J-A14009-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

DAMIEN ELWOOD MOTTER 

Appellee No. 1420 MDA 2015

Appeal from the Order Entered July 16, 2015

In the Court of Common Pleas of Union County

Criminal Division at No(s): CP-60-CR-0000032-2014

CP-60-CR-0000033-2014

BEFORE: BOWES, OTT AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 22, 2016

The Commonwealth appeals from the July 16, 2015 order granting 

Appellee’s motion to dismiss pursuant to Pa.R.Crim.P. 600. After careful 

review, we reverse.

We glean the following facts from the affidavits of probable cause. 

Appellee was charged at two separate criminal numbers for his alleged 

involvement in a slew of burglaries. At criminal number CP-60-CR-0000032-

2014, Trooper Ty Brininger of the Pennsylvania State Police filed a complaint 

charging Appellee with multiple burglaries in western Union County. Trooper 

Brininger learned from Dauphin County law enforcement officials, who were 

investigating a series of crimes in that county, that suspects in their cases 
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were linked to the Union County crimes. The connection was made when 

search warrants were executed on residences owned by Appellee and 

another man, Kyle Dyer. During the service of these warrants, several 

hundred items stolen from multiple victims in Union, Dauphin, and Centre 

Counties were recovered. Appellee was additionally linked to the Union 

County crimes through his and Dyer’s statements to the police. 

At criminal number CP-60-CR-0000033-2014, Richard Todd Martin of 

the Pennsylvania Department of Conservation of Natural Resources filed 

charges against Appellee for the burglaries of five privately-owned cabins in 

Bald Eagle State Forest. Mr. Martin learned of the aforementioned State 

Trooper investigation and spoke with Dyer, who toured the cabins with Mr. 

Martin and implicated Appellee. One of the victims of the Bald Eagle State 

Forest burglaries was Union County Assistant District Attorney Martin Wilson, 

who is employed by the agency prosecuting Appellee. 

Appellee was charged via written complaint for both cases on October 

24, 2013. A preliminary hearing was scheduled for December 17, 2013. 

However, the affiant officers for the respective cases requested a 

postponement, which was granted. The hearings were thus rescheduled to 

January 14, 2014, at which time the matter was postponed, at Appellee’s 

request, to January 28, 2014. Appellee waived his preliminary hearings for 

both cases on that date. 
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Criminal informations were filed at both cases on March 18, 2014, with 

a corresponding motion to join the cases with the prosecutions of Dyer. The 

procedural history following the filing of these charges is somewhat 

convoluted.1 On June 11, 2014, the court docketed an order directing the 

parties to appear on July 14, 2014, for a guilty plea.2 Appellee, represented 

by Mark Lemon, Esquire, appeared for that hearing, with Assistant District 

Attorney Wilson representing the Commonwealth. Attorney Lemon 

stipulated at a later evidentiary hearing that the Commonwealth had 

commenced plea negotiations on May 28, 2014, and that he agreed to 

discuss the plea offer with Appellee. N.T., 8/7/15, at 5. However, all of the 

parties perceived that since Mr. Wilson was a victim in this matter, he could 

not represent the Commonwealth at the hearing. Thus, the trial court 

stated, “It would seem inappropriate to proceed with your case while Mr. 

Wilson is representing the Commonwealth under these circumstances, plus 

Mr. Lemon has indicated to me there are a couple details he wishes to 

discuss about your case with Mr. – with the District Attorney.” N.T. 7/14/14, 

____________________________________________

1

 A chart detailing the events and our ultimate calculations is appended to 

this memorandum.

2

 According to the Pa.R.A.P. 1925(a) opinion filed in this matter, this is 

standard practice in Union County. At the hearing, the defendant is given an 

opportunity to enter a plea or advise that the matter will be set for a jury 

trial. Trial Court Opinion, 12/15/15, at 2, n.1.
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at 2. The court stated it was inclined to continue the proceedings. 

Significantly, the court asked Appellee if he wished to conduct “your plea 

and sentencing by video,” to which Appellee said yes.3 Id. at 3 (emphasis 

added). The court then asked, “Have you had an opportunity to discuss the 

advantages and disadvantages to you entering a plea and being sentenced 

by video with Mr. Lemon?” Id. Appellee again responded affirmatively. Id. 

Consistent with these representations, the matter was postponed “until the 

last day of the next term of court.” Id. at 4. That hearing, set for 

September 14, 2014, was rescheduled due to problems arranging the video 

conference. 

On November 3, 2013, an order was issued scheduling another guilty 

plea hearing for December 8, 2014. However, on November 12, 2014 

Attorney Lemon filed a motion to withdraw as counsel. In this motion, 

counsel represented that Appellee sent a letter declaring his intentions to 

proceed to trial and to file an ineffectiveness claim if he were found guilty. 

The parties appeared for the December 8, 2014 hearing and the court 

remarked, “The [c]ourt’s been informed that [Appellee] is asking that the 

matter be listed for trial as he has no intentions of entering a plea.” N.T., 

12/8/14, at 2. Attorney Lemon placed the following on the record:

____________________________________________

3

 Appellee was incarcerated in a state correctional facility. 
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Your Honor, I – Mr. Motter is incarcerated in the state 

correctional facility. I sent him, and I think he can verify, a filled 

out plea agreement with correspondence indicating what the 

plea proposal was from the District Attorney’s Office.

Mr. Motter indicated he does not feel he should accept that 

particular offer and at that point had indicated that he felt that I 

had not been entirely effective in my representation of him, and 

I think it’s outlined in my motion to withdraw that he would take 

it to trial and have this case overturned when he filed a PCRA 

against me for ineffectiveness.

Id. at 3. Appellee informed the court that he had previously spoken with 

Mr. Lemon about filing a suppression motion if a satisfactory plea deal could 

not be reached. With Appellee’s consent, Mr. Lemon withdrew his motion 

and agreed to file an omnibus motion. Via written order, the trial judge 

directed Appellee to file the omnibus motion and brief within thirty days, 

with the Commonwealth’s brief to follow ten days after. Additionally, the 

order set jury selection for January 26, 2015, and further ordered the 

Deputy Court Administrator to schedule an expedited omnibus hearing prior 

to jury selection upon filing of the Commonwealth’s brief. Order, 12/9/14, at 

1. 

