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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NIARE LAMAR BROWN

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2091 MDA 2019

Appeal from the Judgment of Sentence Entered December 5, 2019 In the Court of Common Pleas of Lycoming County Criminal Division at

No(s): CP

- 41

- CR

- 0001017

- 2018

BEFORE: OLSON, J., MURRAY, J., and COLINS, J. *

MEMORANDUM BY MURRAY, J.: FILED MAY 29, 20 20

Niare Lamar Brown (Appellant) appeals from the judgment of sentence

imposed after the trial court c onvict ed him of burglary, criminal trespass,

resisting arrest, theft by unlawful taking, a nd receiving stolen property

. 1

Appellant claims that the Commonwealth violated his speedy trial rights under

Pennsylvania Rule of Criminal Procedure 600. We affirm.

On June 10, 2018, Appellant broke into an apartment in Williamsport

and stole a wallet a nd video game console. The victim, upon seeing Appellant

— who was a stran ger in her residence

— confronted Appellant, who fled on

foot. The victim called the police and gave a description of Appellant. A police

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3503(a)(1)(ii), 5104, 3921(a), 3925(a).J

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officer arrived on the scene shortly ther eafter and saw an individual matching

the victim’s description standing nearby in an alley. Appellant ran when he

saw the uniformed officer, who gave chase and tackled Appellant to the

ground. Appellant resisted the officer’s attempts to place him in han dcuffs.

On June 11, 2018, the Commonwealth filed a criminal complaint

charging Appellant with the above crim es. Appellant’s arraignment took place

on June 23, 2018. Appellant pled not guilty, and the trial court placed the

case on the September 11, 2018 pretrial list, with call of the list scheduled for

September 25, 2018. However, as discussed below, the case remained on

the trial list for approximately one year.

Appellant’s case was eventually placed on the backup list, with call of

the list scheduled to occur on April 29, 2019. Appellant’s case was chosen for

jury selection on May 1, 2019. On that date, however, Appellant’s counsel

was ill and unavailable. 2

, 3 Thus , the case was placed on the next call of the

list, with jury selection scheduled for the next trial term, beginning on August

13, 2019.

On August 12, 2019, Appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P. 600. The trial court conducted an evidentiary hearing on the

motion on August 28, 2019, at which the Deputy Court Administr ator for

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2 Notably, t he next day, i.e. , May 2, 2019, was the final day of jury selection

for that tr ial term.

3 Neither defense counsel nor the Commonwealth requested a continuance.J

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Lycoming County testified. The trial court denied Appellant’s motion by an

opinion and order entered September 25, 2019.

The matter proceeded to a non

- jury trial on September 27, 2019, at the

close of which the trial court found Appellant guilty of all counts. On December

5, 2019, the court sentenced Appellant to an aggregate 3 to 6 years in prison.

He filed a timely notice of appeal, followed by a court

- ordered Pennsylvania

Rule of Appellate Procedure 1925(b) concise statement.

Appellant presents one question for our review:

Did the lower court abuse its discretion in denying Appellant’s Rule 600 motion to dismiss when the Commonwealth did not bring Appellant to trial within 365 days of the complaint and failed to prove it acte d with due diligence in the face of avoidable delay?

Appellant’s Brief at 4 ( capitalization omitted).

Our standard of review is as follows:

This Court reviews a ruling under Rule 600 pursuant to an
abuse

- of

- discretion standard. An abuse of discretion is not a mere

error in judgment but, rather, involves bias, ill will, partiality, prejudic e, manifest unreasonableness, or misapplication of law. Additionally, when considering a Rule 600 claim, this Court must

view the record facts in the light most favorable to the winner of

the Rule 600 motion. It is, of course, an appellant’s burden to persuade us the trial court erred and relief is due.

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 t he 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 [a] crime and to deter those contemplating it. However, the administrative mandate of Rule

600 was not designed to insulate the criminally accused from goodJ

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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 righ ts of an accused, Rule 600 must be construed in

a manner consistent with society’s right to punish and deter crime.

In considering these matters, courts must carefully factor into the

ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law

enforcement as well.

