J-A01003-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

OMAR SHABAZZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2776 EDA 2022

Appeal from the Judgment of Sentence Entered October 17, 2022

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0001518-2021

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and COLINS, J.*

MEMORANDUM BY LAZARUS, P.J.: FILED FEBRUARY 23, 2024

Omar Shabazz appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Montgomery County, following his convictions of 

one count each of firearms not to be carried without a license,

1 possession 

with intent to deliver—methamphetamine (PWID—methamphetamine),

2

persons not to possess firearm,3two counts of criminal attempt,

4 and three 

counts of conspiracy.

5

 After careful review, we conclude that we are bound 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 6106(a)(1).

2 35 P.S. § 780-113(a)(30).

3 18 Pa.C.S.A. § 6105(a)(1).

4 Id. at § 901(a).

5 Id. at § 903(a).
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by Commonwealth v. Lear, 290 A.3d 709 (Pa. Super. 2023), and remand 

for an evidentiary hearing pursuant to Pa.R.Crim.P. 600(D).

In light of our disposition, a detailed recitation of facts is unnecessary. 

In summary, the Montgomery County Detective Bureau and the Pottstown 

Borough Police Department were investigating an individual named Andrew 

Pignoli. During the course of the investigation, Detective Cameron Parker of 

the Montgomery County Detective Bureau began acting in an undercover 

capacity and began exchanging text messages and phone calls with Pignoli. 

Pignoli agreed to sell Detective Parker two ounces of methamphetamine in

exchange for $1,000 and a firearm. At this point, Shabazz became involved 

and told Detective Parker that he also wanted additional ammunition for the 

firearm. Detective Parker agreed, and Shabazz informed him that Pignoli 

would be contacting Detective Parker to coordinate the sale.

On October 7, 2020, Detective Parker met with Pignoli and Shabazz to 

exchange the two ounces of methamphetamine for $1,000 and a firearm, as 

well as additional ammunition. Police arrested Shabazz as a result of this 

exchange, recovered a different firearm on Shabazz’s person, and discovered 

additional methamphetamine in his vehicle. Shabazz was charged, via 

criminal complaint, on October 8, 2020.6

____________________________________________

6 As we discuss in detail infra, Shabazz was arrested during the suspension 

of Rule 600 by the Montgomery County Court of Common Pleas pursuant to 

various COVID-19 emergency orders. 
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On April 12, 2022, Shabazz filed a motion to dismiss pursuant to Rule

600. On May 10, 2022, Shabazz filed a motion to compel identity of informant 

and, on May 12, 2022, filed a motion to suppress the evidence seized from his 

person and his vehicle. On June 6, 2022, the trial court conducted a 

consolidated pre-trial hearing. On June 7, 2022, the trial court denied the 

three motions. In particular, the trial court determined that Shabazz’s Rule 

600 mechanical run date did not begin on October 8, 2020, when Shabazz 

was charged. Rather, the trial court concluded that Shabazz’s mechanical run 

date was calculated from August 31, 2021, when the Montgomery County 

Court of Common Pleas’ COVID-19 emergency orders expired. See Trial Court 

Opinion, 6/29/23, at 8-10. As a result, the trial court concluded that 

Shabazz’s mechanical run date was August 31, 2022, denied Shabazz’s Rule 

600 motion as premature, and did not conduct an analysis of whether the 

Commonwealth had acted with due diligence. See id.

On June 13-14, 2022, the trial court held a bifurcated jury trial on the 

above-mentioned PWID—methamphetamine offense, the firearms not to be 

carried without a license offenses, two of the conspiracy offenses, and one of 

the criminal attempt offenses.

7

 The remaining charges were heard by the trial 

court, sitting without a jury. 

____________________________________________

7 Two of Shabazz’s conspiracy offenses were related to the PWID—

methamphetamine and firearms not to be carried without a license charges. 

One of Shabazz’s criminal attempt offenses was related to the PWID—

methamphetamine charge.
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At trial, the jury found Shabazz guilty of the above-mentioned PWID—

methamphetamine, firearms not to be carried without a license, and related 

offenses. The trial court subsequently found Shabazz guilty of the remaining 

offenses. The trial court deferred sentencing and ordered the preparation of 

a pre-sentence investigation report.

