J-A03026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

HEATHER J. LIPPINCOTT

Appellant No. 709 MDA 2019

Appeal from the Judgment of Sentence April 11, 2019

In the Court of Common Pleas of Lancaster County

Criminal Division at No: CP-36-CR-0004148-2017

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY STABILE, J. FILED: APRIL 13 ,2020

Appellant, Heather J. Lippincott, appeals from her judgment of sentence 

of ninety days to five years’ imprisonment for driving under the influence 

(“DUI”)—highest rate of alcohol (second offense).1 Appellant argues that the 

trial court erred by (1) denying her motion to dismiss under Pa.R.Crim.P. 600 

and constitutional speedy trial principles, and (2) grading her DUI violation as 

a second offense for sentencing purposes. We affirm.

At 2:00 a.m. on May 20, 2017, an Ephrata Township police officer 

stopped Appellant’s vehicle because it had rear end damage and appeared to 

have been involved in an accident. The officer observed that Appellant, the 

____________________________________________

1 See 75 Pa.C.S.A. § 3802(c) (defining DUI—highest rate of alcohol as, inter 

alia, driving vehicle after imbibing a sufficient amount of alcohol such that the 

alcohol concentration in an individual’s blood or breath is 0.16% or higher 

within two hours after she has driven); 75 Pa.C.S.A. § 3804(c)(2) (mandatory 

ninety day minimum sentence for individuals convicted of DUI—highest rate 

of alcohol (second offense)).
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driver of the vehicle, had watery eyes, slurred her speech, and smelled of 

alcohol. Appellant admitted that she had been drinking earlier in the evening. 

The officer placed Appellant under arrest, and a blood test taken less than two 

hours later indicated that her blood alcohol content was .20%. 

Appellant had a previous DUI offense on February 24, 2007 for which 

she was accepted into the Accelerated Rehabilitative Disposition (“ARD”) 

program on August 6, 2007. 

On June 19, 2017, Appellant was charged with DUI—Highest Rate of 

Alcohol (BAC over 16%) (second offense), and DUI—General 

Impairment/Incapable of Driving Safely (second offense).2 Her preliminary 

hearing took place on August 17, 2017, and she was held for court on all 

charges. 

On December 20, 2017, Appellant filed a Motion To Determine Number 

Of Prior Offenses, asserting that because she committed her first DUI offense 

in February 2007, more than ten years before her present DUI offense, her 

first offense was not a prior offense for sentencing purposes under 

75 Pa.C.S.A. § 3806(b). On February 13, 2018, the trial court ordered that 

Appellant’s 2007 offense fell within Section 3806’s ten-year lookback period, 

making it proper to charge her as a second-time offender. 

Following this order, the case did not return to a trial list or status 

conference list until the fall of 2018. On July 11, 2018, the District Attorney’s

____________________________________________

2 75 Pa.C.S.A. § 3802(a)(1).
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Office Manager, Patti Urey, sent Jennifer Mulroney, an employee in Lancaster 

County Court Administration, an e-mail indicating that Appellant’s case 

(among other cases) had not been rescheduled. Urey asked Mulroney to add 

Appellant’s case to the August status conference list. Mulroney did not take 

any action. 

On September 21, 2018, Urey followed up with another email to 

Mulroney asking for a status conference on Appellant’s case. Urey also sent 

an e-mail to Laura Antonucci, the secretary of the judge assigned to the case,

requesting addition of Appellant’s case to the November status conference list. 

The case was then re-assigned to another judge. On October 18, 2018, the

court scheduled a status conference for November 1, 2018. 

On November 1, 2018, the court placed Appellant’s case on the call of 

the list for January 11, 2019. On January 4, 2019, Appellant filed a motion to 

dismiss for an alleged violation of Appellant’s speedy trial rights. On January 

22, 2019, the court denied the Rule 600 motion.

