J-A24028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BRUCE ASHTON

Appellee No. 3443 EDA 2014

Appeal from the Order of November 3, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0005493-2014

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.: FILED NOVEMBER 24, 2015

In this case, the Commonwealth appeals the trial court’s November 3, 

2014 order, which dismissed the Commonwealth’s prosecution of Bruce 

Ashton for driving under the influence of a controlled substance (“DUI”), 75 

Pa.C.S. § 3802(d), based upon the Commonwealth’s purported failure to 

bring Ashton to trial within the applicable speedy trial time limits. We 

reverse the order, and we remand for trial. 

On August 23, 2013, Ashton was charged in Philadelphia with one 

count of DUI, as noted above, and one count of DUI—general impairment. 

75 Pa.C.S. § 3802(a). On January 16, 2014, Ashton appeared before the 

Philadelphia Municipal Court for trial on these two charges. Before trial, the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Commonwealth withdrew the DUI—general impairment count. The 

municipal court judge convicted Ashton of the DUI—controlled substances 

count, which was Ashton’s second DUI conviction.1 On April 14, 2014, the 

municipal court judge sentenced Ashton to ninety days to six months’ 

incarceration, and a concurrent two-year term of probation. 

On May 9, 2014, Ashton filed an appeal for a de novo trial in the Court 

of Common Pleas of Philadelphia County. The de novo trial was scheduled 

for July 18, 2014. On that date, the Commonwealth requested a 

continuance because the arresting officer could not appear for trial due to a 

previously scheduled medical appointment. The trial court granted the 

continuance, and re-scheduled trial for November 3, 2014.

On the trial date, Ashton filed a motion to dismiss the prosecution on 

speedy trial grounds pursuant to Pa.R.Crim.P. 1013(G), which we discuss in 

more detail infra. The trial court heard argument from both sides on the 

motion. Ashton argued that, pursuant to Rule 1013(G), the Commonwealth 

was required to bring him to trial after his de novo appeal within 120 days. 

Due to the Commonwealth’s request for a continuance, which was granted 

by the trial court, trial on November 3, 2014 would have occurred beyond 

____________________________________________

1 The facts presented at trial in support of Ashton’s municipal court 

conviction are immaterial to our disposition of this case. We will not recite 

them here. 
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the 120-day deadline. As such, Ashton maintained that the charges had to 

be dismissed. 

The Commonwealth argued that the continuance was beyond its 

control, because the arresting officer was unavailable due to a medical 

appointment that was scheduled before the trial date had been set. The trial 

court sided with Ashton, granted the motion, and dismissed the charges. 

On November 21, 2014, the Commonwealth filed a notice of appeal. 

On the same date, the Commonwealth filed a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), even though the 

trial court had not yet ordered the Commonwealth to do so. On February 2, 

2015, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a). 

The Commonwealth raises a single question for our review:

Whether the lower court erred in discharging [Ashton] under 

Pa.R.Crim.P. 600 by failing to exclude a Commonwealth 

continuance that had been granted because, as the docket 

states, a police officer witness was unavailable due to a medical 

appointment and the time to try [Ashton] had not expired?

Brief for the Commonwealth at 4. 

We begin with our standard of review for cases implicating Rule 1013’s 

speedy trial rule.

Our standard of review for evaluating claims brought pursuant to 

Rule of Criminal Procedure 1013 is the same as that applied to 

claims made under Rule of Criminal Procedure 600. The purpose 

of the rules is similar, and the case law applies equally to both. 

When considering any “speedy trial” claim, the proper scope of 

review is limited to the evidence on the record from the 

evidentiary hearing and the findings of the trial court. If the 

hearing court denied relief under Rule 1013, appellate courts 
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must view the facts in the light most favorable to the 

Commonwealth as the prevailing party. In assessing a Rule 

1013 issue, we are confined to determining whether the trial 

court committed an “abuse of discretion” in reaching its decision. 

Commonwealth v. Preston, 904 A.2d 1, 9 (Pa. Super. 2006) (en banc) 

(footnote and citations omitted).

Pa.R.Crim.P. 1013 provides “[a] trial de novo in the Court of Common 

Pleas shall commence within a period of 120 days after the notice of appeal 

from the Municipal Court is filed. In all other respects the provisions of Rule 

600 shall apply to such trials in the Court of Common Pleas.” Pa.R.Crim.P.

1013(G). Recently, in Commonwealth v. Lynch, 57 A.3d 120 (Pa. Super. 

2012) (en banc), this Court set forth the principles that govern issues that 

implicate Rule 1013(G), and by implication, Rule 600, as follows:

Similar to Criminal Rule 600, Rule 1013 has excludable time and 

excusable delay:

The first step in determining whether a technical violation 

of Rule 600 or Rule 1013 has occurred is to calculate the 

“mechanical run date.” The mechanical run date is the 

date by which trial must commence under the relevant 

procedural rule. In a municipal court case, the mechanical 

run date is ascertained by counting the number of days 

from the triggering event—e.g., the date on which the 

preliminary arraignment occurred or on which the criminal 

complaint was filed—to the date on which trial must 

commence under Rule 1013. The mechanical run date can 

be modified or extended by adding periods of time in which 

the defendant causes delay. It then becomes an “adjusted 

run date.”

