Commonwealth v. Plowden

J-E03004-16

2017 PA Super 61

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

TYSHAWN PLOWDEN

Appellee No. 143 WDA 2015

Appeal from the Order January 6, 2015

In the Court of Common Pleas of Cambria County

Criminal Division at No(s): CP-11-CR-0002528-2013

BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J.,

STABILE, J., DUBOW, J., MOULTON, J., and RANSOM, J.

OPINION BY OTT, J.: FILED MARCH 08, 2017

The Commonwealth of Pennsylvania appeals from the order1 entered

January 6, 2015, in the Court of Common Pleas of Cambria County, that

granted the motion filed by Tyshawn Plowden pursuant to Pennsylvania Rule

of Criminal Procedure 600 and dismissed the charges against Plowden with

prejudice. The Commonwealth contends the trial court abused its discretion

in granting the motion because the Commonwealth exercised due diligence

in prosecuting Plowden who was incarcerated in another state outside the

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1

The Commonwealth properly certified, in its notice of appeal, that “said

order will terminate or substantially handicap the prosecution,” a

prerequisite to this Court’s jurisdiction pursuant to Pa.R.A.P. 311(d). Notice

of Appeal, 1/20/2015.

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control of the Commonwealth. For the reasons below, we reverse and

remand for further proceedings.

The trial court summarized the relevant procedural history, as follows:

The parties have stipulated, in accordance with the record, that

the Rule 600 time limits expired on December 27, 2014. A

review of the record reveals that on June 9, 2014, [Plowden]

filed a Petition for Nominal Bail Pursuant to Rule 600, and

therein alleged that the 180-day time period for bringing him to

trial expired on June 9, 2014. On June 19, 2014, the Honorable

Gerard Long of this [c]ourt granted [Plowden’s] Petition and set

bond at $1.00. On July 11, 2014, [Plowden] was released from

the Cambria County Prison and was extradited to the State of

New York, following an extradition hearing on July 3, 2014.

At the January 5, 2015 hearing [on the Rule 600 motion], the

Commonwealth offered a written log and oral testimony from

Detective Lia DeMarco relative to the Commonwealth’s efforts to

secure [Plowden] from the State of New York from July 2014 to

present. See 1/5/15 Com. Exhibit A. At [the] hearing, Detective

DeMarco testified, in response to questioning by the Court, that

when the Cambria County Prison, in July 2014, inquired with the

Commonwealth as to whether [Plowden] could be extradited to

the State of New York, the Commonwealth did not object to the

extradition. N.T. 1/5/15 at p. 24. The Detective also admitted

that prior to his release from the Cambria County Prison, no one

scrutinized the charges … pending in Cambria County. [2] N.T.

1/5/15 at p. 24. However, she further testified that since this

case, the Commonwealth’s protocol has changed. N.T. 1/5/15 at

pp. 24-25. Additionally, counsel for the Commonwealth freely

admitted that the Commonwealth should have known that there

were charges pending against [Plowden], should have more

closely taken action prior to his release to the State of New York,

and are now attempting to rectify the errors. N.T. 1/5/15 at pp.

29-30.

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2

On November 17, 2013, the Commonwealth filed charges of aggravated

assault against Plowden for a shooting in the City of Johnstown. Plowden

was also charged with drug and firearms offenses.

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Testimony was also presented at the January 5, 2015 hearing

that the Commonwealth started proceeding pursuant to the

Interstate Agreement on Detainers (“IAD”) on September 24,

2014. N.T. 1/5/15 at p. 40. However, formal written demand

was not filed until October 9, 2014. Id. Thereafter, on December

12, 2014, as a “backup” plan, the Commonwealth also began

proceedings pursuant to the Uniform Extradition Act, as

Detective DeMarco learned from the State of New York that she

needed to obtain a governor’s warrant from Harrisburg. N.T.

1/5/15 at pp. 41-42.

On December 4, 2014, the last scheduled Jury Selection date

prior to the Rule 600 run date of December 27, 2014, the [c]ourt

specially set another Jury Selection date of December 16, 2014

to accommodate the Rule 600 time frame. However, [Plowden]

was not present on either December 4th or December 16th,

given that he was incarcerated in New York. In fact, as of the

January 5, 2015 hearing date, [Plowden] had still not been

returned to Cambria County, but his trial date was set for

January 8, 2015, and the Cambria County Sheriff’s Office had

made arrangements to transport [Plowden] from upstate New

York to Cambria County on January 7, 2015.