On December 30, 2014, Appellee filed an omnibus motion and brief 

seeking suppression of all items recovered from Appellee’s residence, as well 

as all statements made by Appellee. The court issued an order scheduling a 

two-hour hearing for January 20, 2015. Order, 12/31/14, at 1. 

The certified record next reveals that on January 6, 2015, the trial 

judge issued an order rescheduling the omnibus hearing. There is no 
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corresponding motion to postpone. The order stated that the “matter is 

continued by the [c]ourt to allow sufficient time for all the issues to be 

properly presented. The Commonwealth’s time to file a brief is extended by 

thirty (30) days.” Order, 1/7/15, at 1. 

The Commonwealth complied with the new deadline, filing its brief on 

February 3, 2015. The next entry on the docket is March 10, 2015, when 

the court issued an order rescheduling the omnibus hearing for May 1, 2015. 

This order did not set a date for jury selection. 

On May 1, 2015, the Commonwealth, represented by Assistant District 

Attorney Philip Sassaman, appeared at the suppression hearing and stated 

that its sole witness, the trooper who conducted the searches in question, 

was not present. The trial judge presented two options: he would issue a 

bench warrant for the trooper’s arrest or grant suppression. The 

Commonwealth did not request the warrant and the judge granted 

suppression of all evidence recovered from Appellee’s residence due to the 

Commonwealth’s failure to meet its burden of proof. The Commonwealth 

did not appeal. 

The trial court thereafter issued an order on May 4, 2015, ordering 

Appellee to appear for another guilty plea on June 2, 2015. However, on 

May 28, 2015, Attorney Lemon filed a motion for continuance, stating 

“Attorney Lemon and the Union County District Attorney are still negotiating 

the terms of a possible plea agreement.” Motion, 5/28/15, at ¶ 5. The 
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judge granted this request the next day, and the parties were then ordered 

to appear for jury selection commencing July 27, 2015. 

Just one day after requesting the continuance, on May 29, 2015, 

Appellee filed a motion to dismiss under Rule 600. Despite the numerous 

indications on the record that the parties were negotiating a plea and the 

motion requesting more time for negotiations, Appellee averred that he was 

always prepared to proceed to trial: 

Petitioner, Damien E. Motter, by and through his attorney, Mark 

H. Lemon, Esquire, Court Appointed Counsel, moves for 

dismissal of the above matters against him because the 

Commonwealth has failed to try him within three hundred sixtyfive (365) days from the time the written Complaint was filed 

against the Defendant on October 24, 2013. 

Petitioner further avers that he and his attorney were available 

for trial during that period. And that the defendant only 

requested one (1) continuance and caused no other delay 

during this time period. 

Petition to Dismiss, 5/29/15, at 1 (emphasis added).4 

The motion was granted following a July 15, 2015 hearing, ultimately 

resulting in this appeal. However, no evidence was presented at the 

hearing. The court, frustrated that the Commonwealth was again 

represented by an attorney with a perceived conflict, placed the following on 

the record: 

____________________________________________

4

 The one continuance refers to the fourteen-day postponement requested 

by Appellee at the preliminary hearing. 
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THE COURT: Some factual things so the record is complete. 

This is the week of the District Attorney’s conference, if I recall. 

It’s also a week that pleas and sentences were scheduled. I 

don’t know that there was an objection to that when the 

calendar was published.

. . . .

This has been scheduled since June 15th. And I believe, Mr. 

Wilson, one, it was your cabin, that was allegedly burglarized or 

victimized in this matter; is that correct?

. . . .

Would you agree that you can’t really represent the 

Commonwealth in these proceedings?

MR. WILSON: I certainly would agree that I have a conflict. My 

understanding from talking to Mr. Johnson going back to the 

beginning is that a conflict of an Assistant DA is not a conflict per 

se to the DA, where as opposed to a conflict for the DA is a 

conflict for the entire office.

And I do know that it should be noted that Mr. Johnson is the 

one who authored the brief in this matter, and I assume he’s the 

one who’s handled everything in this matter; but, again, I’ve 

been out of the loop, so I don’t really know; and the only reason 

I am here is just simply because of the absence of other 

available ADAs.

THE COURT: Since you have been excluded from the case, you 

cannot even address the due diligence argument as far as 

whether it should or shouldn’t be dismissed; is that correct?

MR. WILSON: The only thing I would state would be what is 

either on the record or in Mr. Johnson’s brief.

N.T., 7/15/15, at 3-5. Following more discussion about the conflict, Appellee 

objected to ADA Wilson representing the Commonwealth. The prosecutor 

responded:

MR. WILSON: And may I just add for the record so it’s 

absolutely clear, my presence here today was not out of any 
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kind of affirmative position on the part of this – on our office. 

Our office, when we recognized the situation, asked – requested 

a continuance. And I don’t know what role Mr. Lemon played in 

concurring or not concurring with a continuance, I don’t know so 

I’m not going to say; but I just want the record to reflect that we 

aren’t insisting that this happen here today.

THE COURT: My understanding is Mr. Wilson is the only 

assistant that stayed back, and that was for whatever procedure.

MR. LEMON: But, Your Honor, on the other hand, as you noted, 

this was scheduled a good time prior to today, and for the 

District Attorney’s office not to make those arrangements or ask 

for a continuance – I was contacted after the fact and I was told 

the Court would not grant a continuance; and I am not – and I 

want to stress that to the Court and Mr. Wilson – impugning that 

Mr. Wilson is here out of any other sort of motive than he was 

the one stuck behind. That’s not my client’s thought. But be 

that as it may, I fall back on what I had stated previously.

THE COURT: A motion for continuance was filed in this?

MR. WILSON: No, no. When I pointed out to Tamara, the staff 

administrator, of the issue, she indicated that she tried to – she 

communicated to the Court Administrator’s office that here was 

the problem of the dilemma; and my understanding is that she –

because of the circumstances, she asked that it be continued. 

