J-S25036-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JEREMY DAVID CLARK

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1706 WDA 2017

Appeal from the Order Entered November 6, 2017

In the Court of Common Pleas of McKean County 

Criminal Division at No(s): CP-42-CR-0000593-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 7, 2018

The Commonwealth of Pennsylvania appeals the order of the Court of 

Common Pleas of McKean County, entered November 6, 2017, granting the 

motion of Jeremy David Clark pursuant to Pa.R.Crim.P. 600 and dismissing 

the Commonwealth’s case against Clark. The Commonwealth had charged 

Clark with two counts of statutory sexual assault and one count each of 

aggravated indecent assault and indecent assault.1 After careful review, we 

affirm.

A criminal complaint was filed against Clark on October 4, 2015. Clark’s 

preliminary hearing was originally scheduled for October 15, 2015, but,

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1

 18 Pa.C.S. §§ 3122.1(b), 3125(a)(8), and 3126(a)(7), respectively.
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pursuant to his request, it was continued until October 21, 2015. Again at his 

request, the preliminary hearing was continued until November 18, 2015.

Clark’s “last day to plea”2 was originally assigned for January 28, 2016; 

it was rescheduled to July 21, 2016, pursuant to multiple requests by Clark. 

On September 15, 2016, the Commonwealth scheduled the case for trial on 

January 30, 2017. Clark requested that the case be stricken from the trial list 

and continued his last day to plea from October 28, 2016, to December 9, 

2016.

On December 6, 2016, Clark filed a motion to continue the last day to 

plea. On December 9, 2016, the trial court entered the following order: “AND 

NOW, this 9th Day of December, 2016, for reasons that became apparent at 

today’s scheduled hearing on [Clark]’s Supplement to Pretrial Motion, a 

continuation of this hearing shall be scheduled for February 7th, 2017 at 

9:00 a.m.” Order, 12/9/2016. The order made no specific reference to the 

last day to plea or to Clark’s motion to continue the last day to plea, but the 

parties do not dispute that the last day to plea was continued to February 7, 

2017.

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2

 During the hearing on the Rule 600 motion, the office manager for the 

McKean County District Attorney’s Office, Julie Comes, testified that, in 

McKean County, a defendant is assigned a “last day to plea”; on that date, 

the defendant must enter a guilty plea, list the case for trial, or request a 

continuance. N.T., 11/6/2017, at 6-7. The last day to plea is assigned when 

the preliminary hearing is held or waived. Id. at 7.
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On February 7, 2017, the trial court granted Clark’s request for a bill of 

particulars and scheduled a status conference for April 21, 2017.3 Nothing in 

the record indicates that, on February 7, 2017, Clark entered a plea, the 

Commonwealth listed the case for trial, or either party requested a 

continuance of the last day to plea.

On February 17, 2017, the Commonwealth answered Clark’s request for 

a bill of particulars. In March 2017, Clark filed a motion to compel further 

particulars, which the trial court granted.

On May 16, 2017, by . . . order [of the trial court, Clark]’s Last 

Day to Plea was scheduled for June 29, 2017, at which time a Not 

Guilty Plea was entered of record. The Commonwealth took no 

further action until September 25, 2017, at which time the case 

was listed for trial for November 13 & 14, 2017.

Trial Court Opinion, 11/6/2017, at 2.

On October 20, 2017, Clark filed a motion to dismiss with prejudice,

asserting that the Commonwealth had violated Pa.R.Crim.P. 600(A), requiring 

the Commonwealth to bring a defendant to trial within 365 days of the filing 

of the criminal complaint. On November 6, 2017, the Commonwealth filed an 

answer to Clark’s motion, and the trial court held a Rule 600 hearing. At the 

hearing, the office manager for the District Attorney’s Office, Julie Comes,

testified that, in McKean County, the Commonwealth retains sole discretion as 

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3

 The record is unclear as to whether the status conference occurred.
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to when cases are listed for trial. N.T., 11/6/2017, at 14. She also testified 

about various trial dates. Id. at 13-16.4

During the hearing, defense counsel presented an order dated 

December 28, 1999, from the then-president judge of McKean County,

promulgating that the district attorney is given exclusive control over what 

cases are scheduled for the available trial dates in a given year. Order, 

12/28/1999, at ¶ 3.5

Immediately following the hearing, the trial court entered an order 

dismissing the charges against Clark. This appeal followed.6

The Commonwealth raises the following question on appeal:

Whether the [t]rial [c]ourt erred and misapplied the law where it 

granted [Clark]’s Motion to Dismiss Pursuant to Pa. R. Crim. P. 