Commonwealth v. Martz , 2020 PA Super 104, **10

- 11 (Pa. Super. 2020)

(citations and ellipses omitted).

Rule 600 provides in pertinent part as follows:

(A) Commencement of Trial; Time for Trial

...

(2) Trial shall commenc e within the following time periods.

(a) Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed.

...

(C) Computation of Time

(1) For purposes of paragraph (A), periods of delay at any stage of the proceedings caused by the

Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence. Any other periods of d elay shall be excluded from the computation.

Pa.R.Crim.P. 600(A), (C).

To summarize, the courts of this Commonwealth employ three steps in determining whether Rule 600 requires dismissal ofJ

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charges against a defendant. First, Rule 600(A) provides the

mechanical run date . Second, we determine whether any excludable time exists pursuant to Rule 600(C). We add the amount of excludable time, if any, to the mechanical run date to

arrive at an adjusted run date

.

Commonwealth v. Bethea , 185 A.3d 364, 371 ( Pa. Super. 2018) (citation,

emphasis, and ellipses omitted).

“Excludable time” is classified as periods of delay caused by the

defendant. Pa.R.Crim.P. 600(C)(2). “Excusable delay” occurs where the delay is caused by circumstances beyond the

Commonwealth’s control and des pite its due diligence. D ue 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. Moore , 214 A.3d 244, 248

- 49 (Pa. Super. 2019) (case

citations and quotation marks omitted).

A defendant is not automatically entitled to discharge under Rule 600

where, as here, trial starts more than 365 days after the fi ling of the

complaint. Id. at 248. Rather,

Rule 600 encompasses a wide variety of circumstances under

which a period of delay was outside the control of the

Commonwe alth and not the result of the Commonwealth’s lack of diligence. Any such period of delay results in an extension of the

run date

. Addition of any Rule 600 extensions to the adjusted run date produces the final Rule 600 run date

. If the Commonwealth

does not bring the defendant to trial on or before the final run date, the trial court must dismiss the charges.

Bethea , 185 A.3d at 371 (citation and brackets omitted). “In assessing a

Rule 600 claim, the court must exclude from the time for commencemen t ofJ

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trial any periods during which the defendant was unavailable[.]”

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

Here, Appellant argues that the trial court abused its discretion in

denying his Rule 600 motion because the Comm onwealth failed to exercise

due diligence in bringing him to trial, and the court improperly found that

there were periods of excusable delay. See Appellant’s Brief at 15

- 16.

According to Appellant, the Commonwealth never made any attempt to call

the cas e for jury selection. Id. at 20. Appellant further argues that at the

Rule 600 hearing, “the Deputy Court Administrator made a bare, unsupported

assertion that the Commonwealth was prepared for trial; no evidence supports

that the Commonwealth was dilige nt.” Id. at 17. Appellant concedes that his

defense counsel was ill and unavailable on May 1, 2019, the date on which

jury selection was scheduled. Id. at 13, 20. However, Appellant points out

that the Commonwealth never requested a continuance in resp onse to defense

counsel’s unavailability on that date. Id. Appellant also maintains that jury

selection could have occurred the next day, May 2, 2019, which was “the final

day of jury selection [for that trial term], and thus the last opportunity to brin g

[Appellant] to trial prior to the end of the Rule 600 period.” Id. at 21; see

also id. at 22 (asserting that because “five of the six cases scheduled for May

2[, 2019] ended up being guilty pleas, it seems that the court could have

called [Appellant] on May 2 had the Commonwealth simply made a request.”).

Finally, Appellant argues that the re is “simply no evidence” that the delay wasJ

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unavoidable, and “any [] conclusion [to the contrary] is pure speculation.” Id.

at 21.