On January 28, 2019, Appellant proceeded to trial without a jury, and 

the court found her guilty on all counts. On April 11, 2019, the court imposed 

the mandatory minimum sentence of ninety days to five years’ imprisonment 

on the charge of DUI—highest rate of alcohol (second offense). The other DUI 

charge merged for purposes of sentencing. Appellant timely appealed to this 

Court, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises two issues in this appeal:
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1. [Appellant]’s Right to Speedy Trial under Pa.R.Crim.P. 600 and 

her Federal Speedy Trial Rights were violated when the 

Commonwealth failed to bring her to trial [within] 365 [days]. The 

Commonwealth did not exercise due diligence in rescheduling the 

matter. Should the charges filed against her be dismissed with 

prejudice? 

2. [Appellant]’s first DUI occurred on February 24, 2007. It was 

resolved on August 6, 2007. [Appellant]’s current case occurred 

on May 20, 2017. The plain language of 75 Pa.C.S.A. §3806(b) 

(1)(i) states that the prior offense must have occurred within ten 

years prior to the date of the offense for which [Appellant] is being 

sentenced. As the particular provisions control over the general 

provisions, did the trial court err in holding that [Appellant]’s 

current offense is her second offense?

Appellant’s Brief at 4.

Appellant first argues that the trial court erred by denying her motion 

to dismiss all charges for violating her speedy trial rights under Rule 600 and 

the Sixth Amendment of the federal Constitution. We disagree.

Ordinarily, we review the trial court’s order denying Rule 600 relief for 

abuse of discretion. Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017). 

“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.” Commonwealth v. Selenski, 994 A.2d 

1083, 1088 (Pa. 2010). The trial court denied Appellant’s Rule 600 motion 

without a hearing. Nevertheless, based on the existing record, we are able to 

decide Appellant’s Rule 600 argument without remanding this case for a 

hearing.
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Rule 600, Pennsylvania’s speedy trial rule, “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. Dixon, 907 A.2d 

468, 473 (Pa. 2006). Rule 600 provides: “Trial in a court case in which a 

written complaint is filed against the defendant shall commence within 365 

days from the date on which the complaint is filed.” Pa.R.Crim.P. 

600(A)(2)(a). 

Rule 600 does not automatically mandate discharge when trial starts 

more than 365 days after the filing of the complaint. Commonwealth v. 

Moore, 214 A.3d 244, 248 (Pa. Super. 2019). Instead, Rule 600 “provides 

for dismissal of charges only in cases in which the defendant has not been 

brought to trial within the term of the adjusted run date, after subtracting all 

excludable and excusable time.” Id. The court calculates the adjusted run 

date by adding to the mechanical run date (the date 365 days from the 

complaint) both excludable time and excusable delay. Id. “Excludable time” 

constitutes periods of delay caused by the defendant. Pa.R.Crim.P. 600(C)(2).

“Excusable delay” is delay caused by circumstances beyond the 

Commonwealth’s control and despite its due diligence. Moore, 214 A.3d at 

248-49. “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 
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punctilious care, but rather a showing by the Commonwealth that a reasonable 

effort has been put forth.” Id. at 249. 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. 

Id. Periods of delay caused by the Commonwealth’s failure to exercise due 

diligence must be included in the computation of time within which trial must 

commence. Pa.R.Crim.P. 600(C)(1).

Excusable delay includes periods of judicial delay. Commonwealth v. 

Mills, 162 A.3d 323, 325 (Pa. 2017). “[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.” Id. “The majority 

of Rule 600 cases discussing the concept of judicial delay occur in the context 

of scheduling delays, where the Commonwealth is ready to proceed but unable 

to do so due to the scheduling limitations of the trial court.” Commonwealth 

v. Carter, 204 A.3d 945, 948 (Pa. Super. 2019) (citing Commonwealth v. 