And her feedback was that, no – I guess the answer was no. I 

don’t know why; and I don’t know, you know, much more than 

that. 

Id. at 7-8. When Mr. Wilson requested a continuance, the judge stated he 

did not understand why a motion had not been filed and granted the motion 

to dismiss. Id. at 17. 

The Commonwealth timely appealed and the matter is ready for our 

review. The Commonwealth presents three issues:

1. Did the lower court abuse its discretion when it applied 

rescinded Rule 600 resulting in the inclusion of excludable time 
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and vice versa where application of new Rule 600 would 

establish that the Appellee’s speedy trial rights were not 

violated?

2. Did the lower court abuse its discretion when it attributed 

delay to the lack of due diligence by the Commonwealth where 

the delay was also caused by Appellee?

3. Did the lower court abuse its discretion when it applied 

rescinded Rule 600 to the period of time where the record 

reflects that the time was attributed to the lower court; some of 

this time delay was attributable to court administration; and it 

improperly used occurrences later in time to find a lack of due 

diligence earlier in time?

Commonwealth’s brief at 4. 

Our task is to review the July 16, 2015 order dismissing the petition. 

Our standard and scope of review in evaluating Rule 600 issues is wellsettled. We determine 

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.

Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013) (citing 

Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa.Super. 2007) (en 

banc) (alterations in original due to rule renumbering)). “The proper 
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application of discretion requires adherence to the law, and we exercise 

plenary review of legal questions.” Commonwealth v. Baird, 975 A.2d 

1113, 1118 (Pa. 2009) (citing Commonwealth v. Chamberlain, 731 A.2d 

593, 595 (Pa. 1999)). Where the Commonwealth’s due diligence is at issue, 

we apply the following principle: 

As has been oft stated, “[d]ue diligence is fact-specific, to be 

determined case-by-case; it does not require perfect vigilance 

and punctilious care, but merely a showing the Commonwealth 

has put forth a reasonable effort.” 

Commonwealth v. Bradford, 46 A.3d 693, 701–02 (Pa. 2012) (quoting 

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

Rule 600, as rescinded and adopted July 1, 2013, requires the 

Commonwealth to try a defendant within one year of filing the complaint. 

(A) Commencement of Trial; Time for Trial

(1) For the purpose of this rule, trial shall be deemed to 

commence on the date the trial judge calls the case to trial, or 

the defendant tenders a plea of guilty or nolo contendere.

(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. Both criminal complaints were filed October 24, 2013, 

thus trial was required to commence on or before October 24, 2014. 

The Remedies portion of the Rule states that “When a defendant has 

not been brought to trial within the time periods set forth in paragraph (A) . 
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. . [he] may file a written motion requesting that the charges be dismissed 

with prejudice[.]” Pa.R.Crim.P 600(D)(1). Appellee filed that motion on May 

29, 2015. Of course, the mere fact that more than 365 days had elapsed by 

that point did not automatically entitle Appellee to discharge. The Rule sets 

forth a particular method for calculating “the time within which trial must 

commence”: 

(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.

Pa.R.Crim.P. 600. “[T]he inquiry for a judge in determining whether there is 

a violation of the time periods in paragraph (A) is whether the delay is 

caused solely by the Commonwealth when the Commonwealth has failed to 

exercise due diligence.” Comment, Pa.R.Crim.P. 600. 

The trial court’s computation included each day from the date the 

complaint was filed through dismissal on July 15, 2015, with the exception of 

two time periods. The trial court explained its calculation of time as follows:

In this case 628 days had elapsed from the time of the filing of 

the Complaint (October 24, 2013) until the [c]ourt dismissed the 

Complaint on July 15, 2015. 

. . . 

The [c]ourt has excluded from its calculations the time 

[Appellant] continued the preliminary hearing (January 14, 2014 

through January 28, 2014) and September 14, 2014 through 

December 8, 2014 as stated on Page 37 of the August 7, 2015 
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transcript. This would be a total of 99 days. This is still a clear 

violation of Rule 600. The [c]ourt also analyzed whether the 

Commonwealth exercised due diligence in this matter. The 

[c]ourt has concluded that it has not.

Trial Court Opinion, 12/15/15, at 5-6. 

The Commonwealth’s first issue challenges the trial court’s inclusion of 

time preceding the first guilty plea listing on July 14, 2014. The period from 

October 24, 2013, to July 14, 2014, is a total of 263 days. The trial court 

included 249 days of that time, subtracting from 263 the fourteen days 

owing to defense postponement of the preliminary hearing. We begin our 

analysis there. 

The Commonwealth declares that the trial court improperly applied 

former Rule 600, and maintains that the Rule as rescinded and adopted on 

July 1, 2013, represents a significant change in the law with respect to the 

Commonwealth’s obligations preceding the first trial listing. Most 

significantly, the Commonwealth asserts that only 28 days of the time 

period from October 24, 2013, when the complaints were filed, through July 

14, 2014, when the matter was first listed for a guilty plea, are included in 

the 365-day calculation. Commonwealth’s brief at 45 (“[A]s of July 14, 2015 

one would find that only twenty-eight (28) days of the time had run by 

virtue of the Commonwealth’s continuance.”).

We disagree, and find that the trial court properly included 249 days 

towards the 365-day limit. The comment to Rule 600 makes clear that the 
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changes were not substantive. “In 2012, former Rule 600 was rescinded 

and new Rule 600 adopted to reorganize and clarify the provisions of the 

rule in view of the long line of cases that have construed the rule.” 

Comment, Pa.R.Crim.P 600. The Commonwealth maintains that, in the 

absence of an indication that it failed to exercise due diligence, none of that 

time may be included in the 365-day calculation. 

The new Rule 600 obviously removed the concept of “Excusable 

delay” under former sub-paragraph ‘G’ and established that 

“Excludable” time is, for purposes of paragraph ‘A’, which is what 

is asserted herein, is all delay except, “delay caused by the 

Commonwealth when the Commonwealth has failed to exercise 

due diligence[.]

