Com. v. Blanco, R.

J-S04020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

RAMON BLANCO :

:

Appellant : No. 2290 EDA 2022

Appeal from the Judgment of Sentence Entered January 5, 2022

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0004230-2020

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY KING, J.: FILED MAY 26, 2023

Appellant, Ramon Blanco, appeals nunc pro tunc from the judgment of

sentence entered in the Montgomery County Court of Common Pleas, following

his bench trial convictions for accidents involving death or personal injury

while not properly licensed (“AIDPI”), aggravated assault by vehicle, reckless

driving, and related offenses.1 We remand this case to the trial court for

specific findings regarding Appellant’s motion for dismissal pursuant to

Pa.R.Crim.P. 600.

The relevant facts of this appeal are as follows. At approximately 11:16

p.m. on August 5, 2019, Jamiee Johnstonbaugh (“Victim”) was driving his

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3742.1(a)(1), 3732.1(a), and 3736(a), respectively.

J-S04020-23

Honda Pilot eastbound on Sumneytown Pike in Lower Gwynedd Township.

Victim stopped for a red light at Sumneytown Pike’s intersection with DeKalb

Pike. When the light changed, Victim proceeded through the intersection. At

the same time, Appellant was approaching the intersection while driving a

Chevrolet Suburban northbound on DeKalb Pike. Despite being controlled by

a red light, Appellant’s vehicle barreled into the intersection and collided with

Victim’s vehicle. After the crash, Appellant fled the scene on foot.

Eyewitnesses helped Victim out of his vehicle, and an ambulance transported

Victim to a local hospital for treatment. Victim suffered various injuries due

to the crash, including broken bones and a concussion.

Police subsequently apprehended Appellant, and the Commonwealth

initially filed a criminal complaint on August 7, 2019. Appellant proceeded to

a preliminary hearing, where the magistrate dismissed certain charges. This

prompted the Commonwealth to refile the criminal complaint on February 26,

2020. The trial court opinion set forth the remaining procedural history as

follows:

The Commonwealth filed a bill of information charging

[Appellant] with the following offenses: [AIDPI] (count 1);

accidents involving damage to attended vehicle or property

(count 2); duty to give information and render aid (count

3); driving without a license (count 4); reckless driving

(count 5); failure to stop at red signal (count 6); aggravated

assault by vehicle (count 7); accidents involving death or

personal injury (count 8); and recklessly endangering

another person (count 9).

On July 29, 2021, [Appellant] filed a motion for dismissal

pursuant to Rule 600(D)(1) and Commonwealth v.

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Harth[, ___ Pa. ___, 252 A.3d 600 (2021)]. On September

10, 2021, the Commonwealth filed a response to this

motion. The court held a hearing regarding this motion on

September 13, 2021. At the conclusion of the hearing, the

court directed the parties to submit memoranda. By order

dated September 22, 2021, the court denied [Appellant’s]

motion.

The court conducted a bench trial on October 13, 2021. At

the conclusion of the trial, the court found [Appellant] guilty

on all counts and directed the completion of a pre-sentence

investigation report.

On January 5, 2022, the court imposed the following

sentence: count 7, 11 months and 14 days to 23 months

and 29 days in the Montgomery County Correctional Facility

(“MCCF”) to date from August 7, 2019; count 1, 9 to 23

months’ incarceration in MCCF to run concurrently with

count 7; count 8, 9 to 23 months’ incarceration in MCCF to

run concurrently with count 7; and count 9, 4 to 23 months’

incarceration in MCCF to run concurrently with count 7. The

court did not impose further penalty with respect to counts

2-6. Thus, the court imposed an aggregate sentence of 11

months and 14 days to 23 months and 29 days’

incarceration in MCCF to date from August 7, 2019.

The court also directed [Appellant] to pay restitution of

$1,000 to Aurea Meneses, the owner of the vehicle operated

by [Appellant] at the time of the accident, and $1,763 to

GEICO.

On January 20, 2022, [Appellant] filed a post-sentence

motion in which he sought: (1) a dismissal of all charges

pursuant to Pa.R.Crim.P. 600 and Commonwealth v.

Harth and (2) judgment of acquittal as to Counts 1, 2, and

7-9 on the basis that the Commonwealth had failed to prove

the required mens rea of criminal negligence or recklessness

for these counts. By order dated May 3, 2022, the court

denied [Appellant’s] post-sentence motion.

