J-S21043-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NATHAN TOWNSEND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 197 EDA 2023

Appeal from the Judgment of Sentence Entered December 19, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003591-2018

BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 5, 2024

Nathan Townsend (Appellant) appeals from the judgment of sentence 

imposed after a jury convicted him of one count each of rape of a child, 

corruption of minors, indecent assault of a person less than 13 years of age, 

and unlawful contact with a minor.1 After careful review, we affirm. 

On January 7, 2018, the Commonwealth filed a criminal complaint 

charging Appellant with, inter alia, the above offenses. The charges stemmed 

from allegations that Appellant anally penetrated a minor victim (A.A.) on 

numerous occasions over several years. On September 19, 2022,2 Appellant 

____________________________________________

1 18 Pa.C.S.A. §§ 3121(c), 6301(a)(1)(ii), 3126(a)(7), 6318(a)(1).

2 On September 8, 2022, Appellant filed a motion to dismiss alleging violations

of his state and federal constitutional speedy trial rights and Pa.R.Crim.P. 600. 

On September 16, 2022, following a hearing, the trial court denied Appellant’s 

motion. 
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proceeded to a jury trial. The trial court summarized the testimony adduced 

at trial:

The testimony established that when [A.A.] was six years 

old, she was living with her mother, Hawwah Aziz[, (Ms. Aziz)]. 

N.T., 9/20/22, at 48. When A.A. was between the ages of six and 

eight years old, [Ms. Aziz] was working as a chef outside of 

Philadelphia, which required her to leave for work very early. Id.

at 65, 139-140. Accordingly, Ms. Aziz made arrangements for her 

brother, Robert Hanson (A.A.’s uncle[, Mr. Hanson]), to watch 

A.A. in the morning, and take her to school, which was near his 

home. Mr. Hanson lived with his girlfriend, Betty Jackson[ (Ms. 

Jackson)], and her [adult] son, Appellant []. ... Ms. Aziz would 

wake A.A. early in the morning, between 4:00 and 5:00 [a.m]., 

and take her to Mr. Hanson’s house, where he would make up a 

place for her to sleep in the living room, and A.A. would go back 

to sleep for a few hours before getting up to go to school. Id. at 

48-50, 139.

In the morning, while A.A. was sleeping at [Mr. Hanson’s] 

house, Appellant would climb into bed with A.A. and penetrate her 

anus with his penis. Id. at 52-54. This went on nearly every 

school day for approximately two [to] three years, continuing 

when Mr. Hanson, [Ms. Jackson,] and Appellant moved to another 

home. Id. at 55, 56, 72, 81. A.A. did not tell anyone what was 

happening, because she was afraid of her parents getting upset 

and of getting in trouble. Id. at 54. 

However, when A.A. was eight years old, she went on 

vacation to the Jersey Shore with her aunt and her aunt’s family. 

Id. at 59, 96. One of A.A.’s cousins told their mutual 

grandmother, Brenda Hanson[ (Grandmother)], that A.A. was 

crying the whole vacation, but would not say why. Id. at 96. 

[Grandmother] took [A.A.] aside and asked her questions in an 

attempt to ascertain why she was upset. Id. at 58, 97-98. A.A. 

said that she did not want to go back to [Mr. Hanson’s] house, 

and said they were mean to her. Id. at 98. U[pon] further 

questioning, A.A. eventually told her grandmother that Appellant 

had anally penetrated her multiple times. Id. at 99-101, 111. 

[Grandmother] then called Ms. Aziz to come to her house. Upon 

learning what had happened, Ms. Aziz called the police. Id. at 60, 

103, 154.
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Officer [Marcus] Baker responded to [Grandmother]’s 

house, where he spoke to A.A., who told him that Appellant had 

been touching her private parts with his private parts. Id. at 158, 

162, 164-65, 170. A.A., [Ms. Aziz, and Grandmother] were then 

taken to the Special Victims Unit, where Detective Jonathan Ruth 

referred A.A. to the Philadelphia Children’s Alliance to be 

interviewed. Id. at 104-05, 177-78; N.T., 9/21/22, at 31-32. 

That interview was video recorded. See Exhibit C-2. A.A. was 

then taken to Children’s Hospital of Pennsylvania [(CHOP),] where 

she was examined and found to be “normal,” meaning [the 

examination revealed] no signs of intercourse. N.T., 9/20/22, at 

61-62; N.T., 9/21/22, at 59-60. [Dr. Philip Scribano (Dr. 

Scribano) testified at trial] that such a normal presentation was 

not inconsistent with repeated anal penetration of a child by an 

adult male. N.T., 9/21/22, 60-63, 67.

Trial Court Opinion, 7/6/23, at 2-3 (some citations modified). 

On September 22, 2022, the jury convicted Appellant of the above 

offenses. On December 19, 2022, the trial court sentenced Appellant to an 

aggregate 5 to 14 years in prison, followed by three years’ probation. The 

trial court further imposed lifetime sex offender registration pursuant to the 

Pennsylvania Sex Offender Registration and Notification Act,

3 which generated 

litigation irrelevant to the instant appeal. Appellant timely appealed. Both 

the trial court and Appellant have complied with Pa.R.A.P. 1925. 

On September 28, 2023, Appellant filed a petition for remand with this 

Court. Therein, Appellant asserted the trial court

denied [A]ppellant’s Motion to Dismiss based on Rule 600([A]), 

finding the Commonwealth was duly diligent in bringing 

[A]ppellant to trial. When the Motion turned to the state and 

federal constitutional grounds, and specifically the factors 

enunciated in Barker v. Wingo, 407 U.S. 514 (1972), the trial 

____________________________________________

3 See 42 Pa.C.S.A. §§ 9799.14 - 9799.15.
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court conflated the Rule 600 grounds with the due process 

provisions of the state and federal constitutions, and refused to 

hear evidence regarding the prejudice prong of Barker v. Wingo. 