Trial Court Opinion, 3/9/2015, at 3–4.

Based upon these facts, the trial court granted Plowden’s Rule 600

motion and dismissed the criminal charges pending against him with

prejudice. The trial court also denied as moot Plowden’s objection to the

court conducting the January 5, 2015 hearing in his absence. Trial Court

Order, 1/6/2015, at 2 (unnumbered).

A divided panel of this Court affirmed the order of the trial court.

Thereafter, the Commonwealth sought en banc review, which this Court

granted. The matter is now ready for our review.

In evaluating a Rule 600 issue:

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[O]ur standard of review of a trial court’s decision is 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.

Additionally, when considering the trial court’s ruling, this Court

is not permitted to ignore the dual purpose behind Rule [600].

Rule [600] serves two equally important functions: (1) the

protection of the accused’s speedy trial rights, and (2) the

protection of society. In determining whether an accused’s right

to a speedy trial has been violated, consideration must be given

to society’s right to effective prosecution of criminal cases, both

to restrain those guilty of crime and to deter those

contemplating it. However, the administrative mandate of Rule

[600] was not designed to insulate the criminally accused from

good faith prosecution delayed through no fault of the

Commonwealth.

So long as there has been no misconduct on the part of the

Commonwealth in an effort to evade the fundamental speedy

trial rights of an accused, Rule [600] must be construed in a

manner consistent with society’s right to punish and deter crime.

In considering [these] matters . . . courts must carefully factor

into the ultimate equation not only the prerogatives of the

individual accused, but the collective right of the community to

vigorous law enforcement as well.

Commonwealth v. Watson, 140 A.3d 696, 697–698 (Pa. Super. 2016)

(citation omitted), appeal denied, ___ A.3d ___ [2016 Pa. LEXIS 2924] (Pa.

Dec. 28, 2016).

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Rule 600, as amended July 1, 2013,3 provides, in pertinent part, 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). For purposes of computing

when trial must commence, “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.... Any other periods of

delay shall be excluded from the computation.” Pa.R.Crim.P. 600(C)(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.” Pa.R.Crim.P. 600(D)(1).

The Comment to the Rule explains the computation of time, in relevant

part, as follows:

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

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3

All relevant actions in this case took place after the effective date of the

amendment.

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whether the delay is caused solely by the Commonwealth when

the Commonwealth has failed to exercise due diligence. If the

delay occurred as a result of circumstances beyond the

Commonwealth’s control and despite its due diligence, the time

is excluded. 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.”

Pa.R.Crim.P. 600, Comment (citations omitted).

The trial court, in the order under appeal, made the following findings:

1) Pursuant to the stipulation of the parties and in

accordance with the record, the Court finds that Rule 600

time limits expired in this case on December 27[,] 2014.

2) Having considered Commonwealth Exhibits 1 and A,[4] as

well as the testimony relative thereto, the Court finds

that the Commonwealth has failed to prove due diligence

on its part sufficient to extend the parameters of Rule

600. The lack of due diligence is further exemplified by

all of the following matters of record:

a) On June 9, 2014, [Plowden] filed a Petition for Nominal

Bail Pursuant to Rule 600, and alleged therein that the

180-day period expired on June 9, 2014. Thereafter,

on June 19, 2014, the Honorable Gerald Long granted

[Plowden’s] Petition and set bond at $1.00. Therefore,

the Commonwealth was on notice that Rule 600 again

would be violated in 180 days, absent any proper

defense continuances.

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4

Commonwealth’s Exhibit 1, presented to the court on December 4, 2014,

the date initially set for jury selection, is a document prepared by Detective

Lia DeMarco, showing her activity on Plowden’s case from July 3, 2014, to

November 20, 2014. Commonwealth’s Exhibit A, admitted at the Rule 600

hearing on January 5, 2015, is the same document with additional entries

that end on December 12, 2014.

