J-S28006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEVANTE MATTHEWS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 71 WDA 2023

Appeal from the Judgment of Sentence Entered January 3, 2023

In the Court of Common Pleas of McKean County 

Criminal Division at No(s): CP-42-CR-0000110-2021

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: November 2, 2023

Devante Matthews appeals from the judgment of sentence imposed 

following his conviction of possession of a small amount of marijuana. 

Matthews argues that the Commonwealth violated Pa.R.Crim.P. 600 by failing 

to exercise due diligence in prosecuting the case against him in a timely 

manner. We affirm.

On January 20, 2021, the Commonwealth charged Matthews at two 

separate cases with possession of a small amount of marijuana and possession 

of drug paraphernalia. Matthews was arraigned and released on bail. On April 

5, 2021, the Commonwealth filed a motion to consolidate the cases; the trial 

court later denied the motion. On April 26, 2021, Matthews filed a motion to 

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* Former Justice specially assigned to the Superior Court.
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suppress evidence. The trial court scheduled a hearing on the motion for June 

4, 2021.

On May 4, 2021, Matthews filed a motion to continue the suppression 

hearing due to unavailability of his counsel. Matthews indicated that the 

Commonwealth did not oppose the motion and that the requested continuance 

shall run against the defense under Rule 600. The trial court granted the 

motion to continue and the new hearing was scheduled for June 29, 2021. 

Likewise, on May 4, 2021, Matthews filed a motion to continue the last day to 

enter a plea. Notably, within the motion, Matthews acknowledged that the 

Commonwealth did not oppose the motion, and that the delay from the 

request should run against the defense for Rule 600 purposes. The trial court 

granted the motion to continue until July 27, 2021. The trial court held the 

suppression hearing on June 29, 2021, after which the parties each filed briefs 

in support of their position. Ultimately, the trial court denied the suppression 

motion on September 21, 2021. 

While the suppression motion was pending, on July 26, 2021, Matthews 

filed another motion to continue the last day to plea and further noted that 

the Commonwealth did not oppose the motion and that the time should run 

against the defense for Rule 600 purposes. The trial court granted the motion, 

and noted the new last day to plea was September 30, 2021, and that the 

continuance was attributed to Matthews for Rule 600 calculations. 
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On September 29, 2021, Matthews filed another motion to continue last 

day to plea, again noting that the Commonwealth did not oppose the motion 

and that the time should count against him for Rule 600 purposes. The trial 

court granted the motion and rescheduled the last day to plea to October 28, 

2021. On that date, Matthews rejected the plea deal and the trial court ordered 

the Commonwealth to list the matters for a jury trial. This order was filed and 

docketed on October 29, 2021.

No action occurred on the matter until June 14, 2022, when the 

Commonwealth filed a motion to amend information, withdrawing the 

possession of drug paraphernalia charge. Subsequently, on September 2, 

2022, the Commonwealth filed a motion for status conference for non-jury 

trial. That same day, the trial court scheduled the matter for a non-jury trial 

on November 9, 2022. On October 14, 2022, the Commonwealth filed a 

motion to move up the non-jury trial. The trial court denied the motion. On 

November 1, 2022, Matthews filed a motion to dismiss pursuant to Rule 600. 

Following a hearing, the trial court denied the motion on November 4, 2022. 

The matter proceeded to a non-jury trial on January 3, 2023, after which 

the trial court found Matthews guilty of possession of a small amount of 

marijuana. The trial court ordered him to pay a fine of $150 plus court costs. 

This timely appeal followed.
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On appeal, Matthews raises the following question for our review: “Did 

the trial court err in denying [Matthews’s] motion to dismiss this matter 

pursuant to Pa.R.Crim.P. 600?” Appellant’s Brief at 4.

Our standard of review of a trial court’s denial of a Rule 600 motion is 

as follows:

In evaluating Rule 600 issues, our 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 
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accused, but the collective right of the community to vigorous law 

enforcement as well.

Commonwealth v. Faison, 297 A.3d 810, 821 (Pa. Super. 2023) (citation, 

brackets, and emphasis omitted).