. . . .

There was no delay that was attributable to the 

Commonwealth which was caused by its lack of due 

diligence other than the 28 days between the filing of the 

complaints and July 14, 2014. Thus two hundred thirty five 

(235) days should be excluded from the calculation. 

Commonwealth’s brief at 38, 42-43 (emphasis added). We cannot agree. 

The July 2013 revision of the Rule did not eliminate the concept of excusable 

time. Contrary to the Commonwealth’s argument, former Rule 600 did not 

use the phrase “excusable delay.” Ramos, supra at 1102, n.5 (noting that 

excusable delay is not expressly defined in the text of Rule 600). The 

excusable delay construct was derived from the language of former Rule 

600(G), which 
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includes an explicit exception, neither explicitly nor implicitly 

included in Rule 600(E). The additional language provides the 

Commonwealth with the ability to obtain what this Court . . . 

termed to be “an extension” of the 365-day time limit, as 

opposed to a Rule 600(C) “exclusion,” to the extent the 

Commonwealth has exercised due diligence such that 

circumstances occasioning a postponement are beyond its 

control

Commonwealth v. Dixon, 907 A.2d 468, 474 (Pa. 2006). Thus, if the 

Commonwealth exercised due diligence, the 365-day time limit would be 

artificially extended. This notion was directly placed into the text of Rule 

600(C)(1):

(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.

Pa.R.Crim.P. 600(C)(1). The critical inquiry, then and now, is whether the 

Commonwealth was at fault for any delay, and, if so, whether the 

Commonwealth exercised due diligence during the pertinent time periods. 

To repeat, the Rule requires trial to commence within 365 days of 

filing. 

(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 
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365 days from the date on which the complaint is 

filed.

Pa.R.Crim.P. 600. Under the Commonwealth’s proffered interpretation, none 

of the time preceding a first listing would ever be included in the (A)(2)(a) 

calculation, absent a showing that the Commonwealth failed to exercise due 

diligence.5 This reading flips the applicable burden. “The Commonwealth 

has the burden of establishing by a preponderance of the evidence that it 

exercised due diligence throughout the prosecution.” Commonwealth v. 

Roles, 116 A.3d 122, 125 (Pa.Super. 2015). Since the Commonwealth did 

not bring Appellee to trial within 365 days of the date the complaint was 

filed, the Commonwealth bore the burden of showing which periods of delay, 

if any, should not be included under Rule 600(A)(2)(a). The changes to the 

Rule did not eliminate that requirement.6 

____________________________________________

5

 While the Commonwealth concedes that its twenty-eight day 

postponement of the preliminary hearing should be included in the 365-day 

calculation, that concession highlights the errors in its analysis. Under its 

interpretation of Rule 600, the prosecution could simply not set a preliminary 

hearing at all, and that time would not be included, since there would be no 

indication the Commonwealth failed to exercise due diligence. 

6

 We note that our Supreme Court granted, on July 19, 2016, a Petition for 

Allowance of Appeal on a related issue. In Commonwealth v. Mills, 136 

A.3d 1028 (Pa.Super. 2016) (unpublished memorandum), we held that the 

trial court improperly included in the 365-day calculation a period of 187 

days from September 27, 2011, which was a status conference date, 

through April 2, 2012, which was the earliest available trial date. We 

determined that this block of time was not delay caused by the 

(Footnote Continued Next Page)
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Thus, mindful that we must view the facts in the light most favorable 

to Appellee as the prevailing party, we hold that the trial court correctly 

applied the law and did not abuse its discretion. As of July 14, 2014, 263 

total days had elapsed, and only fourteen of those days is excluded from the 

365-day computation, as the Commonwealth cannot be at fault where 

Appellee requests the delay (formerly labeled “excludable time”). Therefore, 

the trial court properly included the remaining 249 days in the (A)(2)(a) 

calculation. See Appendix. Accordingly, the Commonwealth had 116 days 

remaining in which to try Appellee. 

We now address the time periods following the July 14, 2014 guilty 

plea postponement through December 8, 2014 when Appellant requested a 

trial. This is a total of 147 days, and the trial court included 48 of these 

(Footnote Continued) _______________________

Commonwealth, because the delay was due to the trial court’s unavailability. 

Our Supreme Court granted review on the following question:

Did not the trial court properly grant [P]etitioner's motion to 

dismiss pursuant to Pa.R.Crim.P. 600, where the time form [sic] 

a scheduling conference to a status listing consisted of time 

attributable to the conventional progression of a criminal case 

and was not judicial “delay,” and was therefore correctly 

included in the calculation of the 365 days in which to bring 

[P]etitioner to trial, and thus where more than 365 days elapsed 

before [P]etitioner was brought to trial?

Commonwealth v. Mills, 141 A.3d 1275 (Pa. 2016). Mills may shed light 

on arguments raised by the Commonwealth regarding what effect the 

conventional progression of a criminal case has upon the (A)(2)(a) 

calculation.
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days towards the 365-day limit. The Commonwealth asserts that the trial 

court failed to account for Appellee’s role in these delays, and highlights that 

Appellee contributed to the delays by requesting postponements to negotiate 

a plea. Appellee counters that, with respect to the July 14, 2014 guilty plea 

hearing, ADA Wilson could not represent the Commonwealth due to a 

perceived conflict. In Appellee’s view, the Commonwealth did not act with 

due diligence by having ADA Wilson appear in court for the first guilty plea 

hearing. Appellee’s brief at 10. This scheduling mistake, Appellee avers, 

justifies including the entire 147 day period spanning July 14, 2014, when 

the case was postponed, through December 8, 2014, when Appellee 

requested a trial, in the 365-day calculation. 

We disagree. Appellee and the trial court both proceeded from the 

misapprehension that Appellee did not contribute to these delays. For the 

following reasons, we hold that none of the 147 days spanning July 14, 2014 

through December 8, 2014 is included in the (A)(2)(a) computation.