On October 17, 2022, the trial court imposed an aggregate sentence of 

78 to 156 months in prison. Shabazz did not file post-sentence motions.8

On October 27, 2022, Shabazz filed a timely notice of appeal. On that 

same date, Shabazz’s trial counsel filed a motion to withdraw. The trial court 

granted the motion to withdraw and appointed new appellate counsel. The 

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8 We observe that on October 31, 2022, the trial court filed an amended 

sentencing order. See Order, 10/31/22. Additionally, on November 1, 2022, 

the trial court filed an “Order Modifying Sentence.” See Order Modifying 

Sentence, 11/1/22, at 1-2. Both orders are identical and state that a 

scrivener’s error failed to denote that Shabazz’s conviction of firearms not to 

be carried without a license was to run concurrently with his sentence for

persons not to possess firearms. See id.; see also N.T. Sentencing Hearing, 

10/17/22, at 11 (trial court stating that Shabazz’s conviction of firearms not 

to be carried without a license was to run concurrently with his sentence for 

his conviction of persons not to possess firearms). 

We observe that trial courts generally do not have jurisdiction to modify a 

judgment of sentence after a notice of appeal has been filed; however, our 

Supreme Court has recognized that a trial court’s inherent authority to correct 

a patent error is not limited by the fact that an appeal is pending before the 

appellate court. See Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 

2007); see also 42 Pa.C.S.A. § 5505. Instantly, as summarized above, the 

trial court modified the sentencing order to correct a scrivener’s error. 

Consequently, we conclude that the trial court properly exercised its authority 

to correct a patent error in the judgment of sentence, and it does not impede 

our review. See Holmes, supra.
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trial court further ordered that Shabazz file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. However, appellate counsel filed 

a Pa.R.A.P. 1925(c)(4) notice of intent to file a brief pursuant to Anders.

9

Consequently, the trial court did not file a Rule 1925(a) opinion.

During the pendency of Shabazz’s appeal, and prior to counsel’s filing 

of an Anders brief, this Court decided Commonwealth v. Lear, 290 A.3d 

709 (Pa. Super. 2023).

10

 In Lear, this Court concluded that the Montgomery 

County Court of Common Pleas COVID-19 emergency orders categorized the 

suspension of Rule 600 as court postponements. See id. at 719-20. 

Consequently, under Commonwealth v. Harth, 252 A.3d 600 (Pa. 2021),

the trial court was required to analyze whether the Commonwealth had acted 

with due diligence during those court postponements. See Lear, 290 A.3d at 

719-20. 

As a result of our decision in Lear, Shabazz’s appellate counsel filed an 

Application for Remand on April 30, 2023, in which counsel requested that the 

case be remanded for the preparation and filing of a nunc pro tunc Rule 

1925(b) concise statement preserving Shabazz’s Rule 600 claim for appeal. 

See Application for Remand, 4/30/23, at 1-3. This Court granted the 

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9 Anders v. California, 368 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009).

10 On October 3, 2023, our Supreme Court granted review of this Court’s 

decision in Lear. See Commonwealth v. Lear, 305 A.3d 541 (Pa. 2023) 

(Table).
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Application for Remand, remanded the matter to the trial court for the 

preparation and filing of a nunc pro tunc Rule 1925(b) concise statement 

followed by a responsive Rule 1925(a) opinion. See Order, 6/6/23. On June 

22, 2023, Shabazz filed the nunc pro tunc Rule 1925(b) concise statement, 

and on June 29, 2023, the trial court filed its responsive Rule 1925(a) opinion.

Shabazz now raises the following claims for our review:

1. Did the trial court err in finding the emergency orders related 

to the COVID-19 emergency constituted a suspension of Rule 600, 

as opposed to court-postponement for the purposes of Rule 600?

2. Did the trial court err in failing to analyze whether the 

Commonwealth exercised due diligence for the purposes of Rule 

600?

Brief for Appellant, at 4.

We address Shabazz’s claims together, as they are both related, and 

answered by this Court’s precedential decision in Lear. Shabazz contends 

that the trial court improperly denied his Rule 600 motion as premature 

because, under the language of Montgomery County’s COVID-19 emergency 

orders, his mechanical run date should have been calculated as October 8, 

2021, or one year after he was arrested and charged on October 8, 2020. 

See id. at 11-13. Shabazz further asserts that the trial court was required,

under Lear and Harth, to analyze whether the Commonwealth acted with due 

diligence at all times during the court postponements. See id.