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b) [Plowden] was released from the Cambria County Prison

to the State of New York, with the knowledge of the

Cambria County District Attorney’s Office, on July 11,

2014. The Commonwealth did not request a stay from

extradition.

c) On December 4, 2014, the last scheduled Jury Selection

date prior to the Rule 600 run date of December 27,

2014, the Court specially set another Jury Selection

date of December 16, 2014 to accommodate the Rule

600 time frame. However, [Plowden] was not present

on either December 4th or December 16th, given that he

was incarcerated in New York.

d) As of the January 5, 2015, hearing date, [Plowden] had

still not been returned to Cambria County, but his trial

date was set for January 8, 2015, and the Cambria

County Sheriff’s Office had made arrangements to

transport [Plowden] from upstate New York to Cambria

County on January 7, 2015.

Order, 1/6/2015, at 1–2.

In its Rule 1925(b) opinion, the trial court reiterated:

[I]t is clear that once [Plowden] was granted nominal bond on

June 19, 2014, the Commonwealth was on notice that Rule 600

would again be violated in 180 days, absent any proper defense

continuances. The record also reveals that, despite having

knowledge of New York’s extradition proceedings, at no time did

the Commonwealth request a stay from extradition. In fact, the

Commonwealth waited until October 9, 2014 to file any formal

written documents to initiate [Plowden’s] return. Again, as of

January 5, 2015, the Commonwealth still had not transported

[Plowden] for trial.

Accordingly, we find that the Commonwealth did not act with

due diligence in procuring [Plowden’s] person for trial, and that

the circumstances occasioning the delay in trial were not beyond

the Commonwealth’s control. Consistent with the aforesaid, and

in consideration of the entire record, the appeal should be

dismissed.

Trial Court Opinion, 3/9/2015, at 4–5.

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The Commonwealth’s position on appeal is that the trial court’s

decision to grant Plowden’s Rule 600 motion was based on the trial court’s

disapproval of the Commonwealth’s initial failure to contest Plowden’s

extradition to New York in July of 2014. The Commonwealth claims the trial

court “perceived allowing [Plowden] to be extradited [to New York] as a fatal

flaw.” Commonwealth Brief at 11. The Commonwealth asserts because

December 27, 2014, was the stipulated Rule 600 time limit and Plowden was

set to be transported and brought to trial on January 8, 2015, it needed to

prove only 12 days of excludable time relating to its diligent efforts to

transport Plowden from New York for trial. See Commonwealth Brief at 12.

The Commonwealth argues the 91-day period from October 9, 2014, when

the Commonwealth made a formal request for Plowden’s transfer pursuant

to the Interstate Agreement Detainers (“IAD”), 42 Pa.C.S. § 9101 et seq.,5

until jury selection on January 8, 2015, should be excluded from the Rule

600 computation based on its efforts to bring Plowden from New York to

Pennsylvania. See id. at 16. The Commonwealth also argues that delay

caused by Plowden contesting extradition, from October 17, 2014, to

December 19, 2014, the earliest possible date the Commonwealth could

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5

“The IAD is a compact among 48 states, the District of Columbia and the

United States. The IAD establishes procedures for the transfer of prisoners

incarcerated in one jurisdiction (the ‘sending state’) to the temporary

custody of another jurisdiction (the ‘receiving state’), which has lodged a

detainer against them.” Commonwealth v. Horne, 89 A.3d 277, 281 (Pa.

Super. 2014) (footnote and citations omitted).

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transfer him, constitutes redundant excludable time of 63 days. See id. at

17–18.

Plowden counters that it is of paramount importance that, while the

Commonwealth had notice of the potential speedy trial problems as of June

19, 2014, the date of the nominal bail hearing, and of the New York

detainer, the Commonwealth did not request the Governor of Pennsylvania

to hold Plowden until disposition of the Cambria County charges. Plowden

argues that the detective’s testimony at the Rule 600 hearing that the

Commonwealth had no notice of the pending charges against Plowden is of

no avail in light of the Commonwealth’s own records and its access to search

resources such as JNET [Justice Network] and the UJS [Unified Judicial

System] portal. In support, Plowden cites Commonwealth v. Browne,

584 A.2d 902, 905 (Pa. 1990), wherein the Pennsylvania Supreme Court

rejected the Commonwealth’s argument that “it would be unduly harsh to

require the office of the district attorney to monitor cases being returned to

the court in order to unearth ‘problem cases’ under Rule [600].” See

Plowden’s Brief at 7–8.6

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6

In Commonwealth v. Bradford, 46 A.3d 693 (Pa. 2012), the

Pennsylvania Supreme Court explained its decision in Browne, stating:

In Browne, the defendant was issued a Notice of Arraignment

by the district justice at the conclusion of the preliminary

hearing. Under the system of arraignments and criminal trials in

the relevant county, the trial date that corresponded to the

(Footnote Continued Next Page)

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At the Rule 600 hearing, Detective Lia DeMarco, of the Cambria

County District Attorney’s Office, who was responsible for extradition

requests, detailed her efforts to secure Plowden’s return from New York.