Bethea, 185 A.3d 364, 372 (Pa. Super. 2018) (judicial delay excludable and 

not chargeable to Commonwealth where delay “was plainly attributable to the 

schedule limitations of the trial court”); Commonwealth v. Triplett, 932 

A.2d 188, 198 (Pa. Super. 2007) (Commonwealth cannot control schedule of 

trial court, and therefore judicial delay can support extension of Rule 600 

rundate)).
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On the other hand, “time attributable to the normal progression of a 

case simply is not ‘delay’ for purposes of Rule 600.” Id. “Time during which 

no one is prepared for trial—or even possibly could be ready,” is not “delay.” 

Mills, 162 A.3d at 325 (in attempted murder case, 174-day delay between 

filing of complaint and status conference was chargeable against 

Commonwealth under Rule 600; at time of status conference, Commonwealth 

was not yet in position to provide complete discovery, assigned assistant 

district attorney had a planned vacation on the then-scheduled trial date two 

weeks later, and Commonwealth had not yet initiated DNA testing of genetic 

material from defendant). Moreover, the Commonwealth’s duty of due 

diligence includes the duty to “monitor the Rule 600 time frame” and take 

affirmative steps in the event of judicial inaction. Commonwealth v. Sloan, 

67 A.3d 1249, 1254 (Pa. Super. 2009). Thus, in Sloan, we ruled that the trial 

court properly held the Commonwealth accountable where it permitted the 

trial court’s arraignment clerk to schedule a status conference beyond the Rule 

600 run date without monitoring the Rule 600 deadline and notifying the clerk 

of his error. Id.; see also Commonwealth v. Thompson, 136 A.3d 178, 

185 (Pa. Super. 2016) (Commonwealth’s “mere assertions of due diligence 

are insufficient, rather due diligence requires affirmative action”).

Appellant argues, and the Commonwealth does not dispute, that the 

Commonwealth is responsible for 129 days of delay between June 29, 2017, 

the date of filing of the criminal complaint, and February 13, 2018, the date 
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the trial court decided Appellant’s Motion To Determine Number Of Prior 

Offenses.

3

The parties dispute whether two time periods after the February 13, 

2018 order are attributable to the Commonwealth under Rule 600: (1) the 

261-day hiatus between February 13, 2018 and November 1, 2018, the date 

the trial court held a status conference and placed Appellant’s case on the 

January trial list, and (2) the 64-day gap between November 1, 2018 and 

January 4, 2019, the date Appellant filed her Rule 600 motion. The trial court 

held that none of this time is attributable to the Commonwealth. We hold that 

part of the first time period—158 days between February 13, 2018 and July 

11, 2018—is attributable to the Commonwealth, but the remainder of the first 

time period, and the entire second time period, is not.

____________________________________________

3 The 129 days attributable to the Commonwealth come from four delays: (1)

32 days between June 29, 2017, the date of the complaint, and August 3, 

2017, the scheduled date of Appellant’s preliminary hearing; (2) 22 days 

between August 17, 2017, the actual date of the preliminary hearing, and 

September 8, 2017, the date of Appellant’s formal arraignment; (3) 41 days 

between September 8, 2017, the date of arraignment, to October 19, 2017, 

the first scheduled date of a status conference with the court; and (4) 34 days 

between November 16, 2017, the second scheduled date of the status 

conference, to December 20, 2017, the date Appellant filed her Motion To 

Determine Number Of Prior Offenses.

Appellant concedes that three delays are attributable to her instead of the 

Commonwealth: (1) a continuance of her preliminary hearing from August 3, 

2017 to August 17, 2017 that she requested; (2) a continuance of the status 

conference from October 19, 2017 to November 16, 2017 that she requested; 

and (3) the delay from December 20, 2017 to February 13, 2018 caused by 

her Motion To Determine Number Of Prior Offenses.
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In between February 13, 2018 and July 11, 2018, the trial court took no 

action to place this case on the trial list. During these 158 days, the 

Commonwealth did not ask the trial court to place this case on the trial list or 

take any other action to bring this case to trial. Such complete inaction is 

unacceptable in view of the Commonwealth’s requirement under Rule 600 to 

take affirmative steps to remedy judicial inertia. Sloan, Thompson, supra.