The Commonwealth argues that the trial court properly excluded the 

time set forth in Montgomery County’s COVID-19 emergency orders. See 

Commonwealth’s Brief, at 10-15. The Commonwealth contends that this 
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Court’s decision in Lear misinterpreted the Montgomery County COVID-19 

emergency orders. See id. However, the Commonwealth acknowledges that 

we are bound by the Lear decision. See id. at 15 (citing Commonwealth v. 

Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (“It is beyond the power of a 

Superior Court panel to overrule a prior decision of the Superior Court[.]”)). 

Consequently, the Commonwealth concedes that, under Lear, remand for a 

Rule 600 hearing is necessary. 

“In evaluating Rule 600 issues, our standard of review . . . is whether 

the trial court abused its discretion.” Commonwealth v. Hunt, 858 A.2d 

1234, 1238 (Pa. Super. 2004) (en banc).

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 
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construed in a manner consistent with society’s right to 

punish and deter crime.

Id. at 1238-39 (internal citations and quotation marks omitted).

Rule 600 provides, in relevant part, as follows:

(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.

Pa.R.Crim.P. 600(A)(2)(a). “Rule 600 generally requires the Commonwealth 

to bring a defendant . . . to trial within 365 days of the date the complaint 

was filed.” Hunt, 858 A.2d at 1240. To obtain relief, a defendant must have 

a valid Rule 600 claim at the time he files his motion for relief. Id. at 1243.

“The mechanical run date is the date by which the trial must commence 

under Rule 600.” Commonwealth v. McNear, 852 A.2d 401, 406 (Pa. 

Super. 2004).

It is calculated by adding 365 days (the time for commencing trial 

under Rule 600) to the date on which the criminal complaint is 

filed. The mechanical run date can be modified or extended by 

adding to the date any periods of time in which delay is caused by 

the defendant. Once the mechanical run date is modified 

accordingly, it then becomes an adjusted run date.

Id. 

In determining whether any time constitutes excludable delay under 

Rule 600, a trial court must determine whether the time is a “delay in 
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proceedings,” and whether the delay should be excluded based on an analysis 

of the Commonwealth’s due diligence. Commonwealth v. Mills, 162 A.3d 

323, 325 (Pa. 2017). Time that is “necessary to ordinary trial preparation” or 

“attributable to the normal progression of a case simply is not a ‘delay’ for the 

purposes of [R]ule 600.” Id. If time is a “delay,” it is excludable when it falls 

under the “wide variety of circumstances [encompassed by Rule 600] under 

which a period of delay was outside the control of the Commonwealth and not 

the result of the Commonwealth’s lack of diligence.” Commonwealth v. 

Armstrong, 74 A.3d 228, 236 (Pa. Super. 2013) (citations and quotation 

marks omitted).

“A Rule 600 motion requires a showing of due diligence by a 

preponderance of the evidence for the Commonwealth to avail itself of an 

exclusion.” Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010) 

(citation omitted). “Due diligence is fact-specific, to be determined case-bycase; it does not require perfect vigilance and punctilious care, but merely a 

showing the Commonwealth has put forth a reasonable effort.” Id. 

Reasonable effort includes such actions as the Commonwealth listing the case 

for trial prior to the run date to ensure that the defendant was brought to trial 

within the time prescribed by Rule 600. See Commonwealth v. Aaron, 804 

A.2d 39, 43-44 (Pa. Super. 2002); Commonwealth v. Hill, 736 A.2d 578, 

592 (Pa. 1999). 
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Trial courts “must exercise judgment in distinguishing between delay 

attributable to the court and that which should be allocated to a party.” Mills, 

162 A.3d at 325. Judicial delays “arising out of the court’s own scheduling 

concerns . . . where a trial[-]ready prosecutor must wait several months due 

to a court calendar . . . should be treated as ‘delay’ for which the 

Commonwealth is not accountable.” Id. Nevertheless, the Commonwealth 

must act diligently through all stages of a case, and its due diligence must be 

assessed before determinations regarding judicial delay. See Harth, 252 

A.3d at 617-18 (adopting Justice Wecht’s concurrence in Mills).

Relevantly, in Lear, this Court stated as follows:

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 [due] diligence. 

[See Commonwealth v. Carl, 276 A.3d 743, 751 (Pa. Super. 

2022)]. 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. [See Harth, 252 A.3d at

618].