N.T., 1/5/2015, at 10, 14–28; see also Commonwealth’s Exhibit A,

1/6/2015, at 1–4 (unnumbered). Detective DeMarco testified that prior to

the extradition hearing, the Commonwealth relied on information from

Cambria County Prison that indicated “there’s nothing else that’s holding him

_______________________

(Footnote Continued)

defendant’s arraignment date resulted in a situation where the

trial would not commence until well beyond the mechanical run

date under Rule 1100 [now Rule 600]. Relevant to our ultimate

decision, under the local county rules applicable in Browne, the

district attorney was responsible for conducting the

arraignments. Id. at 904. When the potential Rule 1100

violation became apparent, the Commonwealth sought an

extension of the run date, which was denied by the trial court,

resulting in the eventual grant of the defendant’s Rule 1100

motion. The Superior Court reversed and reinstated the charges,

finding that the Commonwealth exercised due diligence and that

the delay was due to the district justice’s scheduling of the

arraignment.

We reversed, concluding that the Commonwealth failed to

exercise due diligence. We stated that to act with due diligence,

“prosecutors must do everything reasonable within their power

to see that the case is tried on time.” Id. at 905 (internal

citation omitted). We determined that the district attorney’s

actions were not reasonable in Browne: “Particularly in light of

the Lancaster County District Attorney’s heavy responsibility

under Local Rule 303 (with respect to conducting arraignments)

..., it is not unreasonable or erroneous to expect the District

Attorney’s Office to track arraignment dates on a routine basis.”

Id. at 905–06.

Bradford, supra, at 703-704.

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at our facility.” Id. at 13. Detective DeMarco admitted that based on this

information, the Commonwealth took no steps to delay or oppose New

York’s extradition request.7 See id. She further testified that “before we

even had the hearing, … we realized that … we would need [] to bring

[Plowden] back here.” Id. at 14.

Detective DeMarco stated her initial telephone contact with Plowden’s

New York parole officer was on July 3, 2014 — the same date as the

extradition hearing. Id. at 15. She discussed her efforts to communicate

with New York authorities, and testified that, on October 9, 2014, she

formally started the process to transfer Plowden to Pennsylvania pursuant to

the IAD. Id. at 15–16, 40. See also Commonwealth Exhibit A.

Following Detective DeMarco’s initiation of the IAD process, she was

informed on October 17, 2014, by her contact in New York that Plowden was

contesting his detainer and demanding a Cuyler hearing.8 See

Commonwealth Exhibit A. On October 20, 2014, Detective DeMarco learned

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7

The Commonwealth’s attorney acknowledged that “[o]ur office should have

known there were charges pending against Mr. Plowden. We should have

known that.” N.T., 1/5/2015, at 29.

8

“In Cuyler v. Adams, 449 U.S. 433, 101 S. Ct. 703, 6 L. Ed. 2d 641

(1981), the United States Supreme Court held that prisoners involuntarily

transferred by detainer pursuant to the IAD were entitled to the same pre-

transfer rights as those prisoners transferred under the Uniform Criminal

Extradition Act, 42 Pa.C.S. § 9121 et seq., i.e., a pretrial hearing.”

Commonwealth v. Booze, 953 A.2d 1263, 1267 n.5 (Pa. Super. 2008).

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the IAD paperwork she had mailed to Harrisburg over two weeks earlier had

been received by her Harrisburg contact on that date. See id. On October

23, 2014, Detective DeMarco was advised by her Harrisburg contact that

IAD paperwork “Form V” should have been mailed directly to New York, and

Detective DeMarco sent a new Form V to New York by overnight mail. See

id. New York authorities received the paperwork on October 27, 2014, but

Plowden was not served with the IAD paperwork until November 12, 2014.

See id. On November 20, 2014, Detective DeMarco was notified that New

York authorities had scheduled a Cuyler hearing for December 10, 2014.

