J-A21023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LARRY BARKSDALE

Appellant No. 2353 EDA 2014

Appeal from the Judgment of Sentence July 15, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0005411-2012

BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 04, 2015

Appellant, Larry Barksdale, appeals from the July 15, 2014 judgment 

of sentence of 90 days to six months’ incarceration, imposed after the trial 

court found him guilty in a bench trial of driving under the influence of 

alcohol (DUI), general impairment.1 After careful consideration, we affirm.

We summarize the general procedural history of this case as follows. 

In connection with events occurring on April 19, 2012, Officer Shaun Kozak 

of the Plymouth Township Police Department charged Appellant with DUI by 

criminal complaint filed May 23, 2012. Following a preliminary hearing, the 

case was bound over to the Court of Common Pleas of Montgomery County 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802(a)(1).
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on July 17, 2012. Following numerous continuances, listings for pretrial 

conferences, and other proceedings, Appellant, on April 28, 2014, filed a 

motion to dismiss, alleging violation of his speedy trial rights under 

Pennsylvania Rule of Criminal Procedure 600. The trial court held a hearing 

on Appellant’s motion on June 19, 2014. That same day, the trial court 

denied Appellant’s motion to dismiss. A bench trial was conducted on July 

15, 2014, and the trial court found Appellant guilty of DUI and sentenced 

him as aforesaid. 

On August 14, 2014, the trial court granted Appellant’s privately 

retained counsel’s petition to withdraw. That same day, Appellant filed a 

timely pro se notice of appeal. Although not ordered to do so, Appellant 

filed a pro se concise statement of errors complained of on appeal pursuant 

to Pennsylvania Rule of Appellate Procedure 1925(b) contemporaneously 

with his notice of appeal. The trial court issued its Rule 1925(a) opinion on 

September 15, 2014. 

Noting that counsel had been permitted to withdraw, and Appellant

was proceeding pro se absent any hearing, the Commonwealth petitioned 

this Court on December 12, 2014, for remand to the trial court for a 

Grazier2 hearing or appointment of counsel. We granted the 

____________________________________________

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (holding the trial 

court must ascertain on the record that a defendant’s decision to proceed 

pro se is knowing, intelligent, and voluntary).
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Commonwealth’s petition on January 26, 2015. Thereafter, Appellant’s 

former private counsel entered his appearance with this Court on February 

24, 2015.

On appeal, Appellant raises the following issues for our review. 

I. Whether the trial court abused its discretion 

when it denied Appellant’s Petition for Dismissal of 

Charges Pursuant to Pa.R.Crim.P. 600 because it 

improperly calculated the period of time within which 

the Commonwealth had to bring Appellant to trial 

pursuant to Rule 600?[3]

II. Whether the trial court abused its discretion 

when it determined that the periods of time 

Appellant was not transported to court from a state 

correctional institute constituted excusable delay, 

and that the Commonwealth exercised reasonable 

efforts to bring [Appellant] to trial[?]

Appellant’s Brief at 4.

In addressing these issues, we adhere to the following standard and 

scope of review. “When reviewing a trial court’s decision in a Rule 600 case, 

an appellate court will reverse only if the trial court abused its discretion.” 

Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012).

____________________________________________

3 The trial court reviewed Appellant’s motion to dismiss under the version of 

Rule 600 in effect at the time of the filing of the motion. On July 1, 2013, 

the former rule was rescinded and a new Rule 600 was adopted which 

“clarified the provisions of the rule in view of the long line of cases that have 

construed the rule.” Pa.R.Crim.P. 600, cmt. The new rule consolidates the 

former distinction between excludable and excusable time in the calculation 

of an adjusted run date. Id. at 600(C)(1). Appellant acknowledges that the 

analysis under either version of the rule would be essentially the same. 

Appellant’s Brief at 11. Our citations in the body of this memorandum are, 

therefore, to the former Rule.
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Judicial discretion requires action in conformity 

with law, upon facts and circumstances judicially 

before the court, after [a] 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.

...

So long as there has been no misconduct on 

the part of the Commonwealth in an effort to evade 

the fundamental speedy trial rights of an accused, 

Rule 600 must be construed in a manner consistent 

with society’s right to punish and deter crime. In 

considering these matters ..., courts must carefully 

factor into the ultimate equation not only the 

prerogatives of the individual accused, but the 

collective right of the community to vigorous law 

enforcement as well.

Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en 

banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).

The courts of this Commonwealth employ an initial three-step analysis 

to determine whether Rule 600 requires dismissal of the charges against a 

defendant.

The first step in determining whether a 

technical violation of Rule 600 [...] 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. [T]he 
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mechanical run date is ascertained by counting the 

number of days from the triggering event - e.g., the 

date on which ... the criminal complaint was filed - to 

the date on which trial must commence under Rule 

[600]. Pa.R.Crim.P. [600(A)(3)].

Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal 

citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second 

step, we must “determine whether any excludable time exists pursuant to 

Rule 600(C).” Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. 

Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third 

step, “[w]e add the amount of excludable time, if any, to the mechanical run 

date to arrive at an adjusted run date.” Id. It is well settled that any delay 

occasioned by a defendant is excludable time in the calculation of the 

adjusted run date. Pa.R.Crim.P. 600(C)(2), (3); Preston, supra.

Furthermore, delays not attributable to a defendant but where the 

Commonwealth is found to have acted with due diligence in attempting to 

commence a timely trial but was prevented by circumstances beyond its 

control, is considered excusable time and likewise added to the mechanical 

run date. Pa.R.Crim.P. 600(G); accord Commonwealth v. Wholaver, 989 

A.2d 883, 899 (Pa. 2010), cert. denied, Wholaver v. Pennsylvania, 562 

U.S. 933 (2010). “‘Excusable delay’ is not expressly defined in Rule 600, 

but the legal construct takes into account delays which occur as a result of 

circumstances beyond the Commonwealth’s control and despite its due 
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diligence.” Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super. 

2004), appeal denied, 875 A.2d 1073 (Pa. 2005).

“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, [supra] at 14 (citation 

omitted).

Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012), appeal 

denied, 63 A.3d 1245 (Pa. 2013). Any time prior to trial, a defendant may 

move the trial court for dismissal of the charges if the Commonwealth has 

violated the Rule. Pa.R.Crim.P. 600(G).

At the June 19, 2014 Rule 600 hearing, the trial court made the 

following findings as reiterated in its Rule 1925(a) opinion. 

A. May 23, 2012 to October 24, 2012: Both 

parties conceded that the first 154 days count 

against the Commonwealth. As a result, [the trial 

c]ourt determined this period of time goes against 

the Commonwealth.

B. October 24, 2012 to January 15, 2013: 

This period of time is excludable due to concession 

by Appellant. As a result, [the trial c]ourt 

determined this period of time goes against 

Appellant.
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C. January 15, 2013 to April 17, 2013: 

Here, [the trial c]ourt determined this period of time

counts against the Commonwealth.

D. April 17, 2013 [to] July 8, 2013: A guilty 

plea hearing was scheduled to occur on April 17, 

2013. However, on April 17, 2013, Appellant 

changed his mind about pleading guilty and 

requested this matter be placed back on the Pre-Trial 

Conference list. Appellant also signed a Rule 600 

waiver and conceded that this period is excludable. 

As a result, [the trial c]ourt determined this period of 

time goes against Appellant.

E. July 8, 2013 [to] October 29, 2013: [The 

trial c]ourt determined this period counts against the 

Commonwealth, because there is nothing in the 

record to show otherwise.

F. October 29, 2013 [to] December 12, 

2013: [The trial c]ourt determined this period of 

time counts against Appellant because his counsel 

requested a continuance on October 29, 2013.

G. December 12, 2013 [to] February 11, 

2014: [The trial c]ourt determined this period of 

time goes against the Commonwealth.

H. February 11, 2014 [to] June 1, 2014: 

[The trial c]ourt determined that this period of time 

is an excusable delay due to the police officer’s 

unavailability.

Trial Court Opinion, 9/15/14, at 7-8; see also N.T., 6/19/14, at 51-55.

In his first issue, Appellant contends the trial court, based on its own 

findings, miscalculated the adjusted run date under Rule 600. Appellant’s 

Brief at 11. Specifically, Appellant contends it was error for the trial court 

to treat Appellant’s April 17, 2013 waiver as creating a new start date for 

calculating Rule 600’s 365-day period, rather than merely extending the run 
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date from April 17, 2013, to the next scheduled event, in this case to July 8, 

2013. Id. at 14; See Trial Court Opinion, 9/15/14 at 8; see also N.T., 

6/19/14, at 52. The trial court reasons as follows. “Based on the above 

time breakdown, Appellant signed a Rule 600 waiver on April 17, 2013. As 

such, the Commonwealth had 365 days from the date Appellant signed the 

Rule 600 waiver to bring him to trial. This Court computed that day number 

304 started on February 11, 2014....” Trial Court Opinion, 9/15/14, at 8.

Appellant contends “[t]he trial court’s arbitrary decision to begin the 

365 day period within which [Appellant] should have been tried on April 17, 

2013, ignores the previous 329 days that had elapsed since the complaint 

was filed, 246 of which the trial court determined did not constitute 

excludable or excusable delay” Appellant’s Brief at 14. The Commonwealth 

concedes this was error. “The Commonwealth concedes that the trial court 

improperly calculated the adjusted run date in its opinion because it used 

the date of [Appellant’s] waiver as its start-date.” Commonwealth’s Brief at 

5 n.2. We agree.