The relevant local emergency orders are as follows. 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.” Declaration, 

3/16/20. On March 31, 2020, Montgomery County extended the 

judicial emergency to April 30, 2020, again ordering Rule 600 to 

be suspended. Declaration[,] 3/31/20. 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. Order, 5/5/20, at 1. . 

. . 
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On May 28, 2020, Montgomery County declared that the local 

judicial emergency would be extended “until further Order of 

Court.” Declaration, 5/28/20. It ordered that its declaration 

included the provisions of the order from May 5, 2020. Id.

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 [] 

600.” Order, 6/3/20. This lasted until August 31, 2021. See

Order, 8/30/21. 

Id. at 719-20 (emphasis added).

Instantly, the trial court addressed this claim as follows:

[B]eginning in March of 2020, the Pennsylvania Supreme Court 

issued emergency orders suspending Rule 600 statewide through 

June 1, 2020. See In re General Statewide Judicial 

Emergency, 228 A.3d 1283, 1287 (Pa. [] 2020); In re General 

Statewide Judicial Emergency, 230 A.3d 1015, 1019 (Pa. [] 

2020). When the statewide judicial emergency ended, the Court 

expressly empowered each judicial district’s president judge to 

enter self-effectuating declarations of judicial emergency, which 

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

of criminal defendants to a prompt trial.” In re General 

Statewide Judicial Emergency, 234 A.3d 408 (Pa. [] 2020)[.]

In light of the Supreme Court’s orders, on March 16, 2020, 

President Judge Thomas M. DelRicci of the Montgomery County 

Court of Common Pleas declared a judicial emergency, noting, 

amongst other things, that effective immediately and until further 

notice, all jury and non-jury trials were cancelled. See Judicial 

Emergency Order, 3/16/20. On that same date, P.J. DelRicci also 

issued a declaration which explicitly suspended the operation of 

Rule 600 from March 12, 2020 through April 14, 2020. See

Declaration, 3/16/20. On March 31, 2020, P.J. DelRicci extended 

the judicial emergency through April 30, 2020. The Declaration 

stated, “[t]he operation of Rule [] 600 shall be suspended in the 

38th Judicial District during the period of the local judicial 

emergency.” See Declaration, 3/31/20. On April 14, 2020, P.J. 

DelRicci extended the judicial emergency to May 31[,] 2020. 
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Th[at] Declaration stated, “[a]ny postponement of criminal 

case scheduling caused by the declaration of this judicial 

emergency shall be considered a court postponement and 

shall constitute excludable time for the purposes of the 

application of Rule [] 600.” See Declaration, 4/14/20. On May 

28, 2020, P.J. DelRicci declared that the local judicial emergency 

would be extended “until further order of court.” See Declaration, 

5/28/20. On June 3, 2020, P.J. DelRicci ordered “that any 

postponement of criminal 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 [] 600.” See Order 

6/30/20.

On June 21, 2021, the Pennsylvania Supreme Court ordered that 

Pennsylvania courts would return to pre-pandemic status effective 

July 6, 2021. . . . On August 30, 2021, P.J. DelRicci issued an 

Order vacating . . . his June 30, 2020 Order. . . . See Order, 

8/30/21.

Here, on October 8, 2020, the Pottstown Borough Police 

Department filed a criminal complaint with respect to [Shabazz] 

and his trial commenced on June 13, 2022. Thus, the time 

between the filing of the complaint and [Shabazz]’s trial was 613 

days. The criminal complaint was filed during the time period 

when Montgomery County was operating under a judicial 

emergency. On October 15, 2020, [Shabazz]’s preliminary 

hearing was continued by request of the Magisterial District Court. 

On December 3 and 10, 2020, [Shabazz]’s preliminary hearing 

was continued by request of the defense. On January 21, 2021, 

[Shabazz]’s preliminary hearing took place and all charges were 

held for the Court of Common Pleas. On June 22, 2021, [Shabazz] 

entered a not guilty plea during his formal arraignment. On that 

same date, the Commonwealth filed the bills of information in this 

matter.

On April 21, 2022, following the first and only pre-trial conference 

in this matter, the [trial] court moved the case to the call of the 

trial list scheduled for April 27, 2022. During the call of the trial 

list on April 27, 2022, the [trial] court scheduled a jury trial to 

commence on June 8, 2022. On June 6, 2022, the [trial] court 

held the Rule 600 hearing. Due to a scheduling conflict, the [trial] 

court issued an order on June 8, 2022, which continued the jury 
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trial to June 13, 2022. Except for [Shabazz]’s requests for 

continuances of the preliminary hearings scheduled for December 

3 and 10, 2020, neither party requested any continuances during 

the pendency of this matter. The Commonwealth never indicated 

it was not prepared to proceed to trial at any point following its 

filing of the bills of information.