Between July 11, 2018 and November 1, 2018, however, the 

Commonwealth repeatedly notified the court that this case was withering on 

the judicial vine. On July 11, 2018, the Commonwealth e-mailed the court 

administrator that Appellant’s case had not been rescheduled. The court 

administrator still took no action. On September 21, 2018, the 

Commonwealth emailed requests to the court administrator and the secretary 

of the assigned judge to schedule Appellant’s case for a status conference. 

Several weeks later, the new judge assigned to the case scheduled a status 

conference for November 1, 2018. Although the Commonwealth might have 

done more, such as sending weekly reminders to court administration about 

Appellant’s case, the law makes clear that “due diligence does not require 

perfect vigilance and punctilious care” but merely proof that the 

Commonwealth made a “reasonable effort,” Moore, 214 A.3d at 249, through 

“affirmative steps.” Sloan, 67 A.3d at 1254. In our view, the 

Commonwealth’s emails to court administration and the assigned judge’s 

secretary between July 11, 2018 and November 1, 2018 constituted 
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reasonable affirmative steps to bring this case to trial. This time period is not 

chargeable to the Commonwealth under Rule 600.

Appellant’s reliance on Commonwealth v. Booze, 947 A.2d 1287 (Pa. 

Super. 2008), is misplaced. In Booze, this Court upheld the dismissal of 

charges against the defendant under Rule 600 where the Commonwealth 

knew that she was in a Maryland prison but failed to exercise due diligence to 

secure her upon the disposition of the Maryland charges. Under the Interstate 

Agreement on Detainers (“IAD”),4 42 Pa.C.S.A. §§ 9101-71, the 

Commonwealth had the options of filing a formal detainer with Maryland 

officials or instituting extradition proceedings in Maryland. Although the 

Commonwealth faxed a copy of its criminal complaint to Maryland, there were 

no assurances by Maryland authorities that the complaint would in fact serve 

as a detainer. Nor did the Commonwealth institute extradition proceedings.

The Commonwealth acted improperly in Booze by failing to take 

advantage of statutory remedies available under the IAD. Here, in contrast, 

there were no remedies under Rule 600 that would have been reasonable for 

the Commonwealth to take. Rule 600(C) permits the Commonwealth to seek 

a continuance, but the Commonwealth had no reason to request a continuance 

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4 “The IAD is a compact among 48 states, the District of Columbia and the 

United States. The IAD establishes procedures for the transfer of prisoners 

incarcerated in one jurisdiction . . . to the temporary custody of another 

jurisdiction . . . which has lodged a detainer against them.” Commonwealth 

v. Plowden, 157 A.3d 933, 938 n.5 (Pa. Super. 2017) (en banc).
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in 2018 because it was ready for trial. Rule 600(D) makes certain remedies 

available for the defendant in appropriate circumstances, such as a motion to 

dismiss, but does not provide any remedy for the Commonwealth. Since there 

was no rule-based remedy, the Commonwealth needed to find another 

practical step to get this case back on track. It took that step by repeatedly 

requesting, in writing, that court administration and/or the judge schedule a 

status conference. By taking this measure, the Commonwealth satisfied its 

duty of due diligence for the period between July 11, 2018 and November 1, 

2018.5

With regard to the next time period between November 1, 2018 and 

January 4, 2019,6the trial court held a status conference on November 1, 

2018 and listed the case for trial on the trial list for January 11, 2018. This 

____________________________________________

5 Our reasoning is analogous to this Court’s recent en banc decision in 

Plowden. There, between July and October 2014, the Commonwealth took 

no steps to secure the defendant’s return from New York, but on October 9, 

2014, it formally requested the defendant’s return from New York under the 

IAD. We held that the time between July and October was attributable to the 

Commonwealth, id., 157 A.3d at 941-42, but the time after October 9, 2014 

until the beginning of trial in January 2015 was not attributable because the 

Commonwealth exercised due diligence through its IAD request. Id. at 942. 