600?

Commonwealth’s Brief at 2.

In evaluating Rule 600 issues, our standard of review of a trial 

court’s decision is whether the trial court abused its discretion. 

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4

 Ms. Comes testified that, from January 2016 until November 6, 2017, 83 

jury trial dates were available to the Commonwealth, of which 33 went unused 

by the Commonwealth for any matter. N.T., 11/6/2017, at 14-15. 

5

 The order of December 28, 1999, also decreed that only three days per 

month were to be reserved by the court administrator for criminal trials and 

that all criminal trials must be scheduled at least 30 days in advance. Order, 

12/28/1999, at ¶¶ 1, 3.

6

 On November 25, 2017, the trial court ordered the Commonwealth to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b) within 21 days of the date of the order. On December 5, 2017, the 

Commonwealth complied. On January 23, 2018, the trial court entered an 

order that the memorandum opinion that accompanied its order of 

November 6, 2017, would serve as its opinion pursuant to Pa.R.A.P. 1925(a).
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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. Hunt, 858 A.2d 1234, 1238–1239 (Pa. Super. 2004) (en 

banc) (internal brackets, citations, ellipses, and quotation marks omitted; 

some formatting).

Rule 600 provides, in pertinent part:

(A) Commencement of Trial; Time for Trial . . .

(2) Trial shall commence within the following time periods.
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(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 

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.

. . .

(3)(a) When a judge or issuing authority grants or denies a 

continuance:

(i) the issuing authority shall record the identity of the 

party requesting the continuance and the reasons for 

granting or denying the continuance; and

(ii) the judge shall record the identity of the party 

requesting the continuance and the reasons for 

granting or denying the continuance. The judge also 

shall record to which party the period of delay caused 

by the continuance shall be attributed, and whether 

the time will be included in or excluded from the 

computation of the time within which trial must 

commence in accordance with this rule.

Comment: . . . 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.

Pa.R.Crim.P. 600(A)(2)(a), (C)(1), (C)(3)(a)(i)-(ii) & cmt.

Rule 600 requires the Commonwealth to try a defendant within 

365 days of the filing of a criminal complaint. A defendant, 

however, is not automatically entitled to discharge under Rule 600 
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where trial starts more than 365 days after the filing of the 

complaint. Rather, Rule 600 provides for dismissal of charges only 

in cases in which the defendant has not been brought to trial 

within the term of the adjusted run date, after subtracting all 

excludable and excusable time. The adjusted run date is 

calculated by adding to the mechanical run date, i.e., the date 365 

days from the complaint, both excludable and excusable delay.

Excludable time includes delay caused by the defendant or his 

lawyer. Concomitantly, excusable delay occurs where the delay 

is caused by circumstances beyond the Commonwealth’s control 

and despite its due diligence. 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.

Commonwealth v. Roles, 116 A.3d 122, 124–125 (Pa. Super. 2015)

(internal citations, footnote, and quotation marks omitted). “The 

Commonwealth bears the burden of proving due diligence by a preponderance 

of the evidence.” Commonwealth v. Burno, 154 A.3d 764, 794 (Pa. 2017). 

When a “representative of the Commonwealth is responsible for scheduling 

cases,” “faithful compliance with the legal forms of proof” is required, including 

a detailed inquiry “into the Commonwealth’s assertions of necessary delay,”

supported by “trial schedules and justifications.” Commonwealth v. Bond, 

532 A.2d 339, 343 (Pa. 1987) (plurality opinion). 

Here, the total number of calendar days that elapsed from the filing of 

the criminal complaint on October 4, 2015, to the day Clark’s trial was 

scheduled to commence on November 13, 2017, was 771 days.

However, certain periods also may be excluded from the calculation. 

Pa.R.Crim.P. 600(C)(1). Thus, the inquiry for a court determining whether 
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there is a violation of the time periods in Pa.R.Crim.P. 600(A) is whether the 

delay was caused solely by the Commonwealth when the Commonwealth has 

failed to exercise due diligence. See, e.g., Commonwealth v. Matis, 710 

A.2d 12, 16 (Pa. 1998); Roles, 116 A.3d at 125.

The Commonwealth and the trial court both agree that the following 

time periods were excludable:

 October 15, 2015, to October 21, 2015 (six days);

 November 4, 2015, to November 18, 2015 (14 days);

 January 28, 2016, to July 21, 20167 (175 days); and

 October 28, 2016, to December 9, 2016 (42 days).

