commonwealth v. Browne, 526 Pa. 83,

584 A.2d 902 (1990); Commonwealth v. Genovese, 493 Pa.

65, 425 A.2d 367 (1981). In determining whether the

Commonwealth has exercised due diligence, the courts have

explained that “[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.” See, e.g., [ ]Selenski, 606 Pa [at] 61, 994

A.2d [at] 1089 [ ] (citing Commonwealth v. Hill and

Commonwealth v. Cornell, 558 Pa. 238, 256, 736 A.2d 578,

588 (1999)).

Pa. R. Crim. P. 600, comment.

As such, the former and current Rule 600 are substantially similar for

our present purposes of discerning the Commonwealth’s exercise of due

diligence during the relevant time. See Commonwealth v. Harth, 252 A.3d

600, 617 (Pa. 2021) (“requiring the Commonwealth to demonstrate that it

acted with due diligence before a trial court excludes time from its Rule 600

time computation on the basis of “judicial delay” comports with the language

of Rule 600(C)(1) and its commentary, the purpose behind the rule, and our

prior jurisprudence interpreting Rule 600 and its predecessor.”) (emphasis

added); Commonwealth v. Wiggins, 248 A.3d 1285 (Pa.Super. 2021)

(observing general dictates of new Rule 600 remained the same as they were

prior to adoption, but noting prior distinctions between excludable time and

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excusable delay were abandoned for streamlined review of Commonwealth’s

due diligence, with any lack thereof constituting “includable time”).3

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.” Id. at 701-02 (quoting

Selenski, 994 A.2d at 1089). This standard reflects the recognition that Rule

____________________________________________

3 The Pennsylvania Supreme Court has aptly set forth an overview of the

requirements and computational approach of current Rule 600, as follows:

Rule of Criminal Procedure 600 requires that “[t]rial 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(A)(2)(a). Per the associated

computational guidance, periods of delay at any stage of the

proceedings caused by the Commonwealth when it has failed to

exercise due diligence are to be counted in the 365–day tally. See

id. 600(C)(1). The rule further directs that “[a]ny other periods

of delay shall be excluded from the computation.” Id. (emphasis

added). Failure to meet the rule's prompt-trial requirement

constitutes grounds for dismissal. See id. 600(D)(1).

Commonwealth v. Mills, 162 A.3d 323, 324 (Pa. 2017) (emphasis in

original). See also Pa.R.Crim.P. 600, cmt. (“[A]ny delay in the

commencement of the trial that is not attributable to the Commonwealth when

the Commonwealth has acted with due diligence must be excluded from the

computation of time.”) (emphasis added).

“[T]he Commonwealth is required to demonstrate that it acted with due

diligence during a time period before that period can be deemed excludable.”

Harth, 252 A.3d at 617. Therefore, “[j]udicial delay becomes relevant only

after the Commonwealth has proven its compliance with the due diligence

mandate.” Id. (quoting Mills, 162 A.3d at 327 (Wecht, J., concurring)); see

also Commonwealth v. Hawk, 597 A.2d 1141, 1145 (Pa. 1991)

(recognizing requirement that Commonwealth exercise due diligence at all

times during pendency of a case).

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600 has the dual purpose of protecting defendants’ constitutional right to a

speedy trial and society's countervailing right to effective prosecution of

criminal cases, Commonwealth v. Barbour, 647 Pa. 394, 189 A.3d 944, 955

(2018).” Harth, 252 A.3d at 617. Due diligence must be demonstrated by a

preponderance of the evidence. Commonwealth v. Bradford, 46 A.3d 693,

701 (Pa. 2012).

Deciding a Rule 600 motion entails the following analysis. First, the

court must determine the “mechanical run date”—that is, 365 days from the

date of the filing of the complaint. Bethea, 185 A.3d at 371. Second, the

court must determine whether any periods of delay are “excludable.” Id.

Excludable time for this purpose includes several possible periods of time: (1)

the time between the filing of the written complaint and the defendant's arrest,

if the defendant could not be apprehended because the defendant's

whereabouts were unknown and could not be determined by due diligence;

(2) any time for which the defendant expressly waives Rule 600; (3) delay

resulting from the unavailability of the defendant or the defendant's attorney,

and (4) any continuance at the request of the defendant or the defendant's

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

We “add the amount of excludable time, if any, to the mechanical run date to

arrive at an adjusted run date.” Bethea, 185 A.3d at 371 (quoting

Commonwealth v. Wendel, 165 A.3d 952, 956 (Pa.Super. 2017))

(emphasis omitted).