The trial court denied this constitutional claim, failing to recognize 

it as a separate and distinct basis of the Motion.

 

Petition for Remand, 9/28/23, at 1 (unpaginated). Appellant argued that,

because the trial court acknowledged this error in its Rule 1925 opinion 

(discussed further below), his case should be remanded to afford him the 

opportunity “to present evidence or call witnesses on the issue.” Id. at 2 

(unpaginated). We denied Appellant’s request without prejudice to his ability 

to raise the issue in his appellate brief. See Order, 11/9/23, at 1. 

Appellant presents the following issues:

A. Did the [trial] court err and abuse its discretion when it 

denied [Appellant’s] motion to dismiss pursuant to [Pa.R.Crim.P.] 

600(A)[,] where well more than 365 days had passed subsequent 

to the adjusted run date, and the Commonwealth failed to exercise 

due diligence in bringing the case to trial?

B. Did the [trial] court err and abuse its discretion when it 

denied [A]ppellant’s motion to dismiss[,] based on properly raised 

constitutional speedy trial grounds[,] when it erroneously 

conflated Rule 600 with the constitutional speedy trial claims, and 

denied the defense an opportunity to call it[]s proffered witness 

to establish prejudice[,] as required under Barker v. Wingo?

C. Did the trial court deprive [] Appellant of his right to a fair 

and impartial jury by refusing to ask prospective jurors on voir 

dire whether they believed a child could lie about being sexually 

abused, which prevented Appellant from potentially uncovering 

prejudicial biases or fixed opinions that would have disqualified 

jurors from serving?

Appellant’s Brief at 3.
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Appellant’s first issue challenges the trial court’s denial of his motion to 

dismiss pursuant to Pa.R.Crim.P. 600. Id. Specifically, Appellant challenges 

the trial court’s exclusion from its Rule 600 calculation two periods of delay: 

1) the 98-day period between the first trial listing (December 10, 2019) and 

the Covid-19-related suspension of Rule 600 (March 17, 2020) (the 98-day

delay);

4 and 2) the 353-day period between the end of the suspension of Rule 

600 (October 1, 2021) and trial (September 19, 2022) (the 353-day delay). 

See Appellant’s Brief at 11. 

“In general, a trial court’s denial of a Rule 600 motion is reviewed for 

an abuse of discretion; however, it is subject to plenary review when the 

dispositive question implicates legal issues.” Commonwealth v. Lear, 290 

A.3d 709, 718 (Pa. Super. 2023) (citing Commonwealth v. Harth, 252 A.3d 

600, 614 n.13 (Pa. 2021)). “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. Brown, 281 A.3d 320, 

325 (Pa. Super. 2022) (citation omitted). 

____________________________________________

4 Appellant concedes the local administrative orders suspending court 

functions due to the Covid-19 pandemic suspended Rule 600. See Appellant’s 

Brief at 11, 39; see also Commonwealth v. Malone, 294 A.3d 1247, 1249 

(Pa. Super. 2023) (“If an order unambiguously suspends Rule 600 without 

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

without considering the Commonwealth’s diligence.” (quoting 

Commonwealth v. Lear, 290 A.3d 709, 719 (Pa. Super. 2023)). 
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“Rule 600 has the dual purpose of both protecting a defendant’s 

constitutional speedy trial rights and protecting society’s right to effective 

prosecution of criminal cases.” Commonwealth v. Womack, 315 A.3d 

1229, 1237 (Pa. 2024) (quoting Commonwealth v. Bradford, 46 A.3d 693, 

700 (Pa. 2012)). Rule 600 provides, in part:

(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.

* * *

(C) Computation of Time

(1) For purposes of paragraph (A), periods of delay at any 

stage of the proceedings caused by the Commonwealth when 

the Commonwealth has failed to exercise due diligence shall 

be included in the computation of the time within which trial 

must commence. Any other periods of delay shall be excluded 

from the computation.

* * *

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

continuance:

* * *

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

the continuance and the reasons for granting or denying the 

continuance. The judge shall record to which party the 

period of delay caused by the continuance shall be 
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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.

* * *

(D) Remedies

(1) When a defendant has not been brought to trial within the 

time periods set forth in paragraph (A) at any time before trial, 

the defendant’s attorney, or the defendant if unrepresented, 

may file a written motion requesting that the charges be 

dismissed with prejudice on the ground that this rule has been 

violated....

Pa.R.Crim.P. 600. 

When conducting a Rule 600 analysis, we have explained:

Generally, Rule 600 requires that a defendant be brought to trial 

within 365 days of the filing of the criminal complaint. 

Pa.R.Crim.P. 600(A)(2)(a). However, a defendant is not 

automatically entitled to discharge under Rule 600 where trial 

starts more than 365 days after the filing of the complaint. 

Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super. 

2013).

Commonwealth v. Martz, 232 A.3d 801, 810 (Pa. Super. 2020) (some 

citations omitted).

“[P]eriods of delay at any stage of the proceedings caused by the 

Commonwealth when the Commonwealth has failed to exercise 

due diligence” forms the basis of what is known as “includable 

time.” See Pa.R.Crim.P. 600(C)(1). Conversely, all other periods 

of delay are excluded from the Rule 600 calculation. See id.

Commonwealth v. Wiggins, 248 A.3d 1285, 1289 (Pa. Super. 2021)

“Due diligence is a fact-specific concept that must be determined 

on a case-by-case basis. Due diligence does not require perfect 

vigilance and punctilious care, but rather a showing by the 

Commonwealth that a reasonable effort has been put forth.”

Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super. 
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2013) (citation omitted). Due diligence includes, inter alia, listing 

a case for trial prior to the run date, preparedness for trial within 

the run date, and keeping adequate records to ensure compliance 

with Rule 600. Commonwealth v. Ramos, 936 A.2d 1097, 1102 

(Pa. Super. 2007). 