Answer to Clark’s Mot. to Dismiss Pursuant to Rule 600, 11/6/2017, at ¶ 8.C., 

8.E.-8.J., 8.L.; Trial Court Opinion, 11/6/2017, at 1. Thus, the Commonwealth 

and the trial court concur that 237 days were excludable; these 237 days 

subtracted from the 771 days between the filing of the complaint and the 

scheduled trial date results in a total time of 534 days, which is greater than 

the 365 days allowed by Pa.R.Crim.P. 600(A). In other words, the 

Commonwealth and the trial court do not dispute that the mechanical run date 

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7

 The Commonwealth admits that “there was a lull in the case ... after the July 

21, 2016 Last Day to Plea hearing.” Commonwealth’s Brief at 18.
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of October 3, 2016, is properly adjusted by 237 days, resulting in an adjusted 

run date of May 30, 2017.8

The Commonwealth argues that an additional 60 days were excludable. 

Specifically, it contends that the 60 days between December 9, 2016, and 

February 7, 2017, were also excludable, because Clark requested that 

continuance. Answer to Clark’s Mot. to Dismiss Pursuant to Rule 600, 

11/6/2017, at ¶ 8.M.; Commonwealth’s Brief at 17; see also Mot. to Continue 

Last Day to Plea, 12/6/2016. As this time was attributable to Clark, we agree 

with the Commonwealth that these 60 days are also excludable. Roles, 116 

A.3d at 125. Nonetheless, the total adjusted time would still be 474 days, 

which is more than the permissible 365 days, Pa.R.Crim.P. 600(A); the 

adjusted run date is July 27, 2017.

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8

 Two hundred thirty-seven days after October 3, 2016, is Sunday, May 28, 

2017; the next day, Monday, May 29, 2017, was Memorial Day. Accordingly, 

the next business day was Tuesday, May 30, 2017.

It is settled that “[w]henever the last day of any such period (of 

time referred to in a statute) shall fall on a Saturday or Sunday, 

or on any day made a legal holiday by the laws of this 

Commonwealth or of the United States, such day shall be omitted 

from the computation.” 1 Pa.C.S. § 1908. See Pa.R.Crim.P. 600, 

cmt. (“When calculating the number of days set forth herein, see 

the Statutory Construction Act, 1 Pa.C.S. § 1908.”) See also

Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220, 1221–

1222 (1982) (applying Section 1908 of the Statutory Construction 

Act to prompt trial calculation).

Commonwealth v. McCarthy, 180 A.3d 368, 376 (Pa. Super. 2018) 

(footnote omitted), reargument denied (Apr. 4, 2018).
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The Commonwealth further contends that there were 142 days of 

excusable delay.9 Answer to Clark’s Mot. to Dismiss Pursuant to Rule 600, 

11/6/2017, at ¶ 8.Q.; Commonwealth’s Brief at 17. According to the 

Commonwealth, these 142 days occurred between the hearing on February 7, 

2017, and when Clark’s last day to plea was rescheduled for June 29, 2017. 

Answer to Clark’s Mot. to Dismiss Pursuant to Rule 600, 11/6/2017, at ¶ 8.Q.; 

Commonwealth’s Brief at 17. It argued that it “could not schedule the case 

for trial after the [trial c]ourt ordered that it be taken off the trial list while

[Clark]’s Last Day to Plea was pending.” Id. at ¶ 8.N.1. It continued:

Other hearings were held while the Last Day to Plea was pending;

a) On February 7, 2017, status conference was scheduled 

for April 21, 2017 – [Clark]’s Last Day to Plea was still 

pending;

b) The [trial c]ourt scheduled hearing on [Clark]’s Motion to 

Dismiss and Commonwealth’s Motion to Amend for May 16, 

2017 – [Clark]’s Last Day to Plea was still pending;

c) On May 16, 2017, [Clark]’s Last Day to Plea was 

scheduled for June 29, 2017[.]

Id. at ¶ 8.N.2 (citations to the record omitted). If these 142 days could be 

subtracted from the 474 days, then the resultant total “run time” would be 

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9

 The trial court made no mention of excusable delay. See Trial Court 

Opinion, 11/6/2017, at 2.
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332 days – i.e., less than the 365 days permitted by Pa.R.Crim.P. 600(A), and 

the adjusted run date would be December 18, 2017.10

However, the Commonwealth presents no case law – and we find no 

precedent -- to support its theory that these 142 days were excusable. The 

district attorney’s office controlled the scheduling of trials, N.T., 11/6/2017, 

at 14; Order, 12/28/1999, at ¶ 3, and Ms. Comes testified that there were 33 

unused trial dates between January 2016 and November 6, 2017. N.T. 