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If the trial did not occur before the adjusted run date, we then must

determine whether the additional delay was excusable. Excusable delay for

purposes of Rule 600 is any delay that was outside the control of the

Commonwealth and not the result of the Commonwealth's lack of diligence.

Hunt, 858 A.2d at 1241.

A defendant who has not been brought to trial within the time

specified in Rule 600(A) may, at any time prior to trial, “file a

written motion requesting that the charges be dismissed with

prejudice on the ground that [the] rule has been violated.”

Pa.R.Crim.P. 600(D)(1). If the trial court determines that the

Commonwealth violated Rule 600, it shall dismiss the charges and

discharge the defendant. See [Commonwealth v.] Burno, 154

A.3d [764, 793. Pa. 2017)].

Harth, 252 A.3d at 615.

Certainly, the “Commonwealth's good-faith interlocutory appeal

constitute[s] excusable delay under Rule 600, even if the Commonwealth was

unsuccessful on the merits of its claim.” Risoldi, 238 A.3d at 452.

Nonetheless, because the Commonwealth's duties under Rule 600 extend

throughout all stages of a case, Harth, 252 A.3d at 616; Hawk, 597 A.2d at

1145, it is required to act with reasonable diligence pursuing an interlocutory

appeal by right. See Matis, supra.

Thus, for example, if the Commonwealth unreasonably fails to take

proper steps to invoke this Court's jurisdiction in such an appeal, the delay

incurred counts against the Commonwealth. See Commonwealth v.

Malinowski, 671 A.2d at 678. Another example of where the Commonwealth

has not used time to bring a defendant’s case closer to trial is when an appeal

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cannot be decided and merely awaits a dismissal; such a record goes against

diligence. See Dixon, supra (“Commonwealth must do everything

reasonable within its power to guarantee that a trial begins on time”).

Appellant argues the Commonwealth failed to show at the post

sentence hearing nunc pro tunc that it had acted with due diligence to advance

its interlocutory appeal, but the record demonstrates that the preponderance

of evidence admitted at the hearing supported each of the trial court’s line-

by-line due diligence determinations.

On the issue of what effect the Commonwealth’s interlocutory appeal

should have on the Rule 600 computation in the case sub judice, the trial court

appropriately found guidance in Matis and its progeny. Recently, in Risoldi,

this Court provided a most salient discussion of Matis and the principles that

informed it:

Risoldi argues that 648 days of non-excusable delay occurred

when the Commonwealth motioned for the trial court's recusal and

appealed from the denial of that motion. Again, Risoldi argues

that the recusal motion and subsequent appeal were entirely

frivolous, such that the time attributed to those proceedings

cannot be excusable delay under Rule 600.

As acknowledged by Risoldi, the case most directly on point

addressing the effect of a Commonwealth appeal on a Rule 600

motion is [Matis].[] There, the Commonwealth sought a

continuance of a trial date, averring that it had been unable to

subpoena an essential witness for trial and would be unable to

prove the elements of its case without her. Id. at 14. The trial

court denied the motion and the Commonwealth filed a notice of

appeal on the day of trial, certifying that the trial court's denial

had substantially impaired the prosecution. Id. at 15. Ultimately,

this court quashed the appeal and denied the Commonwealth's

motion for reconsideration. Id. When the case was remanded to

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the trial court, the defendant filed a Rule 600 motion alleging that

the Commonwealth “failed to exercise due diligence in bringing

him to trial and filed a frivolous appeal in bad faith from a non-

appealable interlocutory order for the sole purpose of delaying the

trial.” Id.

