J-S67018-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

JEROME DERRELL CAREY

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:

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1544 EDA 2016

Appeal from the Order April 19, 2016

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006599-2014

BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 11, 2018

The Commonwealth of Pennsylvania appeals from the Order granting 

the Motion to Dismiss criminal charges filed by Jerome Derrell Carey 

(“Carey”), pursuant to Pa.R.Crim.P. 600 (hereinafter “Rule 600 Motion”). 

We affirm.

The trial court set forth the relevant history underlying this appeal as 

follows:

On May 1, 2014, ... Carey[] was arrested and charged with 

Possession with the Intent to Deliver, Criminal Conspiracy, 

Possession of Firearm Prohibited, Intent to Possess Controlled 

Substance by Person Not Regulated[,] Use/Possession of Drug 

Paraphernalia, and Possession of an Instrument of a Crime. It is 

alleged that a confidential informant made multiple purchases of 

crack cocaine from [Carey,] at or near 1745 North 26th Street 

and 2522 West Montgomery Avenue[,] on or about April 30, 

2014. [Carey] was then arrested inside 2522 West Montgomery 

Avenue, which is a rooming house.

The original preliminary hearing was scheduled for May 20, 

2014. The preliminary hearing was rescheduled for June 5, 

2014[,] where multiple charges were held for court. The Pre-
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Trial Conference was scheduled for July 17, 2014[,] and a 

Scheduling Conference was scheduled for August 5, 2014. The 

case was listed for Pretrial Motions on September 23, 2014.

Counsel for [Carey] timely filed an Omnibus Pre[t]rial Motion on 

August [14,] 2014. A jury trial was [scheduled] for February 17, 

2015[, by the Honorable Giovanni Campbell (“Judge Campbell”) 

on September 23, 2014]. A motions date of January 13, 2015 

was also scheduled.[1]

On February 17, 2015, the matter was listed for trial 

before the Honorable Roxanne E. Covington [(“Judge 

Covington”)]. [However, trial did not commence on February 

17, 2015. Rather, t]he Commonwealth passed the outstanding 

discovery[, a seizure analysis,] at the bar of the court.[2] The

trial was continued[3]to June 10, 2015[,] but the [c]ourt was on 

trial in another matter. Similarly, the [c]ourt was on trial for yet 

another matter at the next listing, [October] 14, 2015. The 

matter was continued to February 10, 2016. On December 4, 

2015, [Carey filed the Rule 600] Motion .... At the February 10, 

2016 trial date, the Commonwealth again passed necessary 

discovery at the bar of the court. Motions were continued to 

April 19, 2016[,] at which time the [trial court conducted a 

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1 The trial court’s docket entry for January 13, 2015, states, in relevant part, 

as follows: “Order Granting Motion for Continuance ... Commonwealth 

request – Commonwealth not ready for motions hearing (outstanding 

discovery) ....”

2 The entry on the trial court’s docket for February 17, 2015, states that the 

case was “[l]isted for jury trial. Seizure analysis passed today. Discovery is 

complete. Bring down the defendant. NCD: 6/10/2015 room 908.” Further, 

though it is undisputed that the seizure analysis was given to the defense on 

February 17, 2015, the record does not reveal when it was passed “at the 

bar of the court” that day. See Brief for the Commonwealth at 6 (stating 

that “[a]t the Rule 600 hearing, all agreed that the outstanding discovery, 

the seizure analysis, was passed to the defense in court on February 17, 

2015.”); see also id. (asserting that the Commonwealth had passed the 

seizure analysis only five days after it had first become available).

3 The docket entry for February 17, 2015 additionally states that the trial 

court entered an “Order Granting Motion for Continuance” that day. 

However, the docket does not identify the moving party.
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hearing on the] Rule 600 [M]otion [(hereinafter the “Rule 600 

hearing”).]

Trial Court Opinion, 2/10/17, at 1-2 (footnotes added). 

At the close of the Rule 600 hearing, the trial court entered an Order 

granting the Rule 600 Motion and dismissing all charges against Carey. Two 

days later, the Commonwealth filed a Motion for Reconsideration. Therein, it 

asserted that the trial court had erred in stating at the Rule 600 hearing 

that, concerning February 17, 2015 (a Tuesday), i.e., the originallyscheduled jury trial date, “we don’t have jury trials on Tuesday.” N.T., 

4/19/16, at 26 (hereinafter referred to as the “Tuesday trial comment”). 

The Commonwealth attached to the Motion for Reconsideration court records

proving that the trial court was, in fact, presiding over a trial in a separate 

criminal case on February 17, 2015. By an Order entered on May 25, 2016, 

the trial court denied the Motion for Reconsideration without a hearing. The 

Commonwealth then filed a timely Notice of Appeal, followed by a Pa.R.A.P. 