Conversely, and i n support of its dismissal of Appellant’s Rule 600

motion, the trial court opin ed:

[T]he circumstances occasioning the delay were entirely beyond the Commonwealth’s control. The Commonwealth was continually prepared to try the case. The case continued on the trial list. It was called for jury selection and trial within its adjusted Rule 600 date[, which was June 11, 2019]. On the date that the case was set for jury selection, [ i.e. , May 1, 2019,] defense counsel was not available because he was ill. While [Appellant] is correct that [defense counsel] did not request a continuance, there is no

evidence i n the record that defense counsel notified the court or the Commonwealth that[,] given his illness, he would be available the next day[ , May 2, 2019,] for jury selection. While [Appellant] is also correct that the Commonwealth did not contact the Deputy

C ourt Administrator to request that the case be listed for jury selection [on May 2, 2019,] there were six cases already scheduled to be picked [on that date,] and only two judges [were] available. All of those cases had adjusted Rule 600 dates earlier

tha n [that of Appellant]. All of those cases had counsel ready and willing to participate in jury selection. It would be entirely unreasonable[,] given the process of how cases are listed and called in Lycoming County[, 4 ] for the Commonwealth to change[,

i. e. , in response to defense counsel’s unavailability on May 1, 2019,] and essentially disrupt the entire jury selection process the next day.

_________________ __________ ______ ____ _______

4 T he trial court explained that “[c]onsistent with the court’s practice during jury selection, cases are listed to be called[,] but once they begin to resolve,

the backup cases are selected for jury selection and trial. ... It is the practice of the court at the end of the original call of the list to advise counsel that any case on the backup list is subject to being called .” Opi nion and Order, 9/25/19, at 2

- 3; see also N.T., 8/28/19, at 19 (trial court advising defense

counsel: “Y our office and you were notified that any case on the backup list could be called. It was called on [May 1, 2019]. The Commonwealth was ready to go. You were not ready to go.” ).J

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Opinion and Order, 9/25/19, at 4 (footnote added, paragraph break omitted). 5

Our review discloses that the tria l court’s rationale is supported by the

law and the record. Appellant’s counsel contends that the Commonwealth was

required to “do everything in their power” 6 to ensure that the case was

brought to trial; however, this is not the applicable legal standard

. See

Moore

, supra (emphasizing that “[d] ue diligence does not require perfect

vigilance and punctilious care, but rather a showing by the Commonwealth

that a reasonable effort has been put forth”) (emphasis added); see also

Hunt

, 858 A.2d at 1242 (stating that “r easonable effort” includes such actions

as the Commonwealth listing the case for trial prior to the Rule 600 run date,

and citing Commonwealth v. Hill , 736 A.2d 578, 592 (Pa. 1999) (holding

that the Commonwealth exercised due diligence when it initially scheduled

trial within the time requirements of Rule 600, but trial was delayed by actions

of the defendant beyond the Commonwealth’s control)); Commonwealth v.

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5 Moreo ver, at the Rule 600 hearing, the trial court stated as follows in response to defense counsel’s claim that the Commonwealth did not contact the Deputy Court Administrator to request that the ca se be listed for jury

selection: “it doesn’t matter because [the case] was called[, i.e. , on May 1, 2019]. ... So once the case was called, the Commonwealth knew that they didn’t have to take any special precautions .... The case was called within the adjusted Rule 600 date.” N.T., 8/28/ 19, at 18; see also id. (defense counsel

agree ing with the court’s assessment of the run date ).

6 See N.T., 8/28/19, at 24 (defense counsel argu ing that even though he was unavailable on May 1, 2019, the date on which the case was listed for jury

selectio n, the Commonwealth should have done everything in its power to ensure the case was listed the next day, May 2, 2019, regardless of there

be i n g six other cases already listed for jury selection on that date )

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Colon , 87 A.3d 352, 359 (Pa. Super. 2014) (stating “[t]he Commonwealth

must do ev erything reasonable within its power to guarantee that a trial

begins on time[.]” (emphasis added, citation omitted)). Additionally, there is

no evidence whatsoever that the Commonwealth engaged in misconduct to

evade Appellant’s speedy trial rights. See Martz

, supra

. Finally, we discern

nothing in the record to support Appellant’s challenge to the testimony of the

Deputy Court Administrator that the Commonwealth was prepared to try

Appellant’s case on May 1, 2019. Accordingly, the trial court did not a buse its

discretion in denying Appellant’s Rule 600 motion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/29/2020