Matthews contends that the non-jury trial was scheduled beyond the 

adjusted run date, the Commonwealth did not exercise due diligence, and the 

trial court’s decision should be reversed. See Appellant’s Brief at 13-15, 20. 

Matthews initially concedes that that he delayed the proceedings by filing a 

motion to suppress on April 26, 2021, and seeking continuances on his last 

day to plea proceedings until October 28, 2021; therefore, the period between 

these dates are excluded from Rule 600 calculations. See id. at 13-14. 

Likewise, Matthews highlights that judicial emergency orders due to Covid-19 

between December 15, 2020, and July 15, 2021, also would be excludable 

from Rule 600 calculations. See id. at 14. Nevertheless, Matthews argues that 

even if all of the time between the filing of the complaint and the last day to 

plea proceedings were excluded, a period of 377 days passed between October 

28, 2021, the day he rejected the plea deal, and November 9, 2022, when the 

non-jury trial was originally scheduled. See id. at 14-15. 

According to Matthews, the Commonwealth did not exercise due 

diligence in bringing the case to trial in a timely manner and the case should 

be dismissed. See id. at 16, 17-18. Matthews highlights that only if the 

Commonwealth exhibited due diligence can a court’s congested calendar be 

used as justification for denying a Rule 600 motion. See id. at 16. Matthews 
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asserts that after his rejection of a plea, the Commonwealth should have listed 

the matter for a jury trial, but failed to do anything for six months until it filed 

a motion to amend the criminal information. See id. at 17-19. Matthews 

argues that the Commonwealth only sought to list the case for a non-jury trial 

on September 2, 2022, which was 80 days after amending the criminal 

information. See id. at 18-19. Matthews notes that on September 2, 2022, 

the trial court scheduled trial for November 9, 2022, but that the 

Commonwealth waited 43 days to seek an earlier trial date. See id. at 18, 20. 

Matthews concludes that this evidence established that the Commonwealth 

did not exercise due diligence in bringing the matter to trial. See id. at 20.

Rule 600 provides 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). Further, 

“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,” while “[a]ny other periods of delay shall be excluded from the 

computation.” Pa.R.Crim.P. 600(C)(1);

1 see also Pa.R.Crim.P. 600, cmt. (“If 

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1

In 2012, the Pennsylvania Legislature enacted a new Rule 600, effective as 

of July 1, 2013. The general dictates of new Rule 600 remained the same as 

they were prior to adoption, but the prior distinctions between excludable time 

and excusable delay were abandoned for streamlined review of 

Commonwealth’s due diligence, with a failure to exercise due diligence being 

(Footnote Continued Next Page)
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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”). “[T]he 

Commonwealth is required to demonstrate that it acted with due diligence 

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

Commonwealth v. Harth, 252 A.3d 600, 617 (Pa. 2021) (emphasis and 

footnote omitted).

“Due diligence is fact-specific, to be determined case-by-case; it does 

not require perfect vigilance and punctilious care, but merely a showing the 

Commonwealth has put forth a reasonable effort.” Commonwealth v. 

Selenski, 994 A.2d 1083, 1089 (Pa. 2010). Due diligence must be 

demonstrated by a preponderance of the evidence. See Wiggins, 248 A.3d 

at 1289. Rule 600 “expressly calls upon a trial court to assess the 

Commonwealth’s due diligence throughout the life of a case, when faced with 

a claim that the Commonwealth violated a defendant’s speedy trial rights.” 

Harth, 252 A.3d at 617; see also Pa.R.Crim.P. 600(C)(1) (stating that 

“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.”).

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considered “includable time.” Commonwealth v. Wiggins, 248 A.3d 1285, 

1289 (Pa. Super. 2021).
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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.” Harth, 252 A.3d at 615.