1925(b) Concise Statement of errors complained of on appeal.4

The Commonwealth now presents the following issue for our review:

Whether the lower court erred in discharging [Carey] under 

Pa.R.Crim.P. 600 by attributing to the Commonwealth a 

continuance on February 17, 2015, where the resulting 113 days 

of delay were not caused by the Commonwealth; the judge was 

conducting a jury trial in another case (Commonwealth v. Kasim

Harrington, CP-51-CR-0014644-2013) that made it impossible 

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4 The trial court did not order the filing of a Rule 1925(b) concise statement.
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for trial in this case to commence on that date[;] and Rule 600 

was not violated[?]

Brief for the Commonwealth at 3.5

Our standard and scope of review concerning challenges to a ruling on 

a Rule 600 motion is as follows:

We review a trial court’s [grant or] denial of a Rule 600 motion

for an abuse of discretion. 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[,] discretion is abused. Our scope of review is

limited to the record evidence from the speedy trial hearing and

the findings of the lower court, reviewed in the light most

favorable to the prevailing party.

Rule 600 establishes a careful matrix protecting a defendant’s

rights to be free from prolonged pretrial incarceration and to a

speedy trial, while maintaining the Commonwealth’s ability to

seek confinement of dangerous individuals and those posing a

risk of flight, and to bring its cases in an orderly fashion. []

Commonwealth v. Burno, 154 A.3d 764, 793 (Pa. 2017) (some citations, 

quotation marks and ellipses omitted).

Additionally, when considering the trial court’s ruling, this 

Court is not permitted to ignore the dual purpose behind Rule 

600. Rule 600 serves two equally important functions: (1) the 

protection of the accused’s speedy trial rights, and (2) the 

protection of society. In determining whether an accused’s right 

to a speedy trial has been violated, consideration must be given 

to society’s right to effective prosecution of criminal cases, both 

to restrain those guilty of crime and to deter those 

contemplating it. However, the administrative mandate of Rule 

600 was not designed to insulate the criminally accused from 

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5 We note that Carey did not file an appellate brief.
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good faith prosecution delayed through no fault of the 

Commonwealth.

Commonwealth v. Horne, 89 A.3d 277, 283 (Pa. Super. 2014) (brackets

omitted).

Rule 600, as amended July 1, 2013, provides, in relevant part, that

“[t]rial in a court case in which a written complaint is filed against the 

defendant shall commence within 365 days from the date on which the 

complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). The Rule further provides 

that for purposes of computing when trial must commence, “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 .... Any 

other periods of delay shall be excluded from the computation.” 

Pa.R.Crim.P. 600(C)(1); see also Commonwealth v. Roles, 116 A.3d 122, 

125 (Pa. Super. 2015) (stating that “[t]he Commonwealth has the burden of 

establishing by a preponderance of the evidence that it exercised due 

diligence throughout the prosecution.”). However, “periods of judicial delay 

are excludible from calculations under the [R]ule ....” Commonwealth v.

Mills, 162 A.3d 323, 325 (Pa. 2017). Failure to meet the Rule’s prompt-trial 

requirement constitutes grounds for dismissal of the charges with 

prejudice. Pa.R.Crim.P. 600(D)(1). 

The Commonwealth argues that the trial court improperly dismissed 

the charges against Carey under Rule 600, where the court erroneously 

counted against the Commonwealth delay that was actually attributable to 
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the court. See Brief for the Commonwealth at 10-19. Specifically, the 

Commonwealth asserts as follows:

The [trial] court attributed a 113-day delay[, i.e., from February 

17, 2015, to June 10, 2015,] to the Commonwealth because [the 

court] believed it could not have been on trial [on] February 17, 

2015.[6] However, the [trial] court was on trial [in a different 

criminal case] on that date, and the docket clearly set February 

17, 2015 as a trial date for the instant matter. Therefore, the 

continuance [entered on] February 17, 2015 was not caused by 

the Commonwealth and was erroneously included in the 

computation of the run date.

Id. at 10 (footnote added);

7 see also id. at 5 (stating that “[w]hat 

happened on [February 17, 2015] is the sole issue on appeal.”). The 

Commonwealth asserts that “[p]roperly excluding the 113-day delay from 

February 17[, 2015] would result in there having been only 336 includable 

days at the next trial date of June 29, 2016, and thereby enough time to try 

[Carey] under Rule 600.” Id. at 8. According to the Commonwealth, on 

February 17, 2015, 

[it] was prepared to go to trial, but a continuance was caused by 

the trial court being in the middle of trial in another case. A 

continuance due to the trial court being on trial is excluded from

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6 The Commonwealth refers to the Tuesday trial comment made at the Rule 

600 hearing. See Brief for the Commonwealth at 7.

