J-S26043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NADIM ZUHAIR JAOUNI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1361 MDA 2016

Appeal from the Judgment of Sentence July 20, 2016

In the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0006709-2013

BEFORE: BOWES, DUBOW, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 20, 2017

Appellant, Nadim Zuhair Jaouni, appeals from the judgment of 

sentence entered in the York County Court of Common Pleas following his 

bench trial and conviction for driving under the influence (“DUI”)1 and 

exceeding the speed limit.2 He argues the Commonwealth did not exercise 

due diligence and therefore the trial court erred in denying his motion to 

dismiss pursuant to Pa.R.Crim.P. 600. We agree and are constrained to 

reverse and vacate Appellant’s judgment of sentence.

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* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. § 3802(a)(1).

2 75 Pa.C.S. § 3362.
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Appellant was initially charged with the aforementioned offenses by 

criminal complaint on June 10, 2013. Due to continuances requested by 

Appellant, his preliminary hearing was held on September 18, 2013. On 

September 30, 2013, Appellant applied for the Accelerated Rehabilitative 

Disposition Program (“ARD”), but was rejected on November 13, 2013. A 

pretrial conference was scheduled for January 9, 2014, after which the case 

was continued several times, until June 17, 2015, at the behest of Appellant. 

A pre-trial conference was finally held on June 17, 2015, at which 

Appellant requested that the assigned judge recuse herself. The assigned 

judge did so the next day and Appellant’s case was reassigned to Judge 

Kelley. However, Judge Kelley resigned from the bench and the case was 

reassigned, on August 7, 2015, to Judge Trebilcock. After Judge Trebilcock 

was called into active military duty, the case was reassigned to Judge Ness 

on October 28, 2015.

On July 12, 2016, Appellant filed a motion for dismissal pursuant to 

Pa.R.Crim.P. 600. On that same day, Judge Ness conducted a hearing 

regarding the motion. Rule 600 required Appellant to be tried within one 

year of the date of the complaint, absent any time not attributable to the 

Commonwealth.3 Pa.R.Crim.P. 600(A), (C). At the Rule 600 hearing, the 

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3 The Rule 600 mechanical run date is 365 days from the date a criminal 

complaint is filed. See Commonwealth v. Murray, 879 A.2d 309, 314 (Pa. 

Super. 2005).
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Commonwealth asserted that the case could not be tried between midJanuary 2016 through late May 2016 because the toxicologist who analyzed 

Appellant’s blood alcohol content was on maternity leave. Judge Ness also 

explained that he had tried cases every day during the 2016 January, March, 

and May terms. Judge Ness specifically concluded that 68 days remained 

within Rule 600 to try the case. Therefore, Judge Ness denied Appellant’s 

motion to dismiss the case pursuant to Rule 600. In so doing, the judge 

specifically stated that his decision was based upon “the unavailability of the 

toxicologist as well as the continuous reassignment by Court Administration, 

who is not the DA to various judges.” N.T. Rule 600 Hr’g, 7/12/16, at 8.

Ultimately, Appellant’s case was tried before Judge Christy H. Fawcett 

on July 20, 2016. After the bench trial, Appellant was convicted and 

sentenced to six months’ probation and a three hundred dollar fine. 

Appellant filed the instant timely appeal and a timely court ordered Pa.R.A.P. 

1925(b) statement. The trial court filed a responsive opinion. 

Appellant raises the following issue for review:

The trial court erred when it denied Appellant’s Rule 600 

motion when the Commonwealth failed to exercise due 

diligence in bring Appellant’s case to trial?

Appellant’s Brief at 4. 

Appellant argues that the trial court erred by denying his Rule 600 

motion because he was tried well after his Rule 600 run date and the 

Commonwealth failed to prove that such delay could not have been 
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prevented through the exercise of the Commonwealth’s due diligence. To 

this end, Appellant specifically asserts:

At the Rule 600 hearing, the Commonwealth put on no 

evidence to establish any of its assertions, but instead the 

prosecutor made unsworn assertions as fact. Thus, there 

is no evidence of record to support the Commonwealth’s 

claims that it exercised due diligence and the delays were 

excusable. 

Even if there was competent evidence on which this 

Court could rely, [Appellant’s] case was listed as a bench 

trial by at least as early as June 17, 2015. The 

Commonwealth was not limited to trying this case during 

the “every other month” jury trial terms in York County. 

As noted by counsel during the Rule 600 hearing, the case 

had been listed for 391 days. More importantly, the 

Commonwealth controls when cases are brought to trial in 

York County, not the trial courts and not defendants. Any 

one of at least four criminal court judges could have tried 

this case at any point between June 17, 2015 and July 20 

2016 had the Commonwealth been adequately keeping 

track of Rule 600 time. The Commonwealth presented no 

evidence that any of the judges had a full docket, that it 

checked with any of these judges in order to list a bench 

trial, or that it was even aware that a case filed in 2013 

may just possibly have Rule 600 issues in 2016. 

Appellant’s Brief at 14-15 (citation and footnote omitted).