Here, the mechanical run date — 365 days from the date of the filing of 

the complaint — was January 20, 2022. Next, we must address each of the 

time periods in question to determine whether the Commonwealth exercised 

due diligence in bringing the case to trial. Preliminarily, Matthews does not 

dispute that the President Judge of the McKean County Court of Common Pleas 

extended the judicial emergency due to the Covid-19 pandemic and 

suspended Rule 600, including between December 15, 2020, and July 15, 

2021. See Rule 600 Motion, 11/1/22, at 3 (unnumbered) (“In McKean County 

and in response to the Covid-19 pandemic, there were periods of judicial 

emergency subject to either local Judicial Emergency or the statewide Order, 

for which Rule 600 was suspended, including ... between December 15, 2020 

and July 15, 2021”); see also In re General Statewide Judicial 

Emergency, 234 A.3d 408, 409 (Pa. 2020) (per curiam) (empowering each 

judicial district’s president judge to enter judicial emergency declarations, 

which could “[s]uspend statewide rules pertaining to the rule-based right of 

criminal defendants to a prompt trial.”); In re General Statewide Judicial 
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Emergency, 228 A.3d 1281, 1282 (Pa. 2020) (per curiam) (stating that “the 

President Judge specifically shall have the authority to suspend the operation 

of Rule of Criminal Procedure 600 within a judicial district ... The purport of 

the suspension will be that the time period of the local judicial emergency (or 

a shorter time period if specified) shall be excluded from the time computation 

under Rule of Criminal Procedure 600(C)” (emphasis omitted)). Both the 

Commonwealth and the trial court agree that the period of time between the 

filing of the complaint, January 20, 2021, and the end of the judicial 

emergency, July 15, 2021, a total of 176 days, is excludable from Rule 600 

calculations. See Trial Court Opinion, 11/21/22, at 1-2; Brief for the 

Commonwealth at 5. Based upon this record, we conclude that the 176 days 

is excludable from the Rule 600 calculation. See Commonwealth v. Carl, 

276 A.3d 743, 751 (Pa. Super. 2022) (noting that an order suspending Rule 

600 without qualification automatically adds time to the run date without 

considering the Commonwealth’s due diligence during this time period).

2

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2 We note that in Commonwealth v. Lear, 290 A.3d 709 (Pa. Super. 2023), 

appeal granted in part, 2023 WL 6416182 (Pa. filed Oct. 3, 2023), following 

several emergency Covid-19 orders suspending Rule 600, the Montgomery 

County Court of Common Pleas rescinded the emergency orders and treated 

emergency-related delays as court postponements. Lear, 290 A.3d at 719-

20. The Lear Court differentiated between orders unambiguously suspending 

Rule 600 without qualification, which is added to the run date without 

considering the Commonwealth’s due diligence, and orders characterizing a 

delay as a court postponement, which is only added to the run date if the 

Commonwealth exercised due diligence throughout the life of the case. See 

(Footnote Continued Next Page)
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Significantly, the judicial emergencies overlap with Matthews’s filing of 

a pre-trial motion to suppress and his continuances for the last day to plead 

proceedings. We will address any excludable time starting on July 15, 2021, 

when the judicial emergency concluded. Here, Matthews filed a motion to 

suppress on April 26, 2021, the trial court held a hearing, the Commonwealth 

and Matthews filed briefs in support of their position, and the trial court denied 

the motion on September 21, 2021. The record confirms that the 

Commonwealth did not cause any delays in responding to the pretrial motion 

or that it failed to act diligently. See Commonwealth v. Cook, 865 A.2d 869, 

875-76 (Pa. Super. 2004) (finding excludable a delay required to litigate a

pretrial motion if the Commonwealth demonstrates that it exercised due 

diligence in opposing or responding to the pretrial motion). Therefore, the time 

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id. at 719. Because Montgomery County treated emergency-related delays as 

court postponements, the Lear Court concluded that these delays would be 

excluded from Rule 600 computations if the trial court found “that the 

Commonwealth exercised due diligence.” Id. at 720. This Court remanded the 

case for a Rule 600 hearing, where the Commonwealth would be required to 

prove its due diligence for those periods of time. See id. The Supreme Court 

recently granted allowance of appeal to determine whether a court must 

assess the Commonwealth’s due diligence during the Covid-19 pandemic 

before it excludes the delay due to a local judicial emergency order. See 

Commonwealth v. Lear, 2023 WL 6416182, *1 (Pa. filed Oct. 3, 2023).