7 The Commonwealth additionally points out that the trial court’s docket 

entry for February 17, 2015 does not reflect which party requested the 

continuance, in violation of Pa.R.Crim.P. 600(C)(3)(a)(ii) (providing that 

“when a judge ... grants or denies a continuance[,]” the judge “shall record 

the identity of the party requesting the continuance and the reasons for 

granting or denying the continuance.”). See Brief for the Commonwealth at 

12. 
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the computation of the run period. Pa.R.Crim.P. 600(C)(1).

Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006) 

(holding that delay caused by the trial “court ... presiding over 

another criminal case” so it “could not begin Appellant’s trial on 

that date” is excusable[)]; Commonwealth v. Brown, 875 

A.2d 1128, 1138 ([Pa. Super.] 2005) (where “the trial court had 

yet another trial in progress, and rescheduled Appellee’s trial” it 

was a circumstance over which “the Commonwealth had no 

control” and so the delay “is excusable”).

Brief for the Commonwealth at 15. Finally, the Commonwealth asserts that 

“[e]ven if the Commonwealth had requested the February 17 continuance -

it did not - the delay still should be excluded. ‘Joint’ continuances result in 

excludable time. Commonwealth v. Stilley, 689 A.2d 242, 249-250 (Pa. 

Super. 1997).” Brief for the Commonwealth at 17. 

Here, the trial court discussed the timeline of events for Rule 600 

purposes as follows:

[O]n May 2, 2014, the Commonwealth filed a [C]omplaint 

against [Carey;] thus the natural run date was May 2, 2015. 

The mechanical run date[,] which includes excludable 

Commonwealth time[,] was January 21, 2016. The original 

preliminary hearing was scheduled for May 20, 2014. The 

Commonwealth [was] ready in the room but refused to sever 

[Carey’s] and other codefendants’ cases. The [trial c]ourt 

determined that the nineteen (19) days between the [C]omplaint 

and preliminary hearing were excusable.[8] The preliminary 

hearing was rescheduled for June 5, 2014[,] where multiple 

charges against [Carey] were held for court. This period of 

sixteen (16) days was ruled excusable due to a defense 

conflict[,] despite the Commonwealth also needing additional 

time. The next listing, a Pre-Trial Conference, was scheduled for 

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8 The new Rule 600 consolidates the distinction under former Rule 600 

between excludable and excusable time in the calculation of an adjusted run 

date. See Pa.R.Crim.P. 600(C)(1).
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July 17, 2014. The matter was scheduled for a Scheduling 

Conference on August 5, 2014. The sixty one (61) days were 

ruled excusable due to the [trial c]ourt’s schedule. On August 5, 

2014, ... [Judge] Campbell ordered a Hall Discovery Motion to be 

filed regarding the outstanding discovery. Discovery determined 

to be outstanding included the Ballistician report, Gun Trace, FBI 

extracts for witnesses, 7548, arrest memo, 75-895, Buy Money 

and DC reports with Confidential Informants’ information. The 

case was listed for Pretrial Motions on September 23, 2014. 

Counsel for [Carey] timely filed an Omnibus Pre-Trial Motion on 

August 14, 2014. Judge Campbell held the September 23, 2014 

Pre-Trial Conference as scheduled. The Commonwealth was 

ordered to pass FBI extracts for persons named on discovery 

documents but all other discovery was marked as complete and 

the Hall Discovery Motion was withdrawn. A jury trial date of 

February 17, 2015[,] was scheduled[,] well before the 

mechanical run date expired. A motions date of January 13, 

2015[,] was also scheduled. At the January 13, 2015 listing, the

Commonwealth disclosed [that it was] not ready for motions due 

to outstanding discovery. Judge Campbell ordered motions and 

trial to occur at the original trial date of February 17, 2015. The

Commonwealth concedes that the time from August 5, 2014[,]

through February 17, 2015[,] (196 days) is ruled excludable. 

On February 17, 2015, the matter was listed for trial 

before ... [Judge] Covington. The Commonwealth passed the 

outstanding discovery from January 13, 2015[,] at the bar of the 

court. Judge Covington determined that trial could not occur 

as Defense Counsel had no time to review the newly 

obtained discovery. [On February 17, 2015, t]he trial was 

continued to June 10, 2015[,] and the time was attributed to the 

Commonwealth for lack of due diligence. The [trial c]ourt was 

unable to hear this matter on June 10, 2015[,] as it was on trial 

in another case. Both parties were ready[,] so this delay was 

attributed to the [c]ourt. Similarly, the [c]ourt was on trial for 

another matter at the next scheduled listing, October 14, 2015.

The case was continued to February 10, 2016, beyond the 

mechanical run date of January 21, 2016[,] and the time was 

attributed to the [c]ourt.