On June 3, 2022, [Appellant] filed an appeal from: (1) the

sentence imposed on January 5, 2022 and (2) the May 3,

2022 order denying his post-sentence motion. By order

filed on July 13, 2022, the Superior Court quashed that

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appeal as untimely filed because [Appellant] had filed his

post-sentence motion more than 10 days after the January

5, 2022 imposition of sentence.

On August 3, 2022, [Appellant] filed a [Post Conviction

Relief Act (“PCRA”)2] petition to reinstate appellate rights

nunc pro tunc on the basis that his trial counsel had filed his

post-sentence motion late. By order dated August 5, 2022

the court directed the Commonwealth to file an answer to

this PCRA petition. On August 26, 2022, the Commonwealth

filed a reply stating it did not oppose [Appellant’s] request

for the nunc pro tunc reinstatement of his appeal rights. By

order dated August 26, 2022, the court granted

[Appellant’s] PCRA petition and stated [Appellant] may file

an appeal nunc pro tunc no later than 30 days from the date

of the filing of the order. Pursuant to this order, [Appellant]

filed the instant appeal on September 1, 2022[.]

(Trial Court Opinion, filed 10/24/22, at 1-3) (internal footnotes and some

capitalization omitted). Also on September 1, 2022, the court ordered

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal. Appellant timely filed his Rule 1925(b) statement on September

20, 2022.

Appellant now raises three issues on appeal, which we have reordered

as follows:

Was the evidence insufficient to sustain [Appellant’s]

conviction, in that the Commonwealth’s evidence failed to

prove that [Appellant] was operating his vehicle in a

“criminally negligent” manner at the time of the accident

when it demonstrated only that [Appellant] fell asleep while

driving?

Did the [trial] court err in failing to calculate [Appellant’s]

Pa.R.Crim.P. 600 mechanical run date from the date of filing

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2 42 Pa.C.S.A. §§ 9541-9546.

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of the initial criminal complaint against [Appellant] where

the Commonwealth was not duly diligent in filing a second

complaint?

Did the [trial] court err in denying [Appellant’s] motion to

dismiss pursuant to Pa.R.Crim.P. 600 where the

Commonwealth failed to establish the requisite due

diligence in providing discovery that was necessary before

court delay attributable to COVID-19 emergency orders

could be considered?

(Appellant’s Brief at 3).

As a prefatory matter, the trial court suggests that we must quash this

appeal. The court emphasizes the PCRA provision mandating that a petitioner

must be “currently serving a sentence of imprisonment, probation or parole

for the crime” to be eligible for relief. (Trial Court Opinion at 4) (quoting 42

Pa.C.S.A. § 9543(a)(1)(i)). The court contends that Appellant’s sentence for

the instant offenses expired on August 5, 2021; thus, Appellant had completed

his sentence by the time he filed his PCRA petition on August 3, 2022. The

court concludes that Appellant “was not eligible for PCRA relief,” and it “lacked

jurisdiction” to consider the petition and reinstate Appellant’s direct appeal

rights nunc pro tunc. (Id. at 6) (emphasis added).

In response, Appellant cites Commonwealth v. Fields, 197 A.3d 1217,

1222 (Pa.Super. 2018) (en banc) (plurality), appeal denied, 651 Pa. 593, 206

A.3d 1025 (2019), for the proposition that “[t]he plain language of section

9543 does not mention the jurisdiction of the PCRA court[.]” (Appellant’s Brief

at 21). Appellant maintains that the court possessed jurisdiction to grant

relief, which the Commonwealth did not oppose. Absent some action by the

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Commonwealth, Appellant insists that any challenge to the grant of PCRA relief

is waived, and “the only matter currently before this … Court is [Appellant’s]

direct appeal filed [nunc pro tunc] on September 1, 2022.” (Id.) We agree.

“[I]n drafting the PCRA, the General Assembly included 42 Pa.C.S. §

9545, a separate provision addressing ‘Jurisdiction and proceedings.’” Fields,

supra at 1222. “Had the General Assembly intended the eligibility

requirements of section 9543 to be jurisdictional prerequisites, it would have

included that provision within section 9545.” Id. “Accordingly, we hold that

the requirements set forth in section 9543 establish only a petitioner’s

eligibility for post-conviction relief, and do not implicate the PCRA court’s

jurisdiction to act on a petition.” Id. at 1223.

