J-A19004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ALEX MCGINTY, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 561 EDA 2019

Appeal from the Order Entered January 15, 2019

In the Court of Common Pleas of Monroe County 

Criminal Division at No(s): CP-45-CR-0002173-2014

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 06, 2019

The Commonwealth of Pennsylvania appeals from the order granting the 

motion to dismiss pursuant to Pa.R.Crim.P. 600 filed by Appellee, Alex Robert 

McGinty. The Commonwealth contends that the trial court 

misapplied Rule 600 and erred in finding that the Commonwealth failed to 

exercise due diligence. The trial court held:

The Commonwealth is required to act with due diligence 

throughout this period and maintain adequate records to 

ensure compliance with Rule 600. The Commonwealth 

failed to submit records of any efforts to bring Defendant 

to trial within the time constraints of Rule 600. We find 

that the facts here are more akin to [Commonwealth v. 

Barbour, 189 A.3d 944 (Pa. 2018)] and we will grant 

Defendant Motion to Dismiss pursuant to Pa.R.Crim.P. 600.

Trial Court Opinion, 1-15-19, at 8. We affirm.

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* Former Justice specially assigned to the Superior Court.
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We need only summarize the procedural history of this appeal. On 

September 24, 2012, the Commonwealth filed a Criminal Complaint charging 

Appellee with two counts of Aggravated Assault1 and Assault by Prisoner.2

Bail was set on September 27, 2012, however, Appellee was unable to 

make bail and was incarcerated. Following a number of continuances, mostly 

requested by Appellee, a preliminary hearing was finally held on October 27, 

2014, during which Appellee waived all of the charges into court. 

A Criminal Information was filed on November 20, 2014. A bail hearing 

was held on December 8, 2014, which resulted in Appellee being immediately 

released on unsecured bail. The case was placed on the Criminal Trial Term 

for February 2015.

On January 28, 2015, the trial court removed the case from the February 

trial list and placed it on the March 2015 Criminal Trial Term. A status 

conference was scheduled for February 18, 2015, with counsel and Appellee 

ordered to appear. However, Appellee did not appear for the February 18th

conference, and the conference was continued to February 25, 2015. The trial 

court was under the impression that a bench warrant had been issued on 

February 18, 2015, following the Appellee’s nonappearance, however a review 

of the docket entries indicates that no bench warrant had been issued on that 

day. On February 25, 2015, the trial court again noted that Appellee had 

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1 18 Pa.C.S.A. §§ 2702(a)(2) & (3).

2 18 Pa.C.S.A. § 2703(a).
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failed to appear, and mistakenly referred to the earlier bench warrant, which 

had not been issued. 

A pre-trial conference was eventually scheduled for June 6, 2018, which 

was continued to August 22, 2018.3 Once again, the Appellee was ordered to 

appear for the