Appellant also contends that the trial court erred by finding that the 

time the Commonwealth’s toxicologist was unavailable on maternity leave 

from January 2016 until May 2016 was excusable for purposes of Rule 600. 

Appellant emphasizes that the Commonwealth admitted at the Rule 600 

hearing that a different toxicologist could have testified if given the 

opportunity to re-review the results in anticipation of a firm trial date. N.T. 

at 7-8. However, Appellant points out, the Commonwealth both failed to 
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request a firm trial date and failed to procure a re-review of the toxicology 

results in light of the upcoming, foreseeable maternity leave and time 

concerns presented by Rule 600. We agree and are constrained to vacate 

Appellant’s judgment of sentence.

Our standard and scope of review in analyzing a Rule 600 issue are 

both well-settled:

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

trial court’s decision is 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. Peterson, 19 A.3d 1131, 1134-35 (Pa. Super. 2011) 

(citations omitted) (en banc).

Regarding Rule 600 this Court has held:

Pennsylvania Rule of Criminal Procedure 600 was designed 

“to protect a defendant’s speedy trial rights, as well as 

society’s right to effective prosecution of criminal cases.” 

The Rule mandates, inter alia, that a defendant must be 

tried on criminal charges no later than 365 days after the 

criminal complaint is filed. Pa.R.Crim.P. 600(A)(1, 3).

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7 We note that a new Rule 600 was adopted, effective July

1, 2013, “to reorganize and clarify the provisions of the

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

the rule.” Pa.R.Crim.P. 600, Comment. However, because

the criminal complaint in this case was filed prior to the

new rule, we will apply the former version of Rule 600.[4] 

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This straightforward calculation is known as the 

mechanical run date. However, those periods of delay 

caused by a defendant are excluded from the computation 

of the length of time of any pretrial incarceration. 

Pa.R.Crim.P. 600(C). Following these exclusions, if any, we 

arrive at an adjusted run date by extending the mechanical 

run date to account for these exclusions. Any other delay 

that occurs, despite the Commonwealth’s due diligence, is 

deemed excusable and results in further adjustments to 

the effective run date. Pa.R.Crim.P. 600(G) 

After the expiration of the 365–day period, but before trial, 

a defendant may move for dismissal of the charges with 

prejudice. See Pa.R.Crim.P. 600(G). Thereafter, the trial 

court is required to hold a hearing to determine whether 

the Commonwealth “exercised due diligence and [whether] 

the circumstances occasioning the postponement were 

beyond the control of the Commonwealth,” in which case, 

the motion should be denied. Id. When considering 

whether the Commonwealth acted with due diligence, we 

note: 

“[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 and punctilious care, but merely a 

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4

In the instant case, the criminal complaint was filed on June 10, 2013, 

therefore we also apply the former version of Rule 600. Further, the 

amendments to Rule 600 do not affect the result in this case.
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showing the Commonwealth has put forth a reasonable 

effort.” 

Commonwealth v. Dixon, 140 A.3d 718, 722–723 (Pa. Super. 2016) 

(internal case citations omitted), appeal denied, 159 A.3d 938 (Pa. 2016). 

When calculating time in regards to a Rule 600 analysis, this Court has 

drawn a distinction between “excludable time” and “excusable delay.” 

Commonwealth v. Goldman, 70 A.3d 874, 879-80 (Pa. Super. 2013). 

“Excludable time is delay that is attributable to the defendant or his 

counsel.” Id. at 879. “Excusable delay is delay that occurs as a result of 

circumstances beyond the Commonwealth’s control and despite its due 

diligence.” Id. 

The Commonwealth can demonstrate due diligence, in regards to Rule 

600, by, inter alia, listing a case for trial prior to the run date and by keeping 

adequate records to ensure compliance with Rule 600. See 

Commonwealth v. Hill, 736 A.2d 578 (Pa. 1999). However, this Court has 

held that unsworn assertions by the district attorney alone are insufficient 

evidence of the Commonwealth’s due diligence. Commonwealth v. 

Johnson, 852 A.2d 315, 318 (Pa. Super. 2004) (Commonwealth could not 

establish due diligence, for purposes of a Rule 600 motion, by relying solely 

upon unsworn representations of an assistant district attorney). 

In addition, we note that judicial delay can be the basis for the 

extension of a Rule 600 run date if the trial court “has devoted a reasonable 

amount of its resources to the criminal docket and that it scheduled the 
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criminal trial at the earliest possible date consistent with the court’s 

business.” Commonwealth v. Williams, 726 A.2d 389, 392 (Pa. Super. 