First, the July 14, 2014 hearing concluded with Appellee agreeing to 

enter a plea via video, which was scheduled for September 14, 2014, sixtytwo days later. Despite stating on the record on July 14, 2014 that Appellee 

would enter a plea at the next listing, the trial court’s opinion retroactively 

charges these sixty-two days to the Commonwealth, stating 

Of significance, is the fact that Assistant District Attorney Martin 

Wilson appeared for the Commonwealth at the July 14, 2014 

pretrial conference/guilty plea hearing. It was disclosed at that 
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point that Attorney Wilson, an Assistant District Attorney of 

many years and personal friend of the District Attorney D. Peter 

Johnson, was an alleged victim in one of the cases. Mr. Wilson 

and his wife lease a cabin that was allegedly burglarized by the 

Defendant. In spite of the defense requesting the 

continuance, it would have been impossible to proceed on 

July 14, 2014 as Mr. Wilson could not conceivably represent the 

Commonwealth and still be a victim of one of the cases.

Trial Court Opinion, 12/15/15, at 2 (emphasis added).7 We do not find that 

fact significant. Pursuant to the court’s own opinion, the sole purpose of the 

July 14, 2014 conference was to give the defendant “an opportunity to enter 

a plea or advise that the matter will be set for a jury trial.”8 Appellee did not 

____________________________________________

7

 Neither the parties nor the court explored the possibility of Appellee 

waiving any conflict of interest arising from Mr. Wilson representing the 

Commonwealth for the limited purpose of accepting a plea bargain 

negotiated by a completely different prosecutor. 

8

 We direct the parties and the trial court to paragraph C of the Rule, which 

outlines a specific procedure for granting or denying a continuance.

(C) Computation of Time

. . . .

(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 

(Footnote Continued Next Page)
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enter a plea, nor did he request a trial. Instead, Appellee explicitly agreed 

to enter a plea via video conference, and requested a continuance for that 

purpose. N.T., 7/14/14, at 4. That hearing was set for September 14, 

2014. The trial court included the sixty-two day period from July 14, 2014 

to September 14, 2014 in the (A)(2)(a) calculation. This was erroneous, as 

the defense agreed to the postponement. “If the defense does indicate 

approval or acceptance of the continuance, the time associated with the 

continuance is excludable under Rule 600 as a defense request.” 

Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004) (en banc) 

(quoting Commonwealth v. Guldin, 463 A.2d 1011, 1014 (Pa. 1983)). 

This misapplication of the law constitutes an abuse of discretion.

We next consider the postponement of the September 14, 2014 

hearing, which was rescheduled for December 8, 2014. This time period of 

eighty-five days was excluded from the 365-day calculation, as the court 

administrator did not arrange a video conference link to Appellee’s prison. 

(Footnote Continued) _______________________

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.

Pa.R.Crim.P. 600(C)(3)(a)(i-ii). Following this procedure would have greatly 

aided our inquiry.
J-A14009-16

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The court concluded that the Commonwealth was not at fault for this delay, 

as it did not bear the duty of arranging the link. We agree with the court’s 

conclusion in this regard. Therefore, this eighty-five day time period was

properly excluded from the (A)(2)(a) calculation. 

We now address the events of December 8. The court commenced the 

proceeding by stating, “The [c]ourt’s been informed that the Defendant is 

asking that the matter be listed for trial as he has no intentions of entering a 

plea.” N.T., 12/8/14, at 2. Appellee was granted permission to file pre-trial 

motions and a brief within thirty days. The trial court ordered jury selection 

for January 26, 2015, with the suppression hearing to precede selection on 

January 20, 2015. 

We summarize our findings to this point. As of December 8, 2014, 

410 total days had elapsed from October 24, 2013, the date the complaints 

were filed. We find that only 249 of these days are included in the 365-day 

calculation. Thus, as of December 8, 2014, when Appellee first informed the 

court he wished to proceed to trial, the Commonwealth had 116 days 

remaining in which to commence trial. Adding the 116 days to December 8, 

2014 yields April 3, 2015. Thus, had trial proceeded on January 26, 2015 as 

originally set by the court, Rule 600 would not have been violated. 

Obviously, trial did not occur on January 26. At this juncture we must 

address Appellee’s filing of pretrial motions. In Commonwealth v. Hill, 

736 A.2d 578 (Pa. 1999), our Supreme Court established that the filing of a 
J-A14009-16

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pre-trial motion does not automatically render a defendant unavailable for 

trial for purposes of the Rule. However, Hill established that delay in the 

commencement of a trial caused by the filing of pre-trial motions is not 

chargeable to the Commonwealth if the Commonwealth exercised due 

diligence in responding to the motion. 

If a delay is created, in order to establish that the delay is 

excludable, the Commonwealth must demonstrate, by a 

preponderance of the evidence, that it exercised due diligence in 

opposing or responding to the pretrial motion. 

Id. at 587 (footnote and citations omitted). 

Herein, jury selection was set to commence January 26, 2015, with 

pretrial motions preceding trial the previous week. Under Hill, the time 

from December 8, 2014, when Appellee requested trial, through January 26, 

2015, would be included in the 365-day calculation, absent other 

circumstances, as commencement of trial would not have been delayed by 

the motion.9 

We begin our analysis by setting forth the circumstances surrounding 

the postponement of the January 20, 2015 suppression hearing. That 

hearing—and, by extension, the trial—was postponed due to the 

____________________________________________

9

 Our Supreme Court’s allowance of appeal in Commonwealth v. Mills, 

141 A.3d 1275 (Pa. 2016) may address whether any of this time would be 

included in the first instance. The panel in Mills determined, in a 

substantially similar situation, that none of the time from the pre-trial 

conference through the actual trial was included in Rule 600’s calculation, as 

the court was unavailable for trial. 
J-A14009-16

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Commonwealth requesting additional time to respond to the pretrial 

motions. The trial court granted that request by order dated January 7, 

2015, which states: 

AND NOW, this 6 day of January, 2015, the Omnibus hearing 

scheduled for January 20, 2015 at 9:30 a.m. is CONTINUED. 