Similarly, in this case, the time between February 13, 2018 and July 11, 2018 

is attributable to the Commonwealth due to its inaction. The time between 

July 11, 2018 and November 1, 2018, during which the Commonwealth acted 

affirmatively to bring this case to trial, is not chargeable to the 

Commonwealth.

6Appellant does not argue that any time between January 4, 2019 and January 

28, 2019, the date of trial, is attributable to the Commonwealth.
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time is not attributable to the Commonwealth because it resulted from judicial 

delay beyond the Commonwealth’s control. Carter, Bethea, Triplett, supra.

In total, 287 days are attributable to the Commonwealth under Rule 

600, well within Rule 600’s 365-day limit. Pa.R.Crim.P. 600(A)(2)(a). 

Accordingly, Appellant’s Rule 600 argument fails.

Appellant’s Sixth Amendment speedy trial argument fails as well. Under 

the balancing test articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 

2182, 33 L.Ed.2d 101 (1972), we first examine the threshold question of 

whether “the delay itself is sufficient to trigger further inquiry.” 

Commonwealth v. Miscovitch, 64 A.3d 672, 679 (Pa. Super. 2013). If the 

delay is sufficient to trigger further inquiry, we then “balance the length of the 

delay with the reason for the delay, the defendant’s timely assertion of his 

right to a speedy trial, and any resulting prejudice to the interests protected 

by the right to a speedy trial.” Id. 

It is more difficult to establish a Sixth Amendment speedy trial violation 

than a Rule 600 violation, a fact demonstrated by decisions that the Sixth 

Amendment is not violated even when trial takes place a short time beyond 

the Rule 600 deadline. Commonwealth v. Preston, 904 A.2d 1, 15 (Pa. 

Super. 2006) (citing Commonwealth v. Crowley, 466 A.2d 1009, 1014 n.9 

(Pa. 1983)). Since trial in this case took place within the Rule 600 deadline, 

there was no Sixth Amendment speedy trial violation. Stated in terms of the 
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Barker test, delays that do not result in a Rule 600 violation are not “sufficient 

to trigger further inquiry” under Barker. Miscovitch, 64 A.3d at 679.

In her next argument, Appellant contends that the trial court erred by 

grading her as a second-time DUI offender, because the date of her first DUI 

offense, February 24, 2007, was more than ten years before the date of her 

present offense, May 20, 2017. Based on our Supreme Court’s recent decision 

in Commonwealth v. Mock, 219 A.3d 1155 (Pa. 2019), and our analysis in 

Commonwealth v. Atkins, 2020 WL 90661 (Pa. Super. 2020),7 we conclude 

that the trial court properly sentenced Appellant as a second-time offender.

In Mock, the defendant committed his first DUI offense on June 3, 2006, 

was convicted of this offense on March 27, 2007, and committed another DUI 

offense on July 10, 2016. Following his arrest for the 2016 DUI offense, the 

Commonwealth charged him with DUI as a second offense. The defendant 

moved to quash the information, arguing that the 2016 DUI was not a second 

offense because he committed the first DUI more than ten years before he 

committed the second DUI. The trial court denied the motion to quash, and 

the Superior Court affirmed. Our Supreme Court granted the defendant’s 

petition for allowance of appeal and affirmed the Superior Court’s order, 

holding: “the ten-year lookback period in [75 Pa.C.S.A. §] 3806 runs from 

____________________________________________

7 Although Atkins is an unpublished decision, we may cite it for its persuasive 

value because it was filed after May 1, 2019. Pa.R.A.P. 126(b).
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the occurrence date of the present offense to the conviction date of the earlier 

offense.” Id., 219 A.3d at 1160. The Court reasoned:

Section 3806 includes a “[g]eneral rule” and a specific rule relating 

to “[t]iming.” 75 Pa.C.S.[A.] § 3806. The general rule in 

subsection (a), limited by the phrase “[e]xcept as set forth in 

subsection (b),” defines prior offense as “any conviction” or 

alternative disposition “before the sentencing on the present 

violation” for offenses such as DUI and applies to the entirety of 

Chapter 38. Id. The specific rule in subsection (b), relevant for 

grading and penalty purposes, states that a prior offense “must 

have occurred ... within [ten] years prior to the date of the offense 

for which the defendant is being sentenced[.]” Id. Applying the 

definition of prior offense provided in subsection (a), subsection 

(b) reads “the prior offense,” i.e., conviction or alternative 

disposition, “must have occurred ... within ten years prior to the 

date of the offense for which defendant is being sentenced.” Id.

This interpretation also gives effect to the exclusionary phrase in 

subsection (a), which signals that subsection (b) limits the scope 

of “prior offense” in subsection (a), defined as “any conviction,” 

to only those convictions taking place within the timing confines 

of subsection (b). Id. Thus, the plain language of the statute 

requires that the ten-year lookback period runs from the 

occurrence date of the present offense to the conviction date of 

the earlier offense. [The defendant] was properly sentenced as a 

second-time offender because his earlier conviction took place less 

than ten years before he committed the present offense.

Id. at 1160-61 (emphasis added).

In Atkins, the defendant was charged with DUI on August 1, 2007. Like 

Appellant herein, the defendant was admitted into ARD on February 8, 2008. 

On August 29, 2017, he committed another DUI offense. The defendant 

claimed that he could not be sentenced as a second-time DUI offender

because the dates of his offenses were more than ten years apart. Following 

Mock, we held it was proper to sentence the defendant as a second-time 
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offender because he entered ARD for his first DUI offense less than ten years 

before committing his second DUI offense:

Although Appellant’s first DUI resulted in his being accepted into 

ARD—and did not, as in Mock, result in a conviction—Mock still 

controls the outcome of this case. As Mock holds, Section 

3806(a) provides the “general definition” of the term “prior 

offense;” and, according to Mock, the general definition is 

“applicable throughout the remainder of the statute.” Id., [219 

A.3d at 1162].

In keeping with Mock and the plain language of the statute, we 

note that Section 3806(a) defines the term “prior offense,” in 

relevant part, as: “any ... acceptance of Accelerated Rehabilitative 

Disposition ... for ... an offense under section 3802 (relating to 

driving under influence of alcohol or controlled substance).” 

75 Pa.C.S.A. § 3806(a). Using this definition of “prior offense,” 

Section 3806(b) must be read in the following manner: “[f]or 

purposes of sections ... 3803 (relating to grading) [and] 3804 

(relating to penalties) ..., the prior offense [(i.e. the ‘acceptance 

of Accelerated Rehabilitative Disposition’ for a Section 3802 

offense) ] must have occurred ... within 10 years prior to the date 

of the offense for which [Appellant] is being sentenced.”

75 Pa.C.S.A. § 3806; Mock, [219 A.3d at 1161].

In the case at bar, Appellant was accepted into ARD for his first 

DUI on February 8, 2008 and he committed his second DUI within 

ten years of this date—on August 29, 2017. As such, pursuant to 

Mock and the plain statutory language of Section 3806, Appellant 

was properly convicted of DUI as a second offense.

Id., 2020 WL 90661 at *4.

This case resembles Atkins. While Appellant’s first DUI offense took 

place more than ten years before the present offense, she entered ARD less 

than ten years before the present offense. Therefore, based on our Supreme 

Court’s interpretation of Section 3806 in Mock, and this Court’s persuasive 
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analysis in Atkins, we hold that the trial court properly sentenced Appellant 

as a second-time offender. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/13/2020