Here, this Court’s interpretation of the relevant provisions of the PCRA

refutes the trial court’s conclusion that it “lacked jurisdiction” to act on

Appellant’s petition. See id. To the extent that the PCRA court might have

erred in granting relief where Appellant was ineligible, the Commonwealth

waived any challenge to the PCRA court’s ruling by failing to appeal from the

order granting nunc pro tunc relief. See Commonwealth v. Bryant, 566 Pa.

307, 780 A.2d 646 (2001) (reiterating that PCRA court’s order granting relief

in part was final order that petitioner or Commonwealth could have appealed,

and failure to file notice of appeal would have waived review of PCRA court’s

decision). Consequently, we proceed to address the issues Appellant now

raises in this nunc pro tunc appeal from his judgment of sentence.

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In his first issue, Appellant claims that the offense of AIDPI requires a

mens rea of “criminal negligence,” and the offenses of aggravated assault by

vehicle and reckless driving “share an equivalent mens rea of recklessness

and gross negligence.” (Appellant’s Brief at 35, 37). Appellant insists that

the Commonwealth failed to prove these mental states where “the only

evidence presented … was [Appellant’s] statement that he had fallen asleep

while driving.”3 (Id. at 39). Appellant also argues that “the fact that [he]

was speeding shortly before the crash” does not establish the requisite

recklessness. (Id. at 40). Appellant concludes that the Commonwealth

presented insufficient evidence to support these convictions, and he is entitled

to an arrest of judgment for these offenses. We disagree.

Our standard of review for sufficiency claims is as follows:

The standard we apply in reviewing the sufficiency of the

evidence is whether viewing all the evidence admitted at

trial in the light most favorable to the verdict winner, there

is sufficient evidence to enable the fact-finder to find every

element of the crime beyond a reasonable doubt. In

applying [the above] test, we may not weigh the evidence

and substitute our judgment for the fact-finder. In addition,

we note that the facts and circumstances established by the

Commonwealth need not preclude every possibility of

innocence. Any doubts regarding a defendant’s guilt may

be resolved by the fact-finder unless the evidence is so weak

and inconclusive that as a matter of law no probability of

fact may be drawn from the combined circumstances. The

Commonwealth may sustain its burden of proving every

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3 At trial, a detective from the Lower Gwynedd Township Police Department

testified that he interviewed Appellant about the collision on August 6, 2019.

(See N.T. Trial, 10/13/21, 105). During the interview, Appellant said he “fell

asleep at the wheel, at which point the accident happened.” (Id. at 115).

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element of the crime beyond a reasonable doubt by means

of wholly circumstantial evidence. Moreover, in applying the

above test, the entire record must be evaluated and all

evidence actually received must be considered. Finally, the

[trier] of fact while passing upon the credibility of witnesses

and the weight of the evidence produced, is free to believe

all, part or none of the evidence.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal

denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.

Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).

The Motor Vehicle Code (“MVC”) defines the offense of AIDPI as follows:

§ 3742.1. Accidents involving death or personal

injury while not properly licensed

(a) Offense defined.—A person whose operating

privilege was disqualified, canceled, recalled, revoked or

suspended and not restored or who does not hold a valid

driver’s license and applicable endorsements for the type

and class of vehicle being operated commits an offense

under this section if the person was the driver of any vehicle

and:

(1) caused an accident resulting in injury or

death of a person

75 Pa.C.S.A. § 3742.1(a).

By its express terms, the statutory offense contains no

scienter requirement. In [Commonwealth v. Hurst, 889

A.2d 624 (Pa.Super. 2005)], this Court examined what level

of culpability was required for a conviction under the

statute. There, the appellant entered an intersection

against a red light and struck a police vehicle that was

proceeding on a green light. We determined that AIDPI was

not an absolute liability crime, and that criminal negligence

was the minimum mens rea the Commonwealth must

establish to prove AIDPI beyond a reasonable doubt.