Here, the parties agree that the trial court suspended Rule 600 due to the 

judicial emergency; therefore, this case does not run afoul of Lear. See Lear, 

290 A.3d at 719 (“If an order unambiguously suspends Rule 600 without 

qualification, then the period of the suspension is added to the run date 

without considering the Commonwealth’s diligence.” (citation omitted)).
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between July 15, 2021, and September 21, 2021, 68 days, is excludable from 

Rule 600 calculations.

Likewise, Matthews concedes that he sought various continuances on 

the last day to plea proceedings, all of which included language that the time 

should count against the defense for Rule 600 purposes. Ultimately, Matthews 

rejected the plea offer, and the trial court entered an order on October 29, 

2021, requiring the Commonwealth to list the case for trial. Therefore, the 

time between the denial of the suppression motion, September 21, 2021, and 

the rejection of the plea deal on October 29, 2021, 38 days, is excludable. 

See Commonwealth v. Anderson, 959 A.2d 1248, 1249 (Pa. Super. 2008)

(noting that time requested or agreed to by defense to consider a plea is 

excludable). Accordingly, the 282 days between January 20, 2021, and 

October 29, 2021, are excludable from the Rule 600 calculation, and the new 

adjusted run date would be October 29, 2022.

No action occurred on this case until June 14, 2022, when the 

Commonwealth filed a motion to amend information to withdraw the 

possession of drug paraphernalia charge. Pointedly, the Commonwealth did 

not seek to schedule a trial at this time. It was only on September 2, 2022, 

where the Commonwealth sought to schedule a non-jury trial. Therefore, 

because the Commonwealth failed to take any action to schedule the trial 

between October 29, 2021, and September 2, 2022, we conclude that the 

Commonwealth did not act with due diligence for these 308 days, and this 
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time was attributable to the Commonwealth. See Commonwealth v. Mills, 

162 A.3d 323, 324 (Pa. 2017) (finding that “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.”).

Notably, on September 2, 2022, the trial court scheduled the trial on 

November 9, 2022, past the adjusted run date. Thereafter, on October 14, 

2022, the Commonwealth filed a motion to move up the non-jury trial, which 

the trial court denied due to the congested calendar. See Trial Court Opinion, 

11/4/22, at 4 (stating that “the court’s schedule was full and there were no 

trial dates prior to November 9, 2022.”). It is well settled that judicial delay 

— caused by the trial court’s congested calendar or other scheduling 

difficulties — is excused from the 365-day calculation when the 

Commonwealth demonstrates, by a preponderance of the evidence, that it 

exercised due diligence in bringing the defendant’s case to trial. See Harth,

252 A.3d at 618 (noting that “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.”); Mills, 162 A.3d at 325 (stating, “where a trialready prosecutor must wait several months due to a [trial] court calendar, the 

time should be treated as ‘delay’ for which the Commonwealth is not 

accountable”). Here, the trial court found that because the Commonwealth 

had kept track of the adjusted run date and requested an earlier trial date, 
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the Commonwealth had exercised due diligence. See Trial Court Opinion, 

11/4/22, at 4. Under these circumstances, we cannot conclude that the trial 

court abused its discretion in finding the Commonwealth exercised due 

diligence where it attempted to schedule trial approximately 2 months before 

the run date and filed a motion to move up the trial. See Commonwealth v. 

Aaron, 804 A.2d 39, 44 (Pa. Super. 2002) (en banc) (stating that where 

compliance with Rule 600 is at issue, the Commonwealth must be proactive 

and “do everything reasonable within [its] power to see that the case is tried 

on time.” (citation omitted)); see also Selenski, 994 A.2d at 1089.

Therefore, the trial court did not err in denying Matthews’s Rule 600 motion.

See Pa.R.Crim.P. 600, cmt. (“If the delay occurred as the result of 

circumstances beyond the Commonwealth’s control and despite its due 

diligence, the time is excluded”).

Judgment of sentence affirmed.

 11/2/2023