Martz, 232 A.3d at 810-11 (some citations omitted). “[D]ue diligence must 

be proven by the Commonwealth, and assessed by the court, before ‘judicial 

delay’ becomes a consideration in the time calculation for Rule 600.” Harth, 

252 A.3d at 614 (citation omitted).

We have further observed:

It would certainly not serve the dual purpose of Rule 600 if a 

defendant could demand a jury trial ... during a time when it is 

impossible for the Commonwealth to conduct a jury trial, and 

determine that the resulting delay was not excusable under the 

Rule. 

Commonwealth v. Faison, 297 A.3d 810, 824 (Pa. Super. 2023); see also 

Commonwealth v. Marnoch, ___ A.3d ___, 2024 WL 2716427, *7-8 (Pa. 

Super. filed May 28, 2024) (“[W]here a trial-ready prosecutor must wait 

several months due to a court calendar, the time should be treated as ‘delay’ 

for which the Commonwealth is not accountable.” (citation omitted)).

The Commonwealth filed its criminal complaint against Appellant on 

January 7, 2018. Criminal Complaint, 1/7/18. Thus, under Rule 600, the 

mechanical run date for Appellant’s trial was Monday, January 7, 2019. At 

the time of Appellant’s September 19, 2022, trial, 1,717 days had elapsed 

since the institution of charges – 1,352 days beyond the mechanical run date.
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At the September 16, 2022, Rule 600 hearing, the parties agreed the 

following time periods were excludable for Rule 600 purposes: 

• April 16, 2018, to May 10, 2018 (24 days), see N.T., 9/16/22, at 9. 

• December 18, 2018, to December 10, 2019 (364 days), see id. at 12-

13. 

• March 17, 2020, to October 1, 2021 (563 days), see id. at 8. 

Thus, the parties agreed that 951 days were excludable. 

Moreover, the trial court ruled two additional periods of court delay were 

excludable: first, the 98-day delay due to the trial court’s unavailability; and 

second, the 353-day delay attributable to the court’s congested calendar in 

the aftermath of the Covid-19 pandemic. Id. at 21, 24, 28-31; see also Trial 

Court Opinion, 7/6/23, at 7. Adding these periods of court delay to the 

agreed-upon 951-day calculation results in 1,402 days of excludable time, 

adjusting the Rule 600 run date to approximately two months after 

Appellant’s September 19, 2022, trial. 

Concerning the 98-day delay, Appellant argues that the “Commonwealth 

did not deal in good faith with [Appellant] in turning over its expert’s report, 

and the [98-day delay] should be attributable to the Commonwealth.” 

Appellant’s Brief at 25. Appellant explains his position as follows:

In the summer of 2019, the defense began emailing the [the 

assigned assistant district attorney (ADA)], requesting an expert 

report for its proffered expert, Dr. Scribano. The Commonwealth 

ignored this email for a month, and the defense was forced to 

send a follow[-]up email. The Commonwealth responded that [it]

was on its “to[-]do” list. Instead of taking action upon receipt of 
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the request, and making it number 1 on its “to-do” list, as the 

case was already nearly 2 years old at that point, the discovery 

request presumably dropped to a lower priority as it certainly was 

not acted upon.

Nearly a month later, the defense emailed [the ADA] again 

on November 12, 2019, asking for an update on the expert report. 

[The ADA] responded the same day, and informed [the defense] 

that her expert had moved, and that she was searching for a new 

doctor to testify.

....

Then, nearly a month later[,] on December 2, 2019, a week 

before trial, [the ADA] corrected herself, that she had the experts 

confused, and that Dr. Scribano had not moved. She told [the 

defense] that [Dr. Scribano’s] CV and letter providing notice of his 

testimony had already been [supplied in discovery]. She did not 

address anything about the expert report. 

Id. at 26-27. Appellant contends that the Commonwealth was not diligent in 

providing the requested discovery, and, as a result, the court’s delay should 

be attributable to the Commonwealth. Id. at 26. 

In support of his position, Appellant relies on Commonwealth v. Dunn, 

300 A.3d 324 (Pa. 2023) (plurality),

5

for the proposition that Pa.R.Crim.P. 573 

(detailing discovery obligations) “applies with equal force to expert reports 

____________________________________________

5 Appellant does not address Dunn’s precedential value. Generally, “plurality 

decision[s] of [the Pennsylvania Supreme] Court d[o] not constitute binding 

precedent[.]” Commonwealth v. Baldwin, 985 A.2d 830, 835 (Pa. 2009)

(citation omitted). Dunn is a per curiam decision, further calling into doubt 

its precedential value. See Dunn, 300 A.3d at 324; see also 

Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2009) (“[T]he legal 

significance of per curiam decisions is limited to setting out the law of the 

case.”)). Regardless, we need not decide the precedential effect of Dunn, as 

even if it is binding precedent, it affords Appellant no relief. 
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based on the subject matter in [42 Pa.C.S.A. §] 5920[ (providing for the use 

of experts in certain cases to opine as to victim responses and behaviors)].” 

Appellant’s Brief at 28 (quoting Dunn, 300 A.3d at 340 (Justice Mundy, in 

support of affirmance)). 

The Commonwealth responds that it provided all discovery “and was 

trial-ready before both contested periods of trial delay, which were caused 

solely by the trial court’s own scheduling conflicts and procedures.” 

Commonwealth Brief at 13. The Commonwealth argues that Appellant 

“ignores the fact that he only filed a formal request for the [expert] report five 

days before [the initial December 10, 2019,] trial date,” and the 

Commonwealth “paid for, created, and disclosed the requested report within 

merely four days of his request.” Id. at 14. The Commonwealth further points 

out that it provided notice of its intention to utilize expert testimony “far in 

advance of [] trial[.]” Id. at 14; see also Motion to Dismiss, 9/8/22, at 4 

(Appellant acknowledging he was aware the Commonwealth intended to call 

an expert witness since at least July 30, 2019). 