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Commonwealth v. Kutzel, 64 A.3d 1114, 1117-18 (Pa.Super. 2013).4

“A person acts negligently with respect to a material element of an

offense when he should be aware of a substantial and unjustifiable risk that

the material element exists or will result from his conduct.” 18 Pa.C.S.A. §

302(b)(4). “The risk must be of such a nature and degree that the actor’s

failure to perceive it, considering the nature and intent of his conduct and the

circumstances known to him, involves a gross deviation from the standard of

care that a reasonable person would observe in the actor’s situation.” Id.

In determining whether a person’s actions constitute

criminal negligence one must obviously consider the entire

situation; and we hold that the determination whether those

actions qualify as a “gross deviation” within the meaning of

the statute, can depend upon the nature of the standard

applicable to a given situation.

Kutzel, supra at 1119 (quoting Commonwealth v. Lobiondo, 501 Pa. 599,

606, 462 A.2d 662, 666 (1983)).

The MVC defines the offense of aggravated assault by vehicle as follows:

§ 3732.1. Aggravated assault by vehicle

(a) Offense.—Any person who recklessly or with gross

negligence causes serious bodily injury to another person

while engaged in the violation of any law of this

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4Our Legislature amended Section 3742.1 in 2018. See Act of Oct. 24, 2018,

P.L. 925, No. 153, § 3, effective in 60 days. The version of the statute in

effect at the time of Kutzel defined the offense of AIDPI as follows: “A person

whose operating privilege was disqualified, canceled, recalled, revoked or

suspended and not restored or who does not hold a valid driver’s license and

applicable endorsements for the type and class of vehicle being operated

commits an offense under this section if the person was the driver of any

vehicle and caused an accident resulting in injury or death of any person.”

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Commonwealth or municipal ordinance applying to the

operation or use of a vehicle or to the regulation of traffic,

except section 3802 (relating to driving under influence of

alcohol or controlled substance), is guilty of aggravated

assault by vehicle, a felony of the third degree when the

violation is the cause of the injury.

75 Pa.C.S.A. § 3732.1(a).

“A person acts recklessly with respect to a material element of an

offense when he consciously disregards a substantial and unjustifiable risk

that the material element exists or will result from his conduct.” 18 Pa.C.S.A.

§ 302(b)(3). “The risk must be of such a nature and degree that, considering

the nature and intent of the actor’s conduct and the circumstances known to

him, its disregard involves a gross deviation from the standard of conduct that

a reasonable person would observe in the actor’s situation.” Id.

The MVC defines the offense of reckless driving as follows:

§ 3736. Reckless driving

(a) General rule.—Any person who drives any vehicle in

willful or wanton disregard for the safety of persons or

property is guilty of reckless driving.

75 Pa.C.S.A. § 3736(a).

[T]he mens rea necessary to support the offense of reckless

driving is a requirement that [the defendant] drove in such

a manner that there existed a substantial risk that injury

would result from his driving, i.e., a high probability that a

motor vehicle accident would result from driving in that

manner, that he was aware of that risk and yet continued to

drive in such a manner, in essence, callously disregarding

the risk he was creating by his own reckless driving.

Commonwealth v. Bullick, 830 A.2d 998, 1003 (Pa.Super. 2003).

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Instantly, the Commonwealth presented witnesses who described

Appellant’s driving on the night of the crash. Tyler Mitchell testified that he

was driving northbound on DeKalb Pike shortly before the collision. (See N.T.

Trial at 84). While traveling in the center lane, Mr. Mitchell saw “a person

from behind me, from a high rate of speed, basically flying, and basically

swerved towards and around me” on the right. (Id. at 85). Mr. Mitchell

specified that the vehicle that passed him was “definitely a Suburban.” (Id.

at 87). Mr. Mitchell described the aggressive maneuvers performed by the

Suburban: “Like I say, it cut us off, and it kind of like veered me off to the

side a little bit[.]” (Id. at 87). Mr. Mitchell also explained that he was driving

“about the speed limit,” so he knew the Suburban was moving at a higher rate

of speed to pass him. (Id. at 88).

Mr. Mitchell did not actually see the collision between Appellant and

Victim’s vehicles. Seconds after the crash, Mr. Mitchell saw the accident

scene. (Id. at 89). Upon arriving at the intersection, the light controlling Mr.

Mitchell’s lane of travel was red. (Id.) Thereafter, Mr. Mitchell stopped to

render aid to Victim. (Id. at 90). While assisting Victim, Mr. Mitchell saw the

driver of the Suburban flee the scene. (Id. at 91).