The trial court granted the motion, finding that while the

Commonwealth had not acted in bad faith, it did not exercise due

diligence in bringing the defendant to trial. Id. The

Commonwealth appealed and this court reversed. Id. On further

review, our Supreme Court held that “[i]f the Commonwealth files

a pre-trial appeal in bad faith without the right to do so, it fails to

exercise due diligence pursuant to [Rule 600].” Id. at 17 (citation

omitted). However, the Court further recognized that “a pre-trial

appeal by the Commonwealth can serve as a proper basis to

extend the period for commencement of trial pursuant to [Rule

600],” such as when the Commonwealth certifies that a trial

court's suppression order has substantially handicapped the

prosecution. Id. at 17-18 (citing Jones v. Commonwealth, 495

Pa. 490, 434 A.2d 1197 (1981)). The court noted that such a

certification is sufficient to protect against the filing of frivolous

interlocutory appeals. Id. at 18.

Thus, notwithstanding the fact that this court had quashed the

Commonwealth's interlocutory appeal, the Supreme Court in

Matis held that the time period during which the interlocutory

appeal had been pending was excusable delay during which the

Commonwealth had exercised due diligence. Id. at 19. Moreover,

since the trial court had found that the Commonwealth did not act

in bad faith in filing the appeal, it was a valid interlocutory appeal.

Id. Because the Commonwealth exercised due diligence in

certifying the interlocutory appeal, the Supreme Court affirmed

this court's reversal of the order discharging the defendant. Id.;

compare [ ]Malinowski, 671 A.2d [at] 679-80 [ ](holding that

the Commonwealth failed to exercise due diligence in filing an

interlocutory appeal when it did not certify that the suppression

order substantially handicapped the prosecution, rendering the

order unappealable).

Matis is consistent with prior holdings of this court that the

Commonwealth's good-faith interlocutory appeal constituted

excusable delay under Rule 600, even if the Commonwealth was

unsuccessful on the merits of its claim. See, e.g.,

Commonwealth v. Ferri, 410 Pa.Super. 67, 599 A.2d 208, 210

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(1991) (holding that four-year delay for Commonwealth's appeal

of a denied motion for severance did not violate Rule 600);

Commonwealth v. Coleman, 341 Pa.Super. 160, 491 A.2d 200,

202 (1985) (holding that Commonwealth's interlocutory appeal

did not violate Rule 600 when the Commonwealth had a right to

appeal that would be moot after trial and there was no evidence

that the Commonwealth took the appeal as a delay tactic). Thus,

the Commonwealth need not be successful in its interlocutory

appeal to establish due diligence for the purposes of Rule 600.

The Commonwealth is entitled to a pre-trial appeal in some

circumstances in a criminal case. See Pa.R.A.P. 311(d)

(Interlocutory Appeals as of Right); Pa.R.A.P. 313 (Collateral

Orders).[] Given the length of the appellate process, this right

would be largely illusory if the Commonwealth could not exercise

it without certainty that it would succeed on the merits. This court

has previously recognized that the Commonwealth may appeal an

order denying its recusal motion pursuant to Pa.R.A.P. 313.

Commonwealth v. Stevenson, 829 A.2d 701, 704 (Pa. Super.

2003). In Stevenson, we emphasized that double jeopardy

protections preclude the Commonwealth from challenging the

denial of a recusal motion if it loses its case, while a defendant

who wishes to challenge the denial of a recusal motion retains the

right to post-sentencing appellate review. Id. An appeal pursuant

to Pa.R.A.P. 313 protects the Commonwealth's interest in a trial

free from bias, prejudice, unfairness or the appearance thereof.

Under all of these circumstances, the Commonwealth in this case

was entitled to appeal from the trial court's order denying its

motion to recuse, regardless of the fact that this court ultimately

affirmed the trial court's order. There is no indication in the record

that the Commonwealth took the appeal in bad faith or as a means

to delay trial. Matis, supra. Even though the Commonwealth

was unsuccessful on appeal, it had a legitimate interest in

ensuring the fairness and impartiality of the trial court and it was

entitled to protect that interest through appellate review. As such,

the Commonwealth exercised due diligence and the period during

which the motion to recuse and subsequent appeal were litigated

is excusable delay under Pa.R.Crim.P. 600(C)(1). As neither of

the periods of delay challenged by Risoldi result in a violation of

Rule 600, the trial court did not abuse its discretion in denying the

motion to dismiss.

Risoldi, 238 A.3d at 451–53.