The trial court addressed Appellant’s claim concerning the 98-day delay 

in its Rule 1925 opinion:

The docket indicates that the case was continued to June 16, 

2020, because the court was [in trial on another case]. N.T., 

9/16/22, at 14. The Covid[-19] emergency order went into effect 

on March 17, 2020. Appellant argued that the 98 days between 

the December 10, 2019, continuance and the March 17, 2020, 

lockdown should be charged to the Commonwealth, because it had 

not produced an expert report, and thus would not have been 

ready for trial. Id. at 66.
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However, the Commonwealth was not required to 

produce an expert report. If Appellant wanted an expert 

report, he could have asked the court to compel one 

pursuant to Pa.R.C[rim].P. 573(B)(2)(b).

6

 He did not do so 

until December 5, 2019, five (5) days before the case was 

scheduled for trial. N.T., 9/16/22, at 18. Yet, the mere filing of 

the motion did not create an obligation on the Commonwealth. 

Requiring the creation of an expert report is left to the discretion 

of the court. Pa.R.C[rim].P. 573(B)(2)(b). Only if and until a 

court orders a report is there a duty on the part of the 

Commonwealth to produce one. Here, the record does not 

indicate that [an expert report was court-ordered]. N.T., 

9/16/22, at 60. But even if [the court] did so on December 10, 

2019, this would not implicate any lack of diligence on the 

Commonwealth’s part. Appellant sat on his rights until the eve of 

trial.

The record is clear that the Commonwealth was 

prepared to proceed with its expert, without a report, and 

that it was Appellant’s counsel who wanted a report, even 

though no timely motion had been filed and no report had 

been ordered:

THE COURT: So communications can be seen both 

ways. I’m reading parts of [the email correspondence

dated] December 3, 2019, at 4:40 p.m. from [the 

assigned ADA]: [“]I can’t really answer that without 

knowing if [the court] will order a report to be 

produced and how quickly I can get one done, but I 

don’t see why we can’t proceed to trial next week.[”] 

....

It seems that all those communications ...

beginning [in] July ... led to communications in early 

December that the Commonwealth was ready to 

____________________________________________

6 Rule 573(B)(2)(b) provides, “[i]f an expert whom the attorney for the 

Commonwealth intends to call in any proceeding has not prepared a report ..., 

the court, upon motion, may order that the expert prepare... a report ....” 

Pa.R.Crim.P. 573(B)(2)(b) (emphasis added). 
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proceed without a report. Then the motion to compel 

was filed.

Under these circumstances, the court concluded that the 

continuance by [the court] due to [it] being on trial, was not 

vitiated by Commonwealth unavailability due to lack of an expert 

report, or otherwise. To the contrary, the Commonwealth was 

ready to proceed to trial on December 10, 2021. The 

Commonwealth was duly diligent[,] and the delay was caused by 

the court. See Harth, 252 A.3d at 618.

Trial Court Opinion, 7/6/23, at 6-7 (citations modified; footnote and emphasis

added). 

The trial court’s findings are supported by the record, and its legal 

conclusion is sound. Appellant failed (until the eve of trial) to avail himself of 

Rule 573(B)(2)(b)’s procedure for compelling the creation of an expert report. 

Thus, the trial court correctly concluded the Commonwealth was under no 

obligation to generate a report, and its refusal to do so did not impute a lack 

of due diligence on the part of the Commonwealth. Further, Appellant has not 

directed this Court to any applicable authority recasting his own failure to 

timely litigate this issue as Commonwealth negligence. Accordingly, the trial 

court did not err in excluding the 98-day delay from the Rule 600 calculation.

Concerning the 353-day delay, Appellant contends:

Once the Covid-19 Order was lifted and the clock began to tick 

again,... the Commonwealth [did not] ask for the earliest possible 

date or try to have the case relisted earlier than the nearly year[-

]out date it received of September 19, 2022. The record is devoid 

of any evidence that the Commonwealth acted with any diligence 

in securing a timely trial date for [Appellant].

Appellant’s Brief at 31. 
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In support of his argument, Appellant primarily relies on 

Commonwealth v. Hawk, 597 A.2d 1141 (Pa. 1991), wherein the 

Pennsylvania Supreme Court stated:

[T]he Commonwealth should be held to the requirement that it 

exercise due diligence at all times during the pendency of a case. 

Although the Commonwealth had no actual control over when 

cases were listed in the courtroom due to the Individual Judge 

Calendar system, the Commonwealth failed to take any 

affirmative action to get the case moving by listing it for trial when 

the trial judge was ill and then on vacation ....

Appellant’s Brief at 33 (quoting Hawk, 597 A.2d at 1145). 

The Commonwealth responds,

The docket clearly mentions the COVID-19 pandemic and the bail 

protocols established in response. See Docket, Entries 133-34. It 

also repeatedly indicates that the Commonwealth was ready to 

proceed to trial[.] See Docket, Entries 136-42 (mentioning that 

there were no motions to be litigated and discovery was 

complete). Further, at the Rule 600 hearing, the [trial] court took 

judicial notice of the situation plaguing the courts at the time

[A]ppellant’s trial was scheduled.

Commonwealth Brief at 19. 

Although a substantial period of time elapsed between the filing of 

Appellant’s criminal complaint and trial, in its Rule 1925 opinion, the trial court 

explained that

the bulk of the delay was due to Covid[-19] restrictions, which 

essentially shut down the [c]ourt, followed by attempts by the 

[c]ourt to ramp back up and try the cases which had been put on 

hold, prioritizing trial for defendants in custody, over those, like 

Appellant, who were not.7

____________________________________________

7 On October 11, 2018, the trial court converted Appellant’s secured bail to 

nominal bail with the condition of house arrest. See Order, 10/11/18.
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Trial Court Opinion, 7/6/23, at 5 (footnote added). The record supports the 

trial court’s findings.