11/6/2017, at 14-15. If there were an explanation as to why the 

Commonwealth did not ask the trial court to place this case back on the trial 

list, it was the Commonwealth’s responsibility to present such evidence and 

appropriate argument, as it “bears the burden of proving due diligence by a 

preponderance of the evidence.” Burno, 154 A.3d at 794; see also Bond, 

532 A.2d at 343.

11

We therefore fail to see how the Commonwealth put forth a “reasonable 

effort” and engaged in due diligence between February 7, 2017, and June 29, 

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10

 365 days + 237 days + 60 days + 142 days = 804 days. Eight hundred 

four days after October 4, 2015, is Saturday, December 16, 2017. The next 

business day is Monday, December 18, 2017. See McCarthy, 180 A.3d at 

376.

11

 Moreover, the additional hearings and pleadings between February 7, 2017, 

and June 29, 2017, should have served as a reminder to the Commonwealth 

that this case was pending and prompted it take action, instead of functioning 

as an excuse for inertia. See Answer to Clark’s Mot. to Dismiss Pursuant to 

Rule 600, 11/6/2017, at ¶ 8.N.2.
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2017, and how this delay was “beyond the Commonwealth’s control[.]” 

Roles, 116 A.3d at 125; see also Pa.R.Crim.P. 600(C)(1). Accordingly, we 

agree with the trial court that these 142 days do not constitute excusable 

delay. “By the fact that Commonwealth did not contact the [trial c]ourt on 

December 9, 201[6], to request that the Last Day to Plea be scheduled, the 

Commonwealth did not act with due diligence.” See Trial Court Opinion, 

11/6/2017, at 2.

12

Finally, the Commonwealth contends that the period from when this 

case was listed for trial until the scheduled start date – September 25, 2017, 

to November 13, 2017 – should not be included in the total calculation of time, 

because the very act of listing a case for trial “show[s] that the Commonwealth 

did act with due diligence.” Commonwealth’s Brief at 19. The Commonwealth 

notes that “[t]his Court has found ‘due diligence’ by the Commonwealth where 

the Commonwealth has listed the case for trial prior to the run date[.]” Id.

at 11 (citing Hunt, 858 A.2d at 1242).

However, we do not need to reach the question of whether this time 

should have been considered towards the adjusted run date, because, even if 

these 49 days were subtracted from the 474 days, the total time (425 days) 

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12

 There is no suggestion of judicial delay, such as a congested court docket. 

See McCarthy, 180 A.3d at 376 (delay that resulted from unavailability of 

time on trial court’s calendar was excludable from calculation under rule 

governing right to prompt trial); Commonwealth v. Frye, 909 A.2d 853, 859 

(Pa. Super. 2006) (“In conducting the due diligence inquiry, our jurisprudence 

has excused such delay resulting from court congestion.”).
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was still greater than 365 days. Phrased differently, 49 days added to the 

previously calculated adjusted run date results in a final adjusted run date of 

September 14, 2017. The Commonwealth did not list this action until 

September 25, 2017, and the trial was not scheduled to begin until November 

13, 2017. Both these dates are beyond the adjusted run date.13

Accordingly, we conclude that the trial court did not abuse its discretion 

in finding a violation of Rule 600 occurred. In doing so, we acknowledge the 

need to protect society through the effective prosecution of criminal cases, we 

also must balance the protection of the accused’s speedy trial rights. See 

Hunt, 858 A.2d at 1239. Here, we agree with the trial court that, while some 

of the delay was through no fault of the Commonwealth, the Commonwealth’s 

inaction resulted in a violation of Rule 600. See id. We cannot conclude that 

the trial court has overridden or misapplied the law or exercised manifestly 

unreasonable judgment and affirm its order dismissing the charges against 

Clark. See Pa.R.Crim.P. 600(A); Hunt, 858 A.2d at 1239.

Order affirmed.

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13

 Although our calculation of “total run time” an adjusted run date is different 

than the trial court’s computation, Trial Court Opinion, 11/6/2017, at 2, “we 

may affirm for reasons other than those given by the trial court.” McCarthy, 

180 A.3d at 376 n.8 (citation omitted).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/7/2018