On December 4, 2015, a [Rule 600] Motion ... was filed by 

[Carey] .... At the February 10, 2016 trial date, the 

Commonwealth again passed mandatory discovery[, certain 

prison recordings and a witness police statement,] at the bar of 
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the court. Judge Covington once more determined that trial 

could not occur[,] as Defense Counsel had no time to review the 

newly obtained discovery. Motions were set for March 14, 2016. 

On March 14, 2016, the Commonwealth requested a 

continuance[,] as [the] Commonwealth attorney was not 

available. Motions were postponed to April 19, 2016[,] at which 

time the Rule 600 [M]otion was heard by [the trial c]ourt [at the 

Rule 600 hearing]. ... For the reasons detailed above, [the trial 

c]ourt entered an [O]rder granting [the Rule 600] [M]otion.

Trial Court Opinion, 2/10/17, at 5-7 (some emphasis and footnote added; 

other emphasis in original; citations and paragraph break omitted).9

Initially, we cannot agree with the Commonwealth that the trial court’s

Tuesday trial comment, made at the Rule 600 hearing, evidences reversible 

error on behalf of the trial court. Despite the trial court’s passing comment,

the salient facts are the court’s findings that (1) at some unidentified time 

on February 17, 2015, the Commonwealth passed outstanding necessary 

discovery in court, which the defense fairly needed time to review; and (2) 

due to the Commonwealth’s lack of due diligence in this regard, the trial 

continuance that the court entered that day would be counted against the 

Commonwealth. See id. at 6; N.T., 4/19/16, at 50-51 (wherein the trial 

court stated that “discovery was not passed or complete until the day of 

trial[, i.e., February 17, 2015]. This [c]ourt finds that time to reflect a lack 

of diligence on the part of the Commonwealth, and that time is charged to 

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9 We note that the only substantive rationale that the trial court advances in 

support of its ruling is the following sentence: “This court exercised sound 

discretion, in view of all procedural facts and circumstances of the case, by 

granting the [Rule] 600[] [M]otion.” Trial Court Opinion, 2/10/17, at 7.
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the Commonwealth.”); see also Commonwealth v. Taylor, 598 A.2d

1000, 1002-03 (Pa. Super. 1991) (holding that that the Commonwealth’s 

failure to provide mandatory discovery, when the Commonwealth does not 

contest the request, does not toll the speedy trial clock). We may not 

disturb the trial court’s factual findings in this regard. Nor can we assume, 

as the Commonwealth urges, that the sole reason that the trial had to be 

continued on February 17, 2015, was because the trial court was presiding 

over a separate trial that day. The Commonwealth is correct that an 

administrative error or a scheduling conflict attributable to the trial court

would not be counted against the Commonwealth for the purposes of a due 

diligence analysis. However, the trial court expressly found that trial was 

unable to proceed on February 17, 2015, due to the Commonwealth’s lastminute provision of necessary discovery to the defense.

10 See Trial Court 

Opinion, 2/10/17, at 6; N.T., 4/19/16, at 50-51; see also Mills, 162 A.3d at 

325 (Wecht, J. concurring) (stating that “‘[j]udicial delay’ is not a 

mechanism or totem that exempts the Commonwealth from its obligations 

under [] Rule [600]. It may be invoked only after the Commonwealth has 

demonstrated that it is ready, able, and willing to proceed with the case 

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10 Moreover, the cases that the Commonwealth relies upon, see Frye and 

Brown, supra, are unavailing and distinguishable as, in those cases, the 

sole reason that trial could not commence on a certain scheduled trial date 

was due to the trial court presiding over trial in another matter. Here, the 

Commonwealth turned over last-minute discovery in court on the same day 

of the scheduled trial. 
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against the defendant. Otherwise, the due diligence component of Rule 600

would have little, if any, meaningful import.” (emphasis added)). 

Accordingly, based on the record before us, we discern no abuse of the

trial court’s discretion in ruling that the Commonwealth failed to meet its

burden that it had exercised due diligence in bringing Carey to trial within

the time requirement of Rule 600. See Burno, supra; see also

Commonwealth v. Browne, 584 A.2d 902, 905 (Pa. 1990) (stating that 

“prosecutors must do everything reasonable within their power to see that 

the case is tried on time.”); Commonwealth v. Johnson, 852 A.2d 315, 

318 (Pa. Super. 2004) (vacating judgment of sentence and discharging 

Johnson because “there was a dearth of evidence to support the 

Commonwealth’s arguments, and it therefore did not carry its burden to 

establish due diligence in bringing Johnson to trial within the required 

time.”). Accordingly, we affirm the trial court’s Order granting the Rule 600

Motion and dismissing the charges against Carey.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/18