The Deputy Court Administrator is directed to schedule a hearing 

in this matter allowing one-half (1/2) day for that purpose. The 

matter is continued by the [c]ourt to allow sufficient time for all 

the issues to be properly presented. The Commonwealth’s time 

to file a brief is extended by thirty (30) days.

Order, 1/7/15, at 1. The trial court’s opinion adds the following facts 

regarding this continuance:

On January 6, 2015[,] in an extremely unusual situation, the 

[c]ourt continued the Omnibus Motion on an off-record, oral 

request of the Commonwealth. 

The Union County District Attorney was experiencing significant 

medical issues at the time and the [c]ourt, in retrospect, 

inappropriately granted the continuance request as a courtesy to 

the Commonwealth due to the circumstances.

The [c]ourt was informed by the Commonwealth that the two (2) 

hours allotted by Court Administration for the hearing was not a 

sufficient amount of time for the hearing.

As a result of the foregoing, [j]ury [s]election on January 26 and 

27, 2015 was cancelled and an Omnibus hearing was 

scheduled for May 1, 2015 and one-half (1/2) day was 

allotted for the hearing based on the Commonwealth’s 

representations.
J-A14009-16

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Trial Court Opinion, 12/15/15, at 3.10 Attorney Lemon stated he was 

unaware of the postponement request, N.T., 7/15/15, at 15, and the 

prosecutor conceded this point when he described the scheduling 

communication with the judge as ex parte. N.T., 8/7/15, at 20.

We agree that the trial court inappropriately granted the continuance 

request in that Appellee was not given an opportunity to respond.11 

Nevertheless, the fact remains that the postponement was granted for the 

express purpose of giving the Commonwealth additional time to respond to 

the motion. Obviously, trial could not commence until the pretrial motions 

____________________________________________

10 We discuss infra the effect of the trial court’s scheduling the matter on 

this date.

11 Code of Judicial Conduct, Rule 2.9(A) states:

(A) A judge shall not initiate, permit, or consider ex parte 

communications, or consider other communications made to the 

judge outside the presence of the parties or their lawyers, 

concerning a pending or impending matter, except as follows:

(1) When circumstances require it, ex parte 

communication for scheduling, administrative, or 

emergency purposes, which does not address 

substantive matters, is permitted, provided:

(a) the judge reasonably believes that no party will 

gain a procedural, substantive, or tactical advantage 

as a result of the ex parte communication; and

(b) the judge makes provision promptly to notify all 

other parties of the substance of the ex parte 

communication, and gives the parties an opportunity 

to respond. 
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were resolved. The trial court granted a postponement for the 

Commonwealth to file a brief in response and to prepare its presentation of 

the issues at an evidentiary hearing. We have reviewed the suppression 

motion, accompanying brief, and the Commonwealth’s response thereto. As 

Appellee’s motion stated, this investigation spanned several counties. The 

search yielded several hundred stolen items matching various burglaries 

across multiple counties. The motion challenged the search warrant for 

Appellee’s residence on several grounds and separately challenged the 

search warrant for co-defendant Dyer’s residence, claiming that warrant was 

invalid, and, to the extent the search of Appellee’s residence was based on 

that information, the later search was excludable as fruit of the poisonous 

tree. Additionally, the motion complains that the items were not described 

with sufficient particularity. 

Under these facts, we hold that the Commonwealth cannot be found to 

have failed to exercise due diligence. This suppression motion was not a 

simple matter, and we think that the Commonwealth put forth a reasonable 

effort given the complexity of the motion. We observed in Commonwealth 

v. Dixon, 140 A.3d 718, (Pa.Super. 2016), that

‘[T]he Commonwealth must do everything reasonable within its 

power to guarantee that a trial begins on time,’ and the 

Commonwealth has the burden of demonstrating by a 

preponderance of the evidence that it exercised due diligence. 

‘As has been oft stated, [d]ue diligence is fact-specific, to be 

determined case-by-case; it does not require perfect vigilance 
J-A14009-16

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and punctilious care, but merely a showing the Commonwealth 

has put forth a reasonable effort.’

Id. at 722-23 (citing Commonwealth v. Colon, 87 A.3d 352, 359 

(Pa.Super. 2014)). Significantly, the Commonwealth filed its brief on 

February 3, 2015, just two weeks after the suppression hearing was 

originally scheduled to commence. 

In determining that the Commonwealth exercised due diligence, we 

must note our disagreement with the trial court’s due diligence analysis. 

The court failed to account for Hill and its progeny. Instead, the trial court 

focused solely on the fact that the Commonwealth’s witness failed to appear 

at the rescheduled May 1, 2015 suppression hearing. 

The [c]ourt also analyzed whether the Commonwealth exercised 

due diligence in this matter. The [c]ourt has concluded that it 

has not.

. . . .

[T]he [c]ourt, in trying to accommodate the District Attorney's 

Office allowed an oral continuance without a written motion of an 

Omnibus hearing. The District Attorney was experiencing 

significant medical issues and the [c]ourt was aware of these at 

the time and accepted the representations and request for a 

continuance.

And then, after the hearing was continued to accommodate the 

Commonwealth, the Commonwealth appeared totally unprepared 

for the May 1, 2015 hearing. No witnesses appeared for the 

Commonwealth and only one (1) witness was allegedly 

subpoenaed resulting in not only the Omnibus Motion being 

granted but a waste of one-half (1/2) day of [c]ourt time and an 

unnecessary delay of resolution of the case.

Trial Court Opinion, 12/15/15, at 6-7. 
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The mere fact that the witness failed to appear does not alone warrant 

a finding that the Commonwealth failed to act with due diligence in securing 

his presence. Commonwealth v. Hyland, 875 A.2d 1175, 1191–92 

(Pa.Super. 2005) (“The Commonwealth cannot be held to be acting without 

due diligence when a witness becomes unavailable due to circumstances 

beyond its control.”). The trial court failed to consider the Commonwealth’s 

representation that the witness was subpoenaed for the May 1, 2015 hearing 

and did not appear due to circumstances beyond its control. In any event, it 

was legal error to retroactively find the Commonwealth did not act with duly 

diligent efforts back in January, when additional time was requested. The 

court failed to apply Hill, supra. 