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We find the rationale in Risoldi applies with full force to support the

trial court’s determination that the time dedicated to the Commonwealth’s

interlocutory appeal in the present matter qualified as excusable delay. Here,

the Commonwealth’s certification of its appeal was accepted by this Court, as

was its filing of the record, appellate brief, and its presentation of oral

argument, all of which contributed to a largely successful outcome of gaining

reinstatement of most charges that had been dismissed by order of the trial

court. Under the Matis rubric as discussed in Risoldi, therefore, we agree

the Commonwealth was duly diligent during the time of its interlocutory

appeal.

Though the trial court relied on Matis to conclude the Commonwealth’s

interlocutory appeal constituted excusable delay, it nevertheless elected to act

in an abundance of caution by engaging in a more granular due diligence

assessment of the Commonwealth’s post-notice of appeal actions that were

preconditions to gaining Superior Court review on the merits. Specifically,

these actions included the requisite tasks of assembling a complete record

with transcripts for transmission and presenting its issues through written

brief and oral argument. We find that, in so doing, the court’s more particular

due diligence review conforms to the Harth/Mills paradigm, outlined infra, of

applying excusable delay or excludable time only after determining that the

Commonwealth was duly diligent during the relevant pretrial period.

We, therefore, accept the scope of the court’s extended due diligence

review and adopt its explanation as to why the Rule 600 computation should

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add time for the three-month period in which the Commonwealth failed to

secure complete and available transcripts from the stenographer and forward

them to the Lycoming Clerk of Courts for inclusion in the certified record to be

sent to the Superior Court.

As such, it becomes clear that the outcome of Appellant’s Rule 600 claim

in its post-sentence motion nunc pro tunc turns on whether the six-month

delay associated with the Clerk of Court’s failure to transmit the certified

record to the Superior Court is included in or excluded from the computation,

as the remaining points of contention regarding delay associated with

receiving briefing extensions and continuances from this Court are neither

meritorious nor of sufficient magnitude to take the computation above 365

days. See infra.

After consideration of precedent, we find that Bradford compels the

decision that the Commonwealth satisfied due diligence standards of the era

when it delivered a complete and transmissible record to the clerk of courts

and thereafter relied on the court to discharge its duties under the

Pennsylvania Rules of Appellate Procedure to transmit the record to the

Superior Court within 60 days. See Pa.R.A.P. 1931. The six-month delay

occasioned by the clerk of courts’ inexplicable inaction therefore constituted a

period of judicial delay excludable from the Rule 600 calculations.

Bradford involved a Rule 600 motion to dismiss charges when the

Commonwealth failed to bring defendant to trial for more than one year after

defendant’s preliminary hearing. In fact, the Commonwealth had lost track of

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defendant’s case after the preliminary hearing because the court of common

pleas never received the file of defendant’s case from the magisterial district

judge (“MDJ”). The Commonwealth thus claimed that it had relied on the MDJ

to forward timely to the court of common pleas the relevant file pursuant to

Pennsylvania Rule of Criminal Procedure 547(B) (requiring the MDJ to prepare

and transmit the preliminary hearing transcript to the clerk of the proper court

within 5 days).

After a hearing, the trial court entered an order granting the defendant’s

motion to dismiss, and a divided panel of this Court affirmed, with the majority

finding the Commonwealth failed to act with due diligence which required it to

employ a record keeping system to track cases for Rule 600 purposes.

Bradford, at 632. The dissent opined the Rule 600 violation resulted not from

lack of due diligence but from judicial noncompliance with our rules of

procedure, which caused a breakdown in the operations of the court over

which the Commonwealth had no control. Id. at 639-49.

The Supreme Court granted review on the question of whether this

Court erred in ruling the trial court correctly determined the Commonwealth

had failed to act with due diligence in bringing the defendant to trial. In

reversing, the Court distinguished the case before it from prior decisions in

which Rule 600 violations were caused by the Commonwealth’s failure to carry

out the routine duties of its office through use of simple case tracking systems.

Bradford, 46 A.3d at 704-705.

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On this point, our Supreme Court observed, the duties in Bradford lay

with the MDJ who bore responsibility to follow “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. We,

therefore, “[did] 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,” which consisted of

receiving an electronic message from the Office of Court Records upon receipt

of the file from the MDJ.4 Id.