1999). Moreover, this Court has held that, when calculating time for 

purposes of Rule 600, a trial court can excuse time attributable to the 

unavailability of a key witness. See Commonwealth v. Hunt, 858 A.2d 

1234, 1243 (Pa. Super. 2004) (en banc). However, once a case is in danger 

of running afoul of Rule 600, the Commonwealth must take all reasonable 

steps to try the case in time. See Commonwealth v. Lewis, 804 A.2d 

671, 674 (Pa. Super. 2002) (Commonwealth did not exhibit sufficient due 

diligence by failing to notify the trial court of potential problems regarding 

procuring a witness and by postponing the trial of a case, with no regard for 

a likely arising Rule 600 violation). Ultimately, the burden of ensuring that a 

trial commences before a Rule 600 violation has occurred rests with the 

Commonwealth. Commonwealth v. Lynn, 815 A.2d 1053, 1059 (Pa. 

Super. 2003).

In the case sub judice, the complaint was filed on June 10, 2013, 

making the mechanical run date June 10, 2014. The trial court found, and 

Appellant concedes, that delays attributable to Appellant during the period 

from June 10, 2013 through June 17, 2015 (“initial period”), equaled at least 

624 days. Trial Ct. Op. at 5; Appellant’s Brief at 13. As noted by the 

Appellant, the total number of days between June 10, 2013 and June 17, 

2015, equals 737 days. Appellant’s Brief at 13. However, 113 days during 
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the initial period were not attributable to Appellant, based on the following 

calculations:

 Complaint filed June 10, 2013-Appellant continuance 

request July 24, 2013-44 days not attributable to 

Appellant. 

 Appellant continuance request July 24, 2013-

Preliminary hearing September 18, 2013—56 days 

attributable to continuances by Appellant.

 September 18, 2013 to September 30, 2013—12 days 

not attributable to Appellant.

 Appellant applied for Accelerated Rehabilitative 

Disposition September 30, 2013 to Appellant rejected 

from ARD program November 13, 2013—44 days 

attributable to Appellant.

 November 13, 2013 to Pre-trial conference January 9, 

2014—57 days not attributable to Appellant.

 January 9, 2014 to June 17, 2015—524 days 

attributable to Appellant’s continuance requests. 

Thus, after accounting for the 624 days attributable to Appellant, the 

adjusted Rule 600 run date would be February 24, 2016. Appellant was not 

tried until July 20, 2016, well after the adjusted run date. The trial court 

found that the time between mid-January 2016 until late May 2016 was 

excusable for purposes of Rule 600 because the toxicologist responsible for 

reviewing Appellant’s toxicology results was unavailable to testify due to 

maternity leave. We disagree.

In Hunt, this Court held that the time in which the Commonwealth 

was unable to locate the victim in that case, an integral witness, was 
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excludable for purposes of Rule 600. See Hunt, 858 A.2d at 1243. 

However, in the instant case, the Commonwealth acknowledged that in the 

unusual circumstances of a maternity leave, another pathologist could have 

been employed to re-review and testify regarding Appellant’s toxicology 

results had a firm trial date been set. N.T. at 7-9. The Commonwealth 

failed to make any efforts to procure the testimony of another toxicologist, 

even though the case was in imminent danger of violating Rule 600. It is 

the Commonwealth’s duty to make such reasonable efforts in order to 

comply with Rule 600. Lewis, 804 A.2d at 674.

Further, the trial court also found the time period between June 18, 

2015 and October 28, 2015 to constitute excusable time due to the judicial 

transfers the case endured. See Williams, 726 A.2d at 392. However, it 

was incumbent on the Commonwealth to ensure that a trial would 

commence within the Rule 600 run date. See Lynn, 815 A.2d at 1059. At 

the Rule 600 hearing, the Commonwealth failed to produce any evidence, 

absent the unsworn assertions of the prosecutor, that the Commonwealth 

made any concrete efforts to notify the trial court of any impending Rule 600 

problem necessitating the expeditious scheduling of this case for trial. 

Therefore, the Commonwealth failed to establish that it exercised the due 

diligence necessary to excuse the time period between June 18, 2015 and 

October 28, 2015 for purposes of Rule 600. See Johnson, 852 A.2d at 

316-17; Lewis, 804 A.2d at 674. 
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While the Commonwealth is not required to operate with perfect 

vigilance and punctilious care in regards to Rule 600, a reasonable effort 

toward compliance is integral to the judicial process and the defendant’s 

right to a speedy trial. See Dixon, 140 A.3d at 722–723. In this case, the 

Commonwealth failed to present a scintilla of evidence that it put forth any 

effort to comply with Rule 600 or exhibited any sense of urgency to try this 

case until Appellant filed his Rule 600 motion, over three years after the 

criminal complaint was filed. While we acknowledge the York County trial 

court’s busy judicial calendar for the period between October 2015 and July 

2016, as noted by Judge Ness during the Rule 600 hearing, an active docket 

does not excuse the Commonwealth from the duty to make reasonable 

efforts to ensure compliance with Rule 600. See Lynn, 815 A.2d at 1059. 

Accordingly, we are constrained to reverse the trial court and vacate 

Appellant’s judgment of sentence.

 Judgment of sentence vacated. Appellant discharged. Jurisdiction 

relinquished. 

Judge Dubow joins the Memorandum. 
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Judge Bowes files a Concurring Memorandum in which Judge Dubow joins.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/20/2017