The Commonwealth also presented testimony from Thaddeus Brown,

who was driving home from work on the night of the collision. Mr. Brown was

driving eastbound on Sumneytown Pike when he stopped for a red light at the

intersection with DeKalb Pike. (Id. at 64-65). Mr. Brown “was the second car

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at the traffic light,” with Victim’s vehicle in front of him. (Id. at 65). When

the light turned green, Victim and Mr. Brown’s vehicles proceeded to the

intersection. Mr. Brown unequivocally testified that Victim had a green light

to proceed.5 (Id. at 69). At that point, Mr. Brown saw the Suburban “go

around the [northbound] traffic” that was stopped for a red light on DeKalb

Pike. (Id. at 67). The Suburban entered “the shoulder area” of the road to

execute this maneuver. (Id.) Thereafter, the Suburban collided with Victim’s

vehicle. The Suburban did not attempt to brake before the collision. (Id. at

73).

After the collision, Mr. Brown stayed at the scene because “[i]t was a

horrific crash, from what I witnessed, so I just wanted to make sure everyone

was okay.” (Id. at 71). Mr. Brown explained that the impact of the crash

caused the Suburban to ricochet off Victim’s vehicle and hit a telephone poll.

When the Suburban came to a stop, Mr. Brown watched the driver climb out

through the window and run away from the scene.

Here, the record belies Appellant’s assertion that he simply fell asleep

at the wheel. Mr. Mitchell’s testimony established that Appellant conducted a

high-speed, passing maneuver on the right side of Sumneytown Pike before

its intersection with DeKalb Pike. After passing Mr. Mitchell, Appellant entered

the shoulder of the road to pass other cars that had stopped at the intersection

____________________________________________

5 Victim also testified that he proceeded through the intersection on a green

light. (See N.T. Trial at 54).

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for a red light. Without braking, Appellant then ploughed into Victim’s vehicle,

which had the right-of-way to proceed through the intersection. Under these

circumstances, Appellant demonstrated the criminal negligence necessary to

support his conviction for AIDPI. See Kutzel, supra; 18 Pa.C.S.A. §

302(b)(4). Likewise, the facts adduced at trial are proof of the recklessness

necessary to support the convictions for aggravated assault by vehicle and

reckless driving. See Bullick, supra; 18 Pa.C.S.A. § 302(b)(3). Therefore,

Appellant is not entitled to relief on his first claim.

Appellant’s second and third issues are related, and we address them

together. Appellant notes that the Commonwealth first filed a criminal

complaint on August 7, 2019, and the Rule 600 mechanical run date was

August 6, 2020. Appellant claims that the Commonwealth’s subsequent

inaction resulted in the dismissal of certain charges after the preliminary

hearing, which delayed the prosecution. Appellant insists that the

Commonwealth created additional delay by failing to refile the criminal

complaint in a timely manner. Because the Commonwealth did not proceed

with due diligence, Appellant contends that the adjusted Rule 600 run date

should not be calculated by utilizing the filing date of the second criminal

complaint.

Appellant also observes that additional delays plagued this case after

the refiling of the complaint. Appellant acknowledges that some delay was

attributable to the declaration of a judicial emergency in the wake of COVID-

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19, and he concedes that the period from March 12, 2020 through June 1,

2020 is excludable under Rule 600. Nevertheless, Appellant argues that “none

of the ensuing 500 days between June 1, 2020 and the commencement of

[Appellant’s] trial can be attributed to the judicial emergency.” (Appellant’s

Brief at 32-33). Rather, Appellant asserts that “the Commonwealth was never

ready to proceed to trial throughout this period, since photographs remained

outstanding in discovery[.]” (Id. at 33). Mindful of these delays, Appellant

calculates an adjusted run date of October 25, 2020. Appellant concludes that

trial commenced after this date, and the court should have granted his Rule

600 motion. Based upon our review of the record, additional action is

required.

The following principles apply to our review of a speedy trial claim:

Our standard of review in a Rule 600 issue is whether the

trial court abused its discretion. Our scope of review when

determining the propriety of the trial court is limited to the

evidence in the record, the trial court’s Rule 600 evidentiary

hearing, and the trial court’s findings. We must also

view the facts in the light most favorable to the prevailing

party[.]