Having performed the work necessary to place the minor judiciary in the

position of carrying out its duty under not a “self-designed custom or practice”

but, instead, “the specific, mandatory Rules of Criminal Procedure, which

placed upon the District Judge the obligation to transmit timely papers to the

common pleas court[,]” the Commonwealth had put forth, in the Supreme

Court’s estimation, the reasonable effort necessary to a showing of due

diligence on its part. Id. at 704, 705.

“Even assuming the facts in a light most favorable to the Defendant as

the prevailing party,” the Court concluded, “the trial court abused its discretion

by misapplying the law when it concluded that reliance upon the Magisterial

____________________________________________

4 We take judicial notice of the virtually identical modes of notification at work

in Bradford (common pleas court sends electronic notice to Commonwealth

that it has received file) and in the case sub judice (appellate court

prothonotary immediately gives notice to all parties of the date on which

record was received and filed, and shall give notice to all parties of the date,

if any, for the filing of the brief of the appellant. See Pa.R.A.P. 1934).

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District Judge’s obligation to comply with the Rules of Criminal Procedure did

not constitute due diligence.” Id. at 705.

The Bradford decision was endorsed by both the Mills majority and

concurrence: “As the Majority notes, we recognized ‘judicial delay’ as a

concept, and ultimately determined that the delay in Bradford’s case was

attributable to the judiciary, not to the Commonwealth. Bradford, 46 A.3d

at 702-05. However, we did so only after finding the Commonwealth had

exercised due diligence by relying upon the MDJ’s office to advance the case.

Id.” Mills, 162 A.3d at 327 (Wecht concurring).5

Nevertheless, the Mills concurrence admonished that a future case

repeating Bradford’s peculiar facts of reliance-without-verification followed

by significant delay may not be met with the same favorable result, given

recent advances in case/record tracking capabilities. Of import for our present

purposes, however, is that the Commonwealth’s 2008 reliance at issue in the

case sub judice preceded the 2017 admonition in Mills by nine years.

Therefore, we deem no error with the trial court’s decision to categorize

as excludable “judicial delay” the Lycoming County Clerk of Court’s six-month

delay in transmitting the record to this Court.

Finally, as noted, we briefly address this Court’s series of orders granting

the Commonwealth’s motions requesting extensions of the briefing schedule

____________________________________________

5 The concurring opinion’s observation in Rule 600 of a “linear construction”

mandating due diligence review prior to addressing judicial delay was later

adopted by the majority in Harth.

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and continuances of oral argument. With respect to the Commonwealth’s

receipt of a 49-day extension of its briefing deadline, a review of the record

shows the Commonwealth’s detailed explanation that an unusually heavy

appellate workload, much of which involved synchronous, pressing obligations

on the Supreme Court’s capital docket, was offered to and accepted by this

Court, thus allaying any concern that the Commonwealth was idly “sitting on

its hands” in disregard of its obligations to put forth a reasonable effort to

complete its brief in light of Appellant’s speedy trial rights.

As for the motions to continue oral argument, the first alleged the

prosecutor’s illness, which this Court accepted. The second request for

continuance explained that this Court had listed the prosecutor’s other case

about one week prior to listing the present case to the same argument date,

Tuesday, June 8, 2010, at 8:30 a.m. The motion therefore sought to retain

the listing for the first case scheduled for this date and time and to reschedule

the present matter “to a future date,” because counsel could not be in two

places at the same time.

This open-ended request, as stated, suggested readiness for argument

on any future date, including the following day of oral argument, Wednesday,

June 9, 2010, particularly where the motion also indicated that undersigned

counsel was familiar with the record and had thoroughly researched the law

governing the issues raised, formulated the arguments to be presented to the

Superior Court, and written the briefs that were filed in this Court. The

circumstances surrounding the motion, therefore, are consistent with a finding

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of continued due diligence in preparing for oral argument throughout the

relevant time. Cf. Harth, 252 A.3d at 616 (citing precedent acknowledging

Commonwealth is not accountable for delay where prosecutor is ready for trial

but court calendar did not accommodate it).

For the foregoing reasons, we conclude that the lower court

appropriately denied Appellant’s post sentence motion for Rule 600 relief as

devoid of merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/04/2021

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