During the Rule 600 hearing on June 6, 2022, the Lear decision 

had not been issued and the [trial] court was operating under the 

belief that P.J. DelRicci had unambiguously suspended Rule 600 

without qualification for the time period [between] March 12, 2020 

through August 31, 2021. Consequently, the [trial] court had 

reason to conclude that the time period from the filing of the 

criminal complaint on October 8, 2020 to August 31, 2021 

constituted excludable time in which an examination of the 

Commonwealth’s exercise of due diligence was not required. 

Further, this conclusion caused the [trial] court to utilize 

September 1, 2021 as the starting time for the mechanical run 

date calculation, which resulted in a mechanical run date of 

September 1, 2022, prior to any adjustments. Considering the 

trial was going to commence well in advance of the September 1, 

2022 date, the [trial] court viewed [Shabazz]’s Rule 600 motion 

as premature and denied it without the development of an 

evidentiary record regarding the Commonwealth’s exercise of due 

diligence.

The Lear holding would effectively change the starting time for 

the mechanical run date calculation to the filing of the complaint 

on October 8, 2020, which would result in a mechanical run date 

of October 8, 2021[,] prior to any adjustments. Thus, the June 

13-14, 2022 [bifurcated] trial occurred well after the mechanical 

run date. . . . In the event the holding in Lear is upheld by the 

Pennsylvania Supreme Court, this court concedes that this matter 

would likely need to be remanded for a hearing pursuant to [Rule] 

600[] in order to determine whether the Commonwealth exercised 

due diligence throughout the life of this case. The [trial] court 

notes, however, that due to the judicial emergency and prohibition 

on jury trials for an extended period of time, the Montgomery 

County Court of Common Pleas was left with a significant backlog 

of cases which continues to severely impair its ability to schedule 

cases prior to any imminent Rule 600 deadlines. The backlog 

resulted in this matter not being scheduled for a pre-trial 

conference for nearly one year following [Shabazz]’s formal 
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arraignment and impaired the court’s ability to schedule this 

matter for trial prior to October 8, 2021.

Trial Court Opinion, 6/29/23, at 6-11 (emphasis added, some citations 

omitted).

After review, we agree with the trial court’s conclusion that Shabazz’s 

mechanical run date was October 8, 2021. See id. at 10-11. Further, we are 

bound by the Lear Court’s determination that Montgomery County’s COVID19 emergency orders constituted court postponements. See Lear, supra. 

Therefore, as the trial court did not analyze whether the Commonwealth acted 

with the requisite due diligence, we are constrained to remand for the trial 

court to conduct a hearing pursuant to Rule 600(D).11 See Lear, supra; 

Commonwealth v. May, 271 A.3d 475, 482 (Pa. Super. 2022) (“This panel 

is bound by existing precedent and, therefore, lacks the authority to overturn 

another panel decision.”) (citation omitted). If the trial court determines, after 

the hearing, that the Commonwealth did not meet its burden to show due 

diligence, then it should vacate Shabazz’s judgment of sentence and his 

convictions, dismiss the charges, and discharge Shabazz. However, if the trial 

court determines that the Commonwealth exercised due diligence, then it 

____________________________________________

11 We appreciate the trial court’s candor and the difficulties trial courts have 

had navigating Rule 600 during, and in the aftermath of, the pandemic. 

Nevertheless, we are bound by the precedential decision announced by this 

Court in Lear, and we are constrained to conclude that the trial court was 

required to analyze whether the Commonwealth acted with the requisite due 

diligence. See Lear, supra. As we emphasized in Lear, P.J. DelRicci’s orders 

expressly noted that the Rule 600 suspensions were to qualify as court 

postponements. See Trial Court Opinion, 6/29/23, at 6-8; see also Lear, 

supra; Mills, supra. 
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should deny Shabazz’s motion to dismiss; Shabazz’s judgment of sentence 

would remain extant, and Shabazz would be able to appeal the Rule 600 

determination.

Case remanded for Rule 600(D) hearing. Jurisdiction Relinquished.

Date: 2/23/2024