Commonwealth v. Risoldi, 238 A.3d 434, 449 n.14 (Pa.Super. 2020),

appeal denied, ___ Pa. ___, 244 A.3d 1230 (2021) (emphasis added).

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

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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. Martz, 232 A.3d 801, 809-10 (Pa.Super. 2020) (quoting

Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa.Super. 2011)).

Rule 600 sets forth the speedy trial requirements and provides in

pertinent part:

Rule 600. Prompt Trial

(A) Commencement of Trial; Time for Trial

* * *

(2) Trial shall commence within the following time

periods.

(a) Trial in a court case in which a written

complaint is filed against the defendant shall commence

within 365 days from the date on which the complaint is

filed.

* * *

(C) Computation of Time

(1) For purposes of paragraph (A), periods of delay at

any stage of the proceedings caused by the Commonwealth

when the Commonwealth has failed to exercise due

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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.

* * *

In cases in which the Commonwealth files a criminal

complaint, withdraws that complaint, and files a second

complaint, the Commonwealth will be afforded the benefit

of the date of the filing of the second complaint for purposes

of calculating the time for trial when the withdrawal and re-

filing of charges are necessitated by factors beyond its

control, the Commonwealth has exercised due diligence,

and the refiling is not an attempt to circumvent the time

limitation of Rule 600. See Commonwealth v. Meadius,

582 Pa. 174, 870 A.2d 802 (2005).

Pa.R.Crim.P. 600(A)(2)(a), (C)(1), and Comment.

Due diligence is a fact-specific concept that must be

determined on a case-by-case basis. Due diligence does not

require perfect vigilance and punctilious care, but rather a

showing by the Commonwealth that a reasonable effort has

been put forth. Due diligence includes, inter alia, listing a

case for trial prior to the run date, preparedness for trial

within the run date, and keeping adequate records to ensure

compliance with Rule 600. Periods of delay caused by the

Commonwealth’s failure to exercise due diligence must be

included in the computation of time within which trial must

commence.

Martz, supra at 810-11 (quoting Commonwealth v. Moore, 214 A.3d 244,

248-49 (Pa.Super. 2019), appeal denied, ___ Pa. ___, 224 A.3d 360 (2020))

(internal citations and quotation marks omitted).

Recently, this Court addressed the concepts of “mechanical” and

“adjusted” Rule 600 run dates, as well as the impact of local emergency orders

on the calculation of these dates:

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In a Rule 600 analysis, the “mechanical run date” is 365

days after the complaint was filed. The “adjusted run date”

is then calculated by adding any time that is “excluded from

the computation” under Rule 600(C)(1). If a defendant is

not brought to trial by the adjusted run date, the case is

dismissed. Two key cases guide our analysis here.

First, in Harth, our Supreme Court held that “before a trial

court excludes time from its Rule 600 time computation on

the basis of ‘judicial delay,’” the Commonwealth must

“demonstrate that it acted with due diligence.” That is:

[I]n ruling on a defendant’s Rule 600 motion to

dismiss, a trial court must first determine whether the

Commonwealth has met its obligation to act with due

diligence throughout the life of the case; if the

Commonwealth meets its burden of proving due

diligence, only then may the trial court rely upon its

own congested calendar or other scheduling problems

as justification for denying the defendant's motion.

Second, this Court considered the effect of local emergency

orders in Commonwealth v. Carl, 276 A.3d 743

(Pa.Super. 2022). The issue in Carl was whether a period

of a local judicial emergency would be excluded from the

Rule 600 computation, i.e., whether to add the days of the

judicial emergency to the run date. The relevant order

contained two provisions: “Suspend statewide rules

pertaining to the rule-based right of criminal defendants to

a prompt trial,” and: “Any postponement caused by the

judicial emergency shall be considered a court

postponement and shall constitute excludable time for

purposes of the application of Rule 600.” This Court read

the first provision as an absolute, unqualified suspension

and the second provision as a supplemental rule for

additional postponements. The second provision set a local

policy to address ongoing delays. Because the first

provision unambiguously suspended Rule 600, the days of

that suspension should have been added to the run date

regardless of the Commonwealth’s diligence.