At the September 16, 2022, Rule 600 hearing, the trial court explained 

as follows concerning the court’s congested calendar in the aftermath of the 

Covid-19 pandemic:

[T]he situation was, as counsel says and as we all experienced, 

that the [trial] dates [] given were really, really long by necessity 

because of our limited capacity to move cases at the time[,] and 

the new protocols and everything that comes with it. Clearly, the 

Commonwealth was not in charge of that.

N.T., 9/16/22, at 28. Discussing the Custody Accelerated Resolution Program 

(CARP), instituted by Philadelphia courts in response to the pandemic, the trial 

court continued:

A salient part of [CARP] is that bail defendants didn’t get 

priority in the scheduling of trial dates. So it’s not like in the old 

days where you could explore choices with the [c]ourt’s calendar 

or maybe sending [a case] to a different courtroom for trial to get 

the matter to trial earlier.

That’s not what we all experienced. Just like it was out of 

[Appellant’s] control, it was out of the Commonwealth’s control. 

It was the [c]ourt doing that. ....

Id. at 31. 

The record supports the trial court’s findings, and its legal conclusion is 

sound. Appellant acknowledges that the docket reflects “the earliest possible 

date for trial was May 28, 2019, and the case was given a trial date of June 

14, 2019.” Appellant’s Brief at 21 n.2. Even if that date was administratively 

selected, and not listed at the request of the Commonwealth, Appellant fails 
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to explain why the Commonwealth should have again requested a date when 

trial was already scheduled. 

The record further supports the trial court’s conclusion that the 

Commonwealth was not able to request Appellant’s case be moved to another 

judge in order to expedite trial. See N.T., 9/16/22, at 31; see also 

Commonwealth v. Anderson, 959 A.2d 1248, 1252 (Pa. Super. 2008) 

(holding the Commonwealth acted with due diligence where “there was no real 

opportunity for the Commonwealth to seek a different courtroom.”); Faison, 

297 A.3d at 824. As the trial court did not err in excluding either of the abovediscussed periods of delay, and because Appellant’s trial occurred within the 

adjusted Rule 600 run date, Appellant’s first issue merits no relief. 

In his second issue, Appellant claims the trial court erred when it failed 

to consider his state and federal constitutional speedy trial claims and denied 

him the opportunity to present evidence of prejudice.

8

 Appellant’s Brief at 36. 

Appellant alleges Ms. Jackson died during the pendency of Appellant’s case,9

and that she would have offered exculpatory testimony at trial. Id. at 41. 

Appellant argues the trial court erred when it refused to permit Appellant to 

____________________________________________

8

In its brief, the Commonwealth indicated it “does not oppose a limited 

remand to develop the record regarding prejudice[,]” but does not concede

Appellant is entitled relief. Commonwealth Brief at 20.

9 At the September 16, 2022, Rule 600 hearing, Appellant and the 

Commonwealth stipulated “that Ms. [] Jackson has passed away.” N.T., 

9/16/22, at 7. 
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present testimony from his investigator concerning 1) the content of Ms. 

Jackson’s proposed, purportedly exculpatory statement to the defense; and 

2) “the inability to find the original treating physician at CHOP[,] as well as 

the original social worker who interviewed [A.A.] at CHOP....” Id. at 40. 

Consequently, Appellant requests this Court remand his case so that he may 

present the proffered testimony for the trial court’s review. Id. at 43.

“The Sixth Amendment to the United States Constitution and Article I, 

Section 9 of the Pennsylvania Constitution guarantee a criminal defendant the 

right to a speedy trial.” Commonwealth v. DeBlase, 665 A.2d 427, 432 

(Pa. 1995) (footnote omitted). 

“In evaluating speedy trial issues, our standard of review is 

whether the trial court abused its discretion, and our scope of 

review is limited to the trial court’s findings and the evidence on 

the record, viewed in the light most favorable to the prevailing 

party.” Commonwealth v. Miskovitch, 64 A.3d 672, 677 (Pa. 

Super. 2013) (citation and quotation marks omitted). Speedy trial 

analysis requires a two-step inquiry: “we first consider whether 

the delay violated Pa.R.Crim.P. 600, and if not, we may proceed 

to the four-part constitutional analysis set forth in Barker [v. 

Wingo, 407 U.S. 514 (1972)].” Commonwealth v. Colon, 87 

A.3d 352, 357 (Pa. Super. 2014).

Martz, 232 A.3d at 812 (Pa. Super. 2020). Barker’s four-part constitutional 

analysis requires consideration of 1) the length of the delay; 2) the reason for 

the delay; 3) the defendant’s assertion of his right; and 4) prejudice to the 

defendant. See Commonwealth v. Bradford, 46 A.3d 693, 700-01 (Pa. 

2012) (discussing Barker). “A finding in the defendant’s favor of any one of 

the four factors, standing alone, does not constitute a speedy trial violation.” 
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DeBlase, 665 A.2d at 432 (citation omitted). “[E]ach of the four factors are 

related and each must be weighed carefully in the court’s evaluation of a 

criminal defendant’s claim that his speedy trial rights were violated.” Id.

(citation omitted). 

In Commonwealth v. Hamilton, [] 297 A.2d 127, 130-33 

([Pa. ]1972), the Pennsylvania Supreme Court deemed the 

Barker balancing test inadequate to ensure a defendant’s right to 

a speedy trial under the Pennsylvania Constitution. The Court has 

also suggested that “the prompt trial rule [i.e., Rule 600] ... 

represents the sole means of securing a defendant’s state 

constitutional right to a speedy trial.” Commonwealth v. 

Meadius, [] 870 A.2d 802, 803 n.1 ([Pa. ]2005) (citing 

Commonwealth v. Whitaker, [] 359 A.2d 174, 176 ([Pa. 