In assessing a Rule 600 claim, the court must 

exclude from the time for commencement of trial 

any periods ... for which he expressly waived his 

rights under Rule 600. ... If the defense does 

indicate approval or acceptance of the continuance, 

the time associated with the continuance is 

excludable under Rule 600 as a defense request.

Hunt, supra at 1241 (citations omitted, emphasis added).
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The trial court’s miscalculation resulted in an improperly stated 

adjusted run date. Based on the specific findings of the trial court, the 

mechanical run date under Rule 600 is 365 days from the date of the filing 

of the criminal complaint on May 23, 2012, or May 23, 2013. Trial Court 

Opinion, 9/15/14, at 7. The trial court found three periods of excludable 

delay based on Defense-requested continuances and or Rule 600 waivers. 

The first of these was the 83 days from October 24, 2012, to January 15, 

2013, which brought the adjusted run date to August 14, 2013. Id. The 

second excludable period was the 82 days from April 17, 2013 to July 8, 

2013, which brought the adjusted run date to November 4, 2013. Id. The 

last of these was the 44 days from October 29, 2013 to December 12, 2013, 

which brought the adjusted run date to December 18, 2013. Id. The 

Commonwealth did not bring Appellant to trial by that date. Thus, the trial 

court’s conclusion, based on its express findings that, “day number 304 

started on February 11, 2014” is erroneous.4 Rather, based on a proper 

calculation of the trial court’s expressly found excludable time, as of 

February 11, 2014, Appellant’s trial was already 55 days past the adjusted 

____________________________________________

4

 The trial court also determined there was one period of excusable delay, 

i.e., the 111 days from February 11, 2014 to June 1, 2014 due to the 

unavailability of Officer Kozak, who was on injury leave during that time. 

Trial Court Opinion, 9/15/14, at 8. Appellant does not challenge this finding. 

Additionally, Appellant raised no renewed challenge to the 44-day period 

from June 1, 2014, to July 15, 2014, the date of trial, which we deem is also 

excludable or excusable. Accordingly, we do not need to review the periods 

after February 11, 2014 in the context of the Commonwealth’s Rule 600 

compliance in this case.
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run date of December 18, 2013. This is calculated by adding the 209 days 

of identified excludable time as of February 11, 2014 to the mechanical run 

date of May 25, 2013. 

Based on the foregoing, we agree with the parties that the trial court 

erred. See Hunt, supra. Accordingly, to prevail, it was incumbent upon 

the Commonwealth to demonstrate additional excludable or excusable time 

that would extend the adjustable run date beyond February 11, 2014. This 

leads us to Appellant’s second issue.

In his second issue, Appellant asserts that the trial court’s general 

conclusion that the Commonwealth acted with due diligence in timely 

commencing trial is unsupported by the evidence adduced at the Rule 600 

motion hearing. Appellant’s Brief at 15-16. “There is nothing in the record 

to support the trial court’s determination that the Commonwealth exercised 

reasonable diligence in bringing [Appellant] to trial, and as such, its decision 

was arbitrary and baseless and constituted an abuse of discretion.” Id. at 

16. Specifically, with reference to delays attributable to the failure to 

transport Appellant to the courthouse on several occasions, Appellant 

contends as follows.

The Commonwealth was aware that [Appellant] was 

an inmate in a state correctional institution, and that 

on several occasions[] [Appellant] was not 

transported to court. [Appellant’s] previous counsel 

described the situation as “a chronic problem of him 

not being brought down from the state correctional 

institution.” Nevertheless, the Commonwealth failed 

to take any action to secure [Appellant’s] presence in 
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time for trial, such as requesting a writ be issued to 

transport [Appellant], or arranging housing in the 

Montgomery County Correctional Facility, or 

coordinating a video conference with the institution 

where [Appellant] was incarcerated.

Id. at 18. 

The Commonwealth argues to the contrary that this Court may still 

affirm the trial court’s ruling based on other, more general findings by the 

trial court. Commonwealth’s Brief at 5 n.2. “[The trial court’s] error, in 

itself, is not reversible because the record demonstrates that the trial court 

reached the proper conclusion, even though it used an improper method. 

See Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001) 

([the Superior Court] Court may affirm on any grounds).” Id.

In addition to the specific findings cited above, the trial court made the 

following findings. 

[T]here is no evidence in the record of any conduct 

on the part of the Commonwealth calculated to 

evade Appellant’s speedy trial rights. The record 

demonstrates the Commonwealth put forth 

reasonable efforts to bring Appell[ant] to trial within 

the limits set by Rule 600. The record also 

demonstrates that most of the circumstances 

occasioning the postponement, such as Appellant’s 

transportation to the Courthouse, were beyond the 

control of the Commonwealth. Based on the facts of 

this case, [the trial c]ourt concluded that the 

Commonwealth exercised due diligence in bringing 

Appellant to trial and the circumstances that caused 

the delay of the trial were excusable.