Harth and Carl frame the inquiry for the effect of

emergency orders on Rule 600. If an order unambiguously

suspends Rule 600 without qualification, then the period of

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the suspension is added to the run date without considering

the Commonwealth’s diligence. Alternatively, if an order

characterizes a delay as a court postponement, then that

period is only excluded if the trial court determines after a

hearing that the Commonwealth exercised due diligence

through the life of the case.

Commonwealth v. Lear, 290 A.3d 709, 718-19 (Pa.Super. 2023) (internal

citations and footnote omitted).

Utilizing this framework, Lear analyzed the specific orders related to the

2020 judicial emergency in Montgomery County.

On March 16, 2020, Montgomery County declared a judicial

emergency and ordered that the operation of Rule 600

would be suspended “during the period of the local judicial

emergency.” On March 31, 2020, Montgomery County

extended the judicial emergency to April 30, 2020, again

ordering Rule 600 to be suspended. On April 14, 2020,

Montgomery County extended the judicial emergency to

May 31, 2020.

On May 5, 2020, Montgomery County entered an order

rescinding its previous orders effective May 31, 2020. It

listed virus-related protocols that would be effective June 1,

2020.

On May 28, 2020, Montgomery County declared that the

local judicial emergency would be extended “until further

Order of Court.” It ordered that its declaration included the

provisions of the order from May 5, 2020.

On June 3, 2020, Montgomery County ordered “that any

postponement of criminal case scheduling caused by the

declaration of this judicial emergency, from March 12, 2020

through the expiration of the judicial emergency, shall be

considered a court postponement and shall constitute

excludable time for purposes of the application of Rule of

Criminal Procedure 600.”

* * *

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[T]he plain language of the orders reflects that Montgomery

County did not continue its unqualified suspension of Rule

600 beyond May 31, 2020. On May 5, 2020, Montgomery

County ordered that its previous orders would be rescinded

effective May 31, 2020. There were no later orders

suspending Rule 600. Instead, Montgomery County opted

to order on June 3, 2020, that any emergency-related delay

“shall be considered a court postponement and shall

constitute excludable time” under Rule 600(C).

As in Carl, the plain meaning of the “court postponement”

provision was to establish a framework for applying Rule

600 to any postponement caused by the local judicial

emergency. Unlike in Carl, however, the Montgomery

County orders did not separately provide that Rule 600

would be suspended after May 31, 2020.

Id. at 719-20 (internal citations omitted).

Instantly, the trial court denied Appellant’s Rule 600 motion on

September 22, 2021. The order stated that the court had considered the

arguments raised at the Rule 600 hearing, Appellant’s dismissal motion, the

Commonwealth’s response, and the memoranda of law submitted by the

parties.6 The order, however, contained no additional findings regarding the

Commonwealth’s due diligence or any periods of excludable delay. Likewise,

the current Rule 1925(a) opinion offers no further insight into the reasoning

behind the denial of Appellant’s Rule 600 motion. On this record, we do not

have an adequate basis for evaluating whether the court erred in issuing its

ruling. See Risoldi, supra. Thus, remand is required.

____________________________________________

6The certified record does not include the memoranda of law, and there are

no docket entries memorializing the filing of the memoranda.

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We also note that the parties have yet to evaluate the Lear decision.

This is significant because the parties grappled with issues addressed in Lear.

For example, the court ordered the parties to file their memoranda of law

immediately after the Rule 600 hearing. In this order, the court directed the

parties to address “whether Commonwealth v. Harth is applicable to periods

of judicial delay occasioned by the emergency orders issued as a result of the

COVID-19 pandemic.” (Order, filed 9/13/21, at 1). Now that there is

guidance from this Court, questions concerning the applicability of Harth need

not hover over the resolution of this matter.

Because we cannot say whether consideration of Lear might impact the

court’s prior determination, the most prudent course of action is to remand

the matter for a supplemental Rule 600 hearing. At that time, the parties can

evaluate the impact of Lear. After additional argument, the court must

identify each period of delay and determine whether it is excludable under

Rule 600, as well as whether the Commonwealth acted with due diligence.

See Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014)

(remanding for trial court to determine whether certain period of delay was

attributable to Commonwealth for Rule 600 purposes). The court should make

specific due diligence findings for the periods of delay that came before and

after the refiling of the charges.

Case remanded. Jurisdiction is relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2023

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