To summarize, we conclude that commencement of the January 26, 

2015 jury selection was delayed by the filing of a pretrial motion, and the 

Commonwealth exercised due diligence in responding to the motion. 

Accordingly, the forty-nine day period from December 8, 2014, through the 

trial date of January 26, 2015, is not included in the (A)(2)(a) calculation. 

We must now discuss the fact that trial was not rescheduled. Instead, 

the court rescheduled the suppression motion hearing for May 1, 2015. The 

trial court issued that order on March 10, 2015. A corresponding jury 

selection date was not scheduled. The Commonwealth asks us to find all of 

the time from January 26, 2015 through the ultimate date of dismissal is 

chargeable to the trial court and court administration. “Here the lower court 
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is holding the Commonwealth responsible for its clogged dockets. These are 

delays for which the Commonwealth has no control.” Commonwealth’s brief 

at 53. Appellee and the trial court, on the other hand, blame the 

Commonwealth, stating that the prosecution’s Rule 600 computer system 

did not flag any issues and the Commonwealth “fail[ed] to notify Court 

Administration of the need for expedited hearing dates.” Trial Court Opinion, 

12/15/15, at 8.12 

We agree with the Commonwealth. Commonwealth v. Bradford, 46 

A.3d 693 (Pa. 2012), illustrates that the Commonwealth may rely on other 

judiciary offices to fulfill their obligations, including scheduling of motions. 

In Bradford, the Commonwealth initiated charges by filing a criminal 

complaint. Fifteen days later, a preliminary hearing was held, with an 

assistant district attorney present. All charges were held for court, but the 

magisterial district judge, for unstated reasons, failed to forward documents 

to the Department of Court Records as required by Pa.R.Crim.P. 547(B). 

The Commonwealth took no further action, because its own tracking system 

was triggered only upon generation of a “CR Number,” which in turn was 

____________________________________________

12

 The trial court cites the testimony of Sue Sees, Deputy Court 

Administrator, regarding this issue. Trial Court Opinion, 12/15/15, at 7. Ms. 

Sees, however, was testifying to any communications with the 

Commonwealth regarding scheduling plea hearings. As we have explained, 

the Commonwealth’s failure to expedite that hearing is no failure at all, 

given our conclusion that all of that time is not included in (A)(2)(a). 
J-A14009-16

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created only when papers were forwarded as required by Rule. Bradford 

filed a motion to dismiss one day after the Rule 600 time limit expired. The 

Commonwealth, then aware of the case, attempted to list the matter for 

trial.

On appeal to our Supreme Court, the issue was whether the 

Commonwealth exercised due diligence under former Rule 600(G) by relying 

upon the magistrate office’s compliance with the rules of criminal procedure. 

Bradford determined that the district attorney’s office could validly rely on 

the minor judiciary fulfilling its own obligations: 

We do not find it unreasonable for the District Attorney to have 

relied upon the Magisterial District Judge's compliance with the 

Rules of Criminal Procedure to trigger its internal tracking 

system. While we might question the Commonwealth's diligence 

if it devised its system to be launched upon a district judge's 

adherence to a self-designed custom or practice, we conclude 

that here the District Attorney's office exercised due diligence 

when it relied upon the minor judiciary following the specific, 

mandatory Rules of Criminal Procedure, which placed upon the 

District Judge the obligation to transmit timely papers to the 

common pleas court.

Id. at 704-05 (footnote omitted). 

Here, as in Bradford, the duty to schedule a suppression hearing fell 

upon the judiciary. Rule of Criminal Procedure 581, Suppression of 

Evidence, states that:

(E) A hearing shall be scheduled in accordance with Rule 577 

(Procedures Following Filing of Motion). A hearing may be either 

prior to or at trial, and shall afford the attorney for the 

Commonwealth a reasonable opportunity for investigation. The 

judge shall enter such interim order as may be appropriate in 
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the interests of justice and the expeditious disposition of criminal 

cases.

Pa.R.Crim.P. 581. Rule 577, in turn, states that 

if the judge determines the motion requires a hearing or 

argument, the court or the court administrator shall 

schedule the date and time for the hearing or argument. 

Pursuant to Rule 114(B)(2), notice of the date and time for the 

hearing or argument shall be served by the clerk of courts, 

unless the president judge has designated the court or court 

administrator to serve these notices.

Pa.R.Crim.P. 577(A)(2) (emphasis added). Additionally, paragraph (B) 

states the judge shall promptly dispose of any motion. 

We acknowledge that in Commonwealth v. Sloan, 67 A.3d 1249 

(Pa.Super. 2013), we concluded that the Commonwealth cannot blindly rely

upon the minor judiciary. Therein, the Commonwealth charged the 

defendant via complaint dated July 30, 2008, yet did not file the criminal 

information until May 11, 2009. Sloan was then arraigned on June 22, 

2009. The next day, the trial court’s arraignment office scheduled a pre-trial 

conference for July 31, 2009, which was one day after Rule 600 expired. 

The assistant district attorney, recognizing the pending deadline, contacted 

the assigned public defender. The parties appeared in court on July 30, 

2009, and the judge set trial for August 27, 2009. Id. at 1253. 

Sloan moved for dismissal under Rule 600, which the trial court 

denied, finding that the Commonwealth was not responsible for the 
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arraignment office’s failure to take notice of the Rule 600 run date. Id. at 

1254. On appeal, we reversed and distinguished the case from Bradford: 

In Bradford, the Pennsylvania Supreme Court determined that 

“all of the delay in bringing the case to trial” had resulted from 

“the District Judge's failure to forward the documents to the 

Court of Common Pleas in compliance with Pa.R.Crim.P. 547(B).” 

Bradford, 46 A.3d at 702. In the present case, however, the 

delay was caused by the Commonwealth failing to file the 

Information until May 11, 2009. It is the Commonwealth's 

responsibility to file the information after the defendant has been 

held for court following a preliminary hearing. Pa.R.Crim.P. 