]1976). The Court has continued to apply the balancing test in 

cases where an appellant presents independent claims premised 

on both the procedural rule and the constitutional guarantees. [] 

DeBlase, [] 665 A.2d [at] 431 []. 

Martz, 232 A.3d at 812. 

In its Rule 1925 opinion, the trial court acknowledged that it 

“erroneously asserted that the constitutional speedy trial analysis was 

subsumed in Rule 600.” Trial Court Opinion, 7/6/23, at 8 (citation omitted). 

Nevertheless, the trial court concluded that Appellant’s constitutional speedy 

trial claim would not have entitled him relief:

[T]here was no delay in violation of Rule 600(a)[;]

accordingly, we turn to the Barker analysis to determine whether 

there was a delay of constitutional dimension. Here, Appellant 

fails the Barker analysis.

In actual time, without regard to Rule 600, the time from 

Appellant’s arrest to his trial in September of 2022 was 1,717 days

(NT 9/16/22, 74), or 4.7 years. A delay of this length, in isolation, 

is presumptively prejudicial, triggering examination of the other 
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Barker factors. [Commonwealth v. ]Africa, [569 A.2d 920, 

923 (Pa. 1990)].

Regarding the reason for the delay, the Supreme Court 

explained in Barker:

A deliberate attempt to delay the trial in order to 

hamper the defense should be weighted heavily 

against the government. A more neutral reason[,]

such as negligence or overcrowded courts[,] should 

be weighted less heavily but nevertheless should be 

considered since the ultimate responsibility for such 

circumstances must rest with the government rather 

than with the defendant.

[Barker,] 407 U.S. at 531 (footnote omitted). As discussed in 

the Rule 600 section, supra, the reasons for the delay did not 

warrant a heavy weighting against the Commonwealth.

As to [Appellant’s] assertion of violation of his right to a 

speedy trial, Appellant states in his September 8, 2022, Motion to 

Dismiss that he “filed a motion under [R]ule 600([B]) on 

September 24, 2019, effectively asserting his right to a speedy 

trial to the court.” Motion to Dismiss, p. 10. The court is unable 

to identify such a filing on the docket. Accordingly, there is no 

evidence that Appellant asserted his right until the eve of 

trial, when he filed his Motion to Dismiss. Further, even if 

Appellant had so asserted, in light of the Covid[-19] crisis 

six months later, we would not deem the timing of the 

assertion particularly weighty.

Appellant asserts that he experienced actual prejudice as a 

result of his pre-trial delay in the form of the death of his mother, 

[Ms.] Jackson, “a possible defense witness.” Motion to Dismiss, 

p. 10. Appellant fails to identify when Ms. Jackson passed away, 

or what evidence she could have offered, the lack of which 

constituted the alleged prejudice. Without these two pieces of 

information in the Motion, the court had no basis from which to 

conclude the delay worked prejudice of a constitutional dimension. 

Admittedly, counsel did assert that he had an investigator who 

had interviewed Ms. Jackson, but [counsel] did not make an 

offer of proof as to her testimony or when she had passed 

away either in the written motion or in court. NT 9/16/22, 

7, 83, 85.
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As further ground of prejudice, Appellant asserted his 

inability to obtain service on the social worker and physician who 

examined [A.A.] at CHOP. Neither of these persons are 

mentioned in Appellant’s Motion to Dismiss. Moreover, there 

is no basis for finding prejudice from their absence. The evidence 

was that [A.A.] had no discernable trauma. This was uncontested 

by the Commonwealth. Indeed, the Commonwealth presented 

expert testimony to explain why the absence of trauma did not 

necessarily prove that the alleged acts had not occurred. 

Accordingly, the absence of these witnesses is in no way 

prejudicial, since all they would have done is reiterate that 

which was conceded – that there were no demonstrable 

physical injuries. .... To the extent that the purpose of 

these witnesses was to testify that the sexual assault ...

was vaginal and not anal, the defense elicited evidence ...

indicating a vaginal assault as the basis for the CHOP 

physician’s exam of A.A. .... NT 9/21/22, 84-88, 91.

Although the court’s reason for not entertaining the motion 

to dismiss for lack of a speedy trial on constitutional grounds was 

erroneous, the motion would have been without merit, for the 

reasons stated above.

Id. at 8-10. faced

Upon review, the trial court’s analysis is supported by the record, and 

free of legal error. Although the substantial period of pretrial delay triggered 

further inquiry into the Barker analysis,10 the record supports the trial court’s 

finding that the Commonwealth was not at fault for the delay. See Africa, 

569 A.2d at 923; N.T., 9/16/22, at 28, 31, 60. Further, Appellant did not 

____________________________________________

10 We note the Pennsylvania Supreme Court’s declaration of a general 

statewide judicial emergency on March 16, 2020, evidences the exceptional 

circumstances the Covid-19 pandemic presented to trial courts. 
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exercise his speedy trial rights until the eve of trial, more than 1,700 days 

after the institution of charges. See Martz, 232 A.3d at 812.

Concerning the prejudice prong, in addition to the trial court’s cogent 

analysis, we observe Appellant referred to the deceased Ms. Jackson as a

possible defense witness both in his motion to dismiss and during the Rule 

600 hearing. See Motion to Dismiss, 9/8/22, at 10 (“[Ms.] Jackson, a 

possible defense witness, has passed away.” (emphasis added)); N.T., 

9/16/22, at 6-7 (“[Ms. Jackson], who would have been a witness in this case 

or who may have been a witness in this case, since the outset of this[,] has 

passed away.” (emphasis added)). Accordingly, we agree with the trial court 

that, on balance, the Barker factors do not support dismissal of Appellant’s 

charges. See Commonwealth v. McCord, 644 A.2d 1206, 1212 (Pa. Super. 