See id. See also N.T., 1/5/2015, at 51–52. On December 11, 2014,

Detective DeMarco learned the IAD hearing had failed, and she would need

to obtain a Governor’s Warrant.9 N.T., 1/5/2015, at 41. She sent the

paperwork for the Governor’s Warrant by overnight mail to Harrisburg on

December 12, 2014. See id. at 41. See also Commonwealth Exhibit A.

Despite New York authorities’ requirement for a Governor’s Warrant,

transfer was subsequently effectuated pursuant to the IAD. Id. at 42.

Detective DeMarco testified that on December 22, 2014, and December 29,

2014, the Cambria County District Attorney’s Office overnighted IAD forms

to Pennsylvania authorities for transmission to New York. Id. at 42–43.

Detective DeMarco further testified she did not know when Cambria County

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9

See Uniform Criminal Extradition Act, 42 Pa.C.S. §§ 9121–9148.

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was informed that Plowden was available to be picked up from New York

authorities because she was not there when the call came to confirm the

transfer. Id. at 53. She had gone on maternity leave on December 19,

2014. Id. at 19. She testified that the call from New York to transfer

Plowden came “after the 19th.” Id. at 54. She stated Cambria County

deputies would be going to pick up Plowden “pursuant to the IAD based

upon the materials that were sent out on December the 29th [2014].” Id. at

43. Commonwealth counsel informed the trial court Plowden was scheduled

to be picked up in New York on January 7, 2015. Id. at 7. The

Commonwealth filed a request that the case be set for jury selection on

January 8, 2015. Id. at 6.

At the conclusion of the hearing, Plowden’s attorney argued that the

Commonwealth “knew or should have known of the situation here … on

June 24th when [New York’s] extradition request was received,” and that “all

of the steps that were taken afterwards were obviated or negated by letting

[Plowden] go [to New York authorities] on July 3rd without … asking the

governor to exercise discretionary power, not to extradite until the pending

prosecution was completed.” N.T., 1/5/2015, at 55–56. Plowden’s attorney

further argued that the delay “from the month of July to the month of

October,” when the Commonwealth initiated formal proceedings for

Plowden’s transfer, was “not due diligence.” Id. at 57. Plowden’s counsel

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asserted the Commonwealth “should have taken action in July or in August.”

Id. at 59.

The Commonwealth argued that 12 days elapsed between the

expiration of the Rule 600 date, December 27, 2014, and the date for jury

selection, January 8, 2015, and that based on the record there were at least

12 days of excludable delay because “certain things … happened here that

were beyond our control even though we attempted and tried to get

[Plowden] back.” Id. at 60. The Commonwealth argued that while “we

probably should have acted sooner than October when we finally and

formally instituted [IAD] proceedings[,] … [t]here would have been sufficient

time to bring [Plowden] back and try him … before the 365 days transpired

[sic].” Id. at 61–62. The Commonwealth urged that the additional delay

“was out of our hands.” Id. at 63.

“It is generally held that Rule [600] is tolled where the Commonwealth

shows, by a preponderance of the evidence, that it has acted with due

diligence in seeking extradition to bring the defendant to trial.”

Commonwealth v. McNear, 852 A.2d 401, 406 (Pa. Super. 2004) (citation

omitted). A criminal defendant who is incarcerated in another jurisdiction is

unavailable within the meaning of Rule 600 if the Commonwealth

demonstrates by a preponderance of the evidence that it exercised due

diligence in attempting to procure the defendant’s return for trial.

Commonwealth v. Booze, 953 A.2d 1263, 1273 (Pa. Super. 2008), citing

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McNear, 852 A.2d at 404. See also Pa.R.Crim.P. 600, Comment (“[T]he

defendant should be deemed unavailable for the period of time during which

the defendant contested extradition, or a responding jurisdiction

delayed or refused to grant extradition.") (emphasis added).

As stated in our case law, and reiterated in the Comment to Rule 600,

“[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.