560(A). In this case, that occurred on September 11, 2008, but 

the information was not filed until May 11, 2009. Significantly, 

the Rules of Criminal Procedure provide that the formal 

arraignment and pretrial conference cannot be held until after 

the filing of the information. See Pa.R.Crim.P., 570, 571.

Further, in Bradford, the Supreme Court, in determining that 

the Commonwealth had exercised due diligence, relied on the 

fact that Rule 547(6) of the Rules of Criminal Procedure had a 

specific, mandatory requirement for the district judge to timely 

transmit the papers to the Common Pleas Court. Bradford, 46 

A.3d at 704–05. See Pa.R.Crim.P. 547(6). In contrast, Rule 570, 

relating to the pretrial conference, does not contain a similar 

time-limited, mandatory requirement. See Pa.R.Crim.P. 570(A).

Unlike Rule 547, relied upon by the trial court in Bradford, Rule 

570 contains no specific time limit within which the pretrial 

conference must be scheduled. Thus, we conclude that it was not 

reasonable for the Commonwealth in this case to rely upon the 

arraignment clerk to schedule the pretrial conference properly 

within the parameters of Rule 600.

Id. at 1254 (footnote omitted). We find that the instant case is more akin 

to Bradford than Sloan. Unlike the Rule at issue in Sloan, the applicable 

procedures squarely place the burden of scheduling motions hearings on the 

trial court. We do not suggest that the Commonwealth is completely free of 
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any obligation to monitor a case after filing a response to pre-trial motion. 

We hold only that under these circumstances, where the court issued an 

order scheduling a hearing a little over a month after the Commonwealth 

filed its brief in response to the suppression motion, the Commonwealth is

not to blame for the resultant days. Where a delay in trial is caused by a 

response to the pre-trial motions, the Commonwealth must establish it 

exercised due diligence in opposing or responding to the motion. Hill, 

supra at 587. The Commonwealth diligently responded to pretrial motions 

that, by necessity, delayed trial, and validly relied on the court to schedule 

the hearing. Following the submission of the briefs, the case was ready to 

proceed to hearing and trial pending the court’s scheduling those matters. 

We also note that Union County employs only two judges: the trial judge 

herein and a senior judge.13 It is unsurprising that the court was unable to 

accommodate the parties until May. Therefore, we hold that none of the 

time from January 26, 2015, through May 1, 2015, is included in the 365-

day calculation. Accordingly, the number of days included in the (A)(2)(a) 

calculation towards the 365-day limit remained at 249 days. 

Finally, we turn to the events following May 1, 2015. The trial court 

granted the suppression motion and the Commonwealth did not appeal. For 

____________________________________________

13 http://www.unioncountypa.org/departments/courts/court-of-commonpleas/court-of-common-pleas/page.aspx?id=1349
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reasons that are not apparent in the record, the trial court did not schedule 

a corresponding trial date until after the suppression hearing concluded. 

Order, 5/4/15, at 1. This order did not schedule a trial, instead ordering the 

parties to appear for a plea. However, on May 28, 2015, Attorney Lemon 

requested a continuance, representing that the parties were still negotiating 

a plea. Motion, 5/28/15, at ¶ 5. That order was granted, and Appellee then 

filed the motion to dismiss, leading to this instant appeal. Consistent with 

our analysis of Hill, we hold that any delay in commencing trial was delayed 

due to these additional pretrial motions. Hence, we again conclude that 

none of the time following May 1, 2015, is included in the (A)(2)(a) 

calculation.

Having concluded only 249 days is included in the 365-day calculation, 

the trial court erred in dismissing the motion under Rule 600. When the trial 

court granted the motion to dismiss on July 16, 2015, the Commonwealth 

still had 116 days remaining in which to try Appellee. We therefore reverse 

and remand for further proceedings consistent with this memorandum. 

Order reversed. Jurisdiction relinquished. 

Judge Ott joins the Memorandum.

Judge Platt concurs in the result.
J-A14009-16

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2016
J-A14009-16

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APPENDIX

Event 

#

Dates Activity # of 

days

Included in 

calculation?

Number 

of days 

elapsed

1 10/24/13 Complaints filed - - 0

2 10/24/13-

12/17/13

Case progression; 

preliminary 

hearing set for 

12/17/13

54 Yes 54

3 12/17/13-

1/14/14

Hearing 

(postponed per 

Commonwealth 

request)

28 Yes 82

4 1/14/14-

1/28/14

Hearing 

(postponed at 

Appellee's 

request)

14 No 82

5 1/28/2014 Preliminary 

hearings waived

- - 82

6 1/28/14-

3/18/14

Case progression; 

criminal 

information filed 

3/18/14

49 Yes 131

7 3/18/14-

7/14/14

Case progression; 

guilty plea hearing 

set for 7/14/14

118 Yes 249

8 7/14/14-

9/14/14

Guilty plea hearing 

(rescheduled for 

further plea 

negotiations)

62 No 249

9 9/14/14-

12/8/14

Guilty plea hearing 

(rescheduled due 

to difficulties 

arranging video 

conference)

85 No 249

10 12/8/14-

1/26/15

Guilty plea hearing 

(Appellee requests 

trial and time to 

file omnibus 

motion)

49 No 249
J-A14009-16

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11 1/26/15 Jury trial 

scheduled 

(postponed)

- - 249

12 1/26/15-

2/3/15

Hearing postponed

per 

Commonwealth's 

request; additional 

time needed to 

reply

8 No 

(Commonwealth 

at fault, but 

exercised due 

diligence)

249

13 2/3/15 Commonwealth 

files brief 

- - 249

14 2/3/15-

3/10/15

Court takes no 

action

35 No (court delay) 249

15 3/10/15-

5/1/15

Court issues order 

on 3/10/15 

scheduling hearing 

for 5/1/15

52 No (court 

unavailability)

249

16 5/1/2015 Suppression 

hearing; motion 

granted

- -

17 5/1/15-

7/16/15 

Additional pretrial 

motions, including 

motion to dismiss

76 No (litigation of 

pretrial 

motions)

249