1994) (concluding appellant was not entitled relief pursuant to Barker where 

there was 1) a “lack of any evidence that the delay was deliberately caused 

by the Commonwealth,” 2) there was “minimal prejudice to the interests 

protected by the right to a speedy trial,” and 3) appellant did not “timely assert 

his right to a speedy trial.”). 

In his final issue, Appellant argues the trial court deprived him “of his 

right to a fair and impartial jury by refusing to ask prospective jurors on voir 

dire if they believe a child could lie about being sexually abused....” Appellant’s 

Brief at 44. Appellant alleges the trial court’s decision precluded him from 

uncovering whether prospective jurors “could fairly evaluate [A.A.’s] 
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testimony and base their verdict on the evidence, rather than on a 

preconceived, fixed belief that children could not fabricate allegations of 

sexual abuse.” Id. Appellant maintains the proposed voir dire question was 

especially relevant, in that “[t]he Comm[]onwealth’s case hinged on the 

believability of the complainant[,] her prior inconsistent statements, and lack 

of medical corroboration.” Id.

The Sixth and Fourteenth Amendments of the United States Constitution 

guarantee a criminal defendant the right to a fair and impartial jury. See 

Commonwealth v. Davis, 273 A.3d 1228, 1239 (Pa. Super. 2022). “Thus, 

the jury selection process is crucial to the preservation of a criminal 

defendant’s constitutional right to an impartial jury.” Id. (citation omitted). 

Voir dire plays a critical function in assuring the criminal defendant 

that his right to an impartial jury will be honored. Without an 

adequate voir dire, the trial judge’s responsibility to remove 

prospective jurors who will not be able impartially to follow the 

court’s instructions and evaluate the evidence cannot be fulfilled.

While this Court has explained that the scope of voir dire is within 

the sound discretion of the trial court, the United States Supreme 

Court has stated that the exercise of the trial court’s discretion, ... 

[is] subject to the essential demands of fairness.

Id. (quoting Commonwealth v. Le, 208 A.3d 960, 972 (Pa. 2019)); see 

also Commonwealth v. Delmonico, 251 A.3d 829, 839 (Pa. Super. 2021) 

(“[W]e employ a standard of review which affords great deference to the trial 

judge[.]” (citation omitted)).

“Voir dire is not to be utilized as a tool for the attorneys to ascertain the 

effectiveness of potential trial strategies.” Commonwealth v. Manley, 985 
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A.2d 256, 264 (Pa. Super. 2009) (citation omitted). Voir dire is also not “to 

be used to attempt to ascertain a prospective juror’s present impressions or 

attitudes.” Commonwealth v. Ritter, 615 A.2d 442, 447 (Pa. Super. 1992) 

(citation omitted). “Additionally, a court will not be found to abuse its 

discretion during voir dire examination by refusing to permit questions whose 

subject matter falls within the province of the court to address in its 

instructions to the jury.” Commonwealth v. Walker, 305 A.3d 12, 16-17 

(Pa. Super. 2023), appeal granted, 316 A.3d 622 (Pa. 2024). 

Appellant argues that

[w]hen important testimony is anticipated from certain categories 

of witnesses, whose official or semi-official status is such that a 

juror might reasonably be more, or less, inclined to credit their 

testimony, a query as to whether a juror would have such an 

inclination is not only appropriate[,] but should be given if 

requested.

Appellant’s Brief at 48 (citation omitted). 

In response, the Commonwealth argues:

Appellant’s proposed question—whether the jurors would “be 

more likely to believe the testimony of a child who says she was 

sexually assaulted because [they] believe no child would li[]e 

about being a victim of such a crime”—was designed to gauge how 

prospective jurors would respond to [A]ppellant’s trial strategy[,] 

which claimed [A.A.] fabricated the abuse. (N.T.[,] 9/19/2022[,] 

at 10). This is not permitted. See Commonwealth v. Knight, 

241 A.3d 620, 640 (Pa. 2020) (holding that the trial court did not

abuse its discretion in preventing defendant from asking 

prospective jurors a question that would “gauge the efficacy of 

potential” legal strategies).

Commonwealth Brief at 24.
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In support of his argument, Appellant primarily relies on two cases: 

Commonwealth v. Futch, 366 A.2d 246 (Pa. 1976), and Capoferri v. 

Children’s Hosp. of Philadelphia, 893 A.2d 133 (Pa. Super. 2006) (en 

banc).

In Futch, the trial court precluded appellant from asking prospective 

jurors questions concerning the credibility of prison guards and prison 

inmates. See Futch, 366 A.2d at 248. Concluding the trial court erred, the 

Futch Court examined the record and determined that no voir dire questions 

“focuse[d] upon ... the predilection of a prospective juror to credit the 

testimony of a prison guard simply because of the guard’s official status.” Id.

at 250. The Court likewise ruled 

that there is no significant distinction between law enforcement 

officers as court witnesses on the one hand and prison inmates on 

the other. The latter classification arouses feelings that are just 

as capable of interfering with a jury’s capacity to render a fair and 

impartial verdict as does the former.

Id. “Since the voir dire examination included no questions that even arguably 

explored this area of potential bias,” the Court concluded the trial court erred 

by denying appellant’s proposed voir dire questions. Id.

In Capoferri, a medical malpractice action, this Court, en banc, 

considered whether “counsel for both sides should have been permitted to 

question the prospective jurors” concerning their attitudes toward tort reform 

and medical malpractice. Capoferri, 893 A.2d at 142. This Court concluded:

[W]ith the amount of publicity occurring at the time this case was 

ready for trial, the parties should have been allowed to question 
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prospective jurors about their attitudes regarding medical 

malpractice and tort reform in order to determine whether each 

individual juror could serve in a fair and impartial manner. 