Trial Court Opinion, 9/15/14, at 9. Having already concluded, albeit based 

on a faulty calculation, that the adjusted run date had not been reached, the 
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trial court did not specifically identify and quantify these additional periods of 

excusable delay or include them in its adjusted run date calculation. 

Nevertheless, we conclude the trial court’s findings are supported by the 

record and demonstrate additional excusable delay that supports the trial 

court’s ultimate determination that no Rule 600 violation occurred.

At the Rule 600 motion hearing, Appellant testified that there were 

several times he was transported from the State Correctional Facility (SCI) 

at Dallas to SCI Graterford without being further transported to the 

Montgomery County Courthouse. N.T., 6/19/14, at 31. The record reveals 

that the trial court issued at least 18 transport orders for Appellant’s case 

prior to the Rule 600 motion hearing.5 The Commonwealth notes in 

particular that “[o]n July 19, 2013, defendant was not transported to the 

courthouse despite the trial court’s transportation order. Accordingly, the 

time from the transportation failure until his next appearance is ... 

excusable.” Commonwealth’s Brief at 10-11, citing Commonwealth v. 

Mines, 797 A.2d 963 (Pa. Super. 2002), appeal denied, 812 A.2d 1229 (Pa. 

2002).

____________________________________________

5 These include orders to transport Appellant from the SCI to the 

Montgomery County Courthouse for appearances at hearings or conferences 

scheduled for September 24, 2012, October 24, 2012, January 15, 2013, 

March 15, 2013, July 8, 2013, July 9, 2013, July 19, 2013, October 18, 

2013, October 21, 2013, November 7, 2013, December 12, 2013, December 

10, 2013, February 6, 2014, February 10, 2014, February 11, 2014, March 

18, 2014, and June 19, 2014, respectively.
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In Mines, we held “it is not within the control of either the prosecutor 

or the trial court to bring every defendant to the courtroom when desired.” 

Mines, supra at 965. Accordingly, the Mines Court held that delays 

occasioned by the absence of an incarcerated defendant despite the 

“issuance of a bringdown and writ for the defendant’s appearance are not 

chargeable to the Commonwealth.” Id. Judge Klein, writing for the 

Majority, further opined as follows.

As one with twenty-eight years of experience as a 

trial judge in Philadelphia, I certainly sympathize 

with the problems of judges and prosecutors trying 

to obtain the presence of an incarcerated defendant 

for trial who is in the state prison system on another 

case. While it is difficult in an individual case to 

ascertain which of a number of agencies are at fault, 

the possibilities generally fall with the Clerk of 

Quarter Sessions, the Sheriff, and the state prison 

system. These are all independent agencies[]. None 

report to the prosecutor or the court.

Id. at 966.

The cases cited by Appellant for the proposition that the 

Commonwealth is responsible for taking action to secure an incarcerated 

defendant’s presence for court proceedings did not involve the factual 

scenario here, where the trial court issued an order to transport Appellant. 

See Appellant’s Brief at 17, citing, Commonwealth v. Colon, 87 A.3d 352 

(Pa. Super. 2014), Commonwealth v. Haynes, 488 A.2d 602 (Pa. Super. 

1985), Commonwealth v. Pichini, 454 A.2d 609 (Pa. Super. 1982), and 

Commonwealth v. Martin, 371 A.2d 903 (Pa. Super. 1977). We conclude 
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the trial court’s finding that the Commonwealth acted with due diligence in 

this case is supported by the record, and the delay occasioned by the failure 

to bring Appellant to the courthouse despite the trial court’s order 

constitutes excusable time for purposes of calculating the adjusted run date 

under Rule 600. 

In this instance, the excusable time from July 19, 2013 to the next 

court date of October 18, 2013 is 91 days. By adding the 209 days of 

previously identified excludable time, and the 91 days we have determined 

are excusable under Rule 600, to the mechanical run date of May 23, 2013, 

the adjusted run date as of February 11, 2014, becomes March 19, 2014. 

Because there is no dispute that all time after February 11, 2014 is either 

excludable or excusable, the adjusted run date as of April 28, 2014, the date 

of Appellant’s motion to dismiss, becomes June 3, 2014. Accordingly, the 

trial court did not err in concluding a Rule 600 violation did not occur. 

For all the foregoing reasons, we conclude the trial court did not abuse 

its discretion by denying Appellant’s motion to dismiss for violation of Rule 

600. See Bradford, supra. Accordingly, we affirm the July 15, 2014 

judgment of sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/4/2015