Selenski, 994 A.2d 1083, 1088 (Pa. 2010); Pa.R.Crim.P. 600, Comment,

citing Selinski. The Commonwealth has the burden of demonstrating by a

preponderance of the evidence that it exercised due diligence. Selinski,

994 A.2d at 1089.

Based on our review of the record, we find the trial court abused its

discretion in determining that “the Commonwealth did not act with due

diligence in procuring [Plowden’s] person for trial, and that the

circumstances occasioning the delay in trial were not beyond the

Commonwealth’s control.” Trial Court Opinion, 3/9/2015, at 4–5. While we

agree with the trial court that the time from July 3, 2014, up to October 9,

2014, is attributable to the Commonwealth,10 we conclude the

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10

Although we recognize Detective DeMarco communicated with New York

officials about the need to bring Plowden to Pennsylvania for trial, beginning

on July 3, 2014, and attempted to continue communication during the

(Footnote Continued Next Page)

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Commonwealth’s IAD transfer request evidences due diligence, and that the

IAD process was not within the control of the Commonwealth. As such, the

time from October 9, 2014, to January 7, 2015, represents excludable delay.

See Pa.R.Crim.P. 600(C)(1) and Comment; Booze, supra.

Whereas in Browne, cited by Plowden, the Pennsylvania Supreme

Court found a lack of due diligence due to the district attorney’s failure to

maintain a recordkeeping system to keep track of cases for Rule 600

purposes, 584 A.2d at 905–906, the present case involves the

Commonwealth’s immediate recognition — on or before the July 3, 2014,

extradition hearing — of its oversight and its need for Plowden’s return.

The record reflects Detective DeMarco contacted New York authorities

on July 3, 2014, maintained contact with them, and ultimately made a

formal request pursuant to the IAD, on October 9, 2014, for Plowden’s

return from New York. Although this request was made over three months

after the July 3, 2014, extradition hearing, there remained more than two

and one-half months before the date of December 27, 2014 — the stipulated

Rule 600 time limit. The record demonstrates that from October 9, 2014,

the IAD process was stymied mainly by New York authorities. The testimony

of Detective DeMarco described, inter alia, (1) an unexplainable delay of

_______________________

(Footnote Continued)

months of July and August, the unresponsiveness of New York officials

should have prompted the Commonwealth to act earlier in accordance with

the IAD. See Commonwealth Exhibit A, at 1 (unnumbered).

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approximately two weeks for IAD papers to be received by Detective

DeMarco’s contact in Harrisburg, (2) a more than two-week delay by New

York authorities in serving Plowden with the IAD paperwork, (3) a three-

week delay by New York authorities in holding the Cuyler hearing, and (3)

New York authorities’ requirement — on December 11, 2014 — that the

transfer be done instead pursuant to a Governor’s Warrant, yet confirming

Plowden’s transfer at some point after December 19, 2014, and proceeding

pursuant to the IAD. As a result, Plowden was set to be picked up in New

York on January 7, 2015, and jury selection scheduled for January 8, 2015

— 12 days beyond the Rule 600 time limit.

Here, the Commonwealth demonstrated affirmatively that it proceeded

pursuant to the IAD process to achieve Plowden’s timely return and

continued to communicate with New York authorities, and that its goal was

foiled by circumstances over which it had no control. Because there was no

misconduct on the part of the Commonwealth to evade the fundamental trial

rights of Plowden, see Watson, 140 A.3d at 698, we conclude the 90-day11

delay during the period of the IAD process, from October 9, 2014, to

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11

The Commonwealth’s calculation of 91 days of excludable delay included

January 8, 2015. However, we have not included that date since Plowden’s

transfer to Pennsylvania was scheduled for January 7, 2015.

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January 7, 2015, is excludable from the Rule 600 calculation. 12 See

Pa.R.Crim.P. 600(C)(1); Pa.R.Crim.P. 600, Comment (“If the delay occurred

as the result of circumstances beyond the Commonwealth’s control and

despite its due diligence, the time is excluded.”). See also Booze, 953

A.2d at 1275 (where detective initiated involuntary IAD procedures on July

29, 2004, New Jersey officials delayed process, and defendant was

transferred to Pennsylvania on April 20, 2005, 256 days between July 29,

2004, and April 20, 2005, were properly excluded from Rule 600

calculation). We therefore reverse the order of the trial court and remand

for further proceedings.

Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/8/2017

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12

Even if we were only to consider New York authorities’ two weeks’ lapse in

serving Plowden with the IAD paperwork (October 29, 2014, to November

12, 2014), and nearly three weeks’ lapse in scheduling the Cuyler hearing

(November 20, 2014 to December 10, 2014), the excludable delay would

amount to 34 days, making the Rule 600 time limit beyond the date of the

court’s January 6, 2015 order that dismissed the charges against Plowden

with prejudice.

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