Common sense dictates that the type of media coverage that 

accompanied the debate over tort reform created a climate from 

which the average person could conclude that he or she would be 

economically impacted and/or be deprived of accessible health 

care services. Because there was no question that there was 

pervasive media coverage on the issue of medical malpractice 

prior to trial in the instant case, we conclude that counsel for both 

sides should have been permitted to question the prospective 

jurors regarding the subject and attempt to glean whether there 

was any impact on any individual juror's ability to decide the case 

fairly and impartially. 

Id. This Court cautioned, however, that it did “not necessarily endorse th[e] 

questions proffered by [the p]laintiffs.” Id. at 143. Instead, the trial court 

should have “asked the prospective jurors appropriate preliminary questions

... designed to detect, initially, whether any of the prospective jurors had been 

exposed to tort reform and medical negligence propaganda.” Id. (citation 

omitted). As the trial court failed to follow this course, reversal was 

warranted. Id. 

Both cases are readily distinguishable. Futch involved questioning 

prospective jurors concerning bias for or against law enforcement and prison 

inmates, while Appellant’s proposed (argumentative) question sought to 

determine whether a category of victim was capable of lying. Capoferri

involved questioning prospective jurors concerning a social issue garnering 

significant media coverage in advance of trial, and bears little resemblance to 

the instant case.
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In its Rule 1925 opinion, the trial court explained its rationale for 

refusing to ask Appellant’s proposed question:

[T]he [c]ourt conducted individual voir dire of the 

[prospective] jurors, addressing their responses to the juror 

questionnaire and engaging in follow-up questioning. Further, ... 

Appellant sought no follow-up or additional questions as to specific 

jurors in the areas addressed by the rejected questions. Here, 

counsel for Appellant did seek other juror[-]specific follow-up 

questions, which the court asked. N.T., 9/19/22, at 34, 49.

Further, the jury [pool] was twice specifically informed that 

the purpose of the questioning was [] “to try and help determine 

whether you have any preconceptions or biases that might 

interfere with your impartial consideration of the evidence.” Id.

at 18. After being told the nature of the allegation, the 

prospective jurors where then asked:

Is there anything about the nature of these charges 

o[r] these allegations that would prevent anyone here 

from serving as a fair and impartial juror? If so, 

please raise your hand now.

Id. at 20-21. No prospective juror responded.

Trial Court Opinion, 7/6/23, at 11 (citations modified). The trial court further 

asked, during individual voir dire: “Is there anything that may come to mind 

that has not been asked that could interfere with your ability to serve fairly 

and impartially here?” Id. at 12; see also N.T., 9/19/22, passim. Based 

upon these questions, the trial court concluded that it had sufficiently “covered 

all [] areas of potential bias[.]” Id.

Upon review, the trial court’s factual findings are supported by the 

record, and we agree with the legal analyses of the trial court and the 

Commonwealth. The cases relied upon by Appellant are plainly factually 
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distinguishable. Moreover, the trial court asked the prospective jurors 

appropriate preliminary questions designed to expose bias. See Capoferri, 

893 A.2d at 143. Significantly, the trial court advised the prospective jurors

that Appellant faced charges of, inter alia, rape of a child, and inquired 

whether the nature of the charges would prevent anyone from “serving as a 

fair and impartial juror[.]” N.T., 9/19/22, at 20-21. Thirteen jurors responded 

affirmatively, and, following individual questioning, the trial court excused six 

jurors on its own initiative. See id. at 21, 101, 103, 104, 145, 181, 195. 

Further, we find persuasive our unpublished decision in 

Commonwealth v. Smith, 301 A.3d 928 (Pa. Super. 2023) (unpublished 

memorandum), appeal granted, 316 A.2d 620 (Pa. 2024).

11

 In Smith, we 

examined whether the trial court erred in refusing to question prospective 

jurors on the identical question of “whether they believed a child could lie 

about being sexually abused[.]” Id. (unpublished memorandum at 4). 

Rejecting Smith’s claim, we concluded:

The question wholly involved the victims’ credibility, was 

essentially argumentative, and impermissibly sought to gauge 

jurors’ receptiveness to possible defense strategies. Moreover, 

the court’s other questions and statements to potential jurors 

adequately addressed concerns about prospective jurors’ ability to 

be impartial. ... Smith offers no authority mandating that courts 

ask prospective jurors whether they believe a victim of a particular 

category of crime could lie, and we are aware of none. Instead, 

he cites cases upholding challenges to the denial of voir dire

____________________________________________

11 Non-precedential decisions filed after May 1, 2019, may be cited for their 

persuasive value. See Pa.R.A.P. 126(b)(1)-(2).
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questions relating to potentially controversial social issues, such 

as racial and law enforcement prejudice, tort reform, and sexual 

orientation, that could affect jurors’ overall ability to be impartial. 

Accordingly, the court did not abuse its discretion in excluding 

Smith’s question from voir dire.

Id. (unpublished memorandum at 6-7) (citations omitted).

12

 

Appellant advances the same arguments as those offered to this Court 

in Smith, supra. As we agree with the cogent analysis set forth in Smith, 

Appellant’s final issue does not entitle him relief. 

Petition for remand denied. Judgment of sentence affirmed. 

P. J. Lazarus joins the memorandum.

Judge Nichols concurs in the result.

____________________________________________

12 We note that on April 9, 2024, our Supreme Court granted allocatur to 

review, inter alia, the following issue:

In a sex abuse case where the uncorroborated testimony of two 

child complainants was at issue, did the Superior Court err by 

holding [p]etitioner had no right to ask prospective jurors if they 

held a fixed belief that children would not lie about being sexually 

abused, contrary to this Court's decisions holding that an inquiry 

into prospective jurors’ potential bias as to the trustworthiness of 

certain categories of witnesses is necessary on voir dire? 

Commonwealth v. Smith, 316 A.3d 620 (Pa. 2024) (per curiam)

(numbering omitted).
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Date: 9/05/2024