Rules 600 and 1013 take into account both “excludable 

time” and “excusable delay.” “Excludable time” is defined 

by Rule 1013 itself as any period of time during which a 

defendant expressly waives his rights under the Rule. 

Delays caused by the unavailability of the defendant or 
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counsel also are excludable, as are delays for continuances 

granted at the request of the defendant or counsel. 

“Excusable delay” is not expressly defined in either Rule 

600 or in Rule 1013, but the legal construct takes into 

account delays which occur as a result of circumstances 

beyond the Commonwealth’s control and despite its due 

diligence.

Preston, 904 A.2d at 11 (citations omitted). The 

Commonwealth is entitled to an extension of time “upon a record 

showing that trial cannot be commenced within the prescribed 

period despite due diligence by the Commonwealth.” 

Pa.R.Crim.P. 1013(C)(1)(c). “Due-diligence is a fact-specific 

concept that is 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. Booze, 953 

A.2d 1263, 1273 (Pa. Super. 2008) (quotations and quotation 

marks omitted). “Judicial delay may justify postponing trial 

beyond the adjusted run date if the Commonwealth was 

prepared to commence trial prior to the expiration of the 

mandatory period but the court was unavailable because of 

‘scheduling difficulties and the like.’” Preston, 904 A.2d at 14 

(citation omitted).

Lynch, 57 A.3d at 123-24.

As noted earlier, our standard of review requires us to determine 

whether the trial court has abused its discretion in granting Ashton’s motion. 

The trial court did not engage in the required analysis set forth in Lynch. 

Rather, the trial court determined the mechanical run date, observed that 

the November 3, 2014 trial date was beyond that date, and then granted the 

motion. See T.C.O. at 2-3. The court failed to consider whether the delay 

constituted excusable time, or whether the Commonwealth acted with due 

diligence. As such, the court’s decision misapprehended the applicable law, 

and was an abuse of discretion.
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On May 9, 2014, Ashton filed an appeal for a de novo trial. Per Rule 

1013(G), the Commonwealth had 120 days to bring Ashton to trial. Thus, 

the mechanical run date was approximately September 9, 2014. There were 

no defense postponements. Thus, the adjusted run date is the same as the 

mechanical run date.

The trial originally was scheduled for July 18, 2014. However, because 

the arresting officer had a previously scheduled medical appointment, the 

Commonwealth requested, and received, a continuance. Trial was 

rescheduled for November 3, 2014, which was well beyond the 

mechanical/adjusted run date. We must consider whether the delay was 

excusable, and whether the Commonwealth nonetheless acted with due 

diligence.

As explained in Preston and Lynch, excusable delays are those that 

occur as a result of circumstances beyond the Commonwealth’s control and 

despite its due diligence. Here, it is undisputed that the arresting officer was 

a necessary witness, and that the officer was unavailable because of a 

medical appointment that was scheduled before the July 18, 2014, trial date 

was set. This event was not within the means of the Commonwealth to 

control. It involved the personal life of a necessary witness, and it was an 

event that was scheduled before a trial date was set. Moreover, there is 

nothing in the record to suggest that the Commonwealth did not act with 

due diligence. “Due diligence does not require perfect vigilance and 

punctilious care, but rather a showing by the Commonwealth that a 
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reasonable effort has been put forth.” Booze, supra. We observe nothing 

in the record that would permit us to conclude that the Commonwealth did 

not put forth a reasonable effort, particularly where the continuance was due 

to an event that was beyond the control of the Commonwealth. The 

relevant time period that caused the trial to be scheduled beyond the 

applicable date was excusable. 

Lastly, we note that the only factor that the court considered in its 

analysis was the fact that the record did not demonstrate that November 3, 

2014, was the earliest possible available trial date. However, that is not the 

relevant question. The analysis entails determining first the mechanical run 

date, then the adjusted run date. Once that date is established, the court 

then must ascertain whether any time that is attributable to the 

Commonwealth is excusable time, and whether the Commonwealth acted 

with due diligence. Neither excusable time nor due diligence hinge 

exclusively upon whether the Commonwealth sought the earliest possible 

trial date at all times throughout the proceedings. The fact that the 

Commonwealth did not scour the judicial calendar for the first available trial 

date does not mean, ipso facto, that the Commonwealth did not act with due 

diligence. Rather, the record demonstrates that the Commonwealth put 

forth a reasonable effort to bring Ashton to trial, which is the standard for 

due diligence.
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The trial court not only reached the incorrect legal conclusion, but also 

failed to consider a substantial portion of the relevant legal analysis. 

Consequently, the trial court’s decision was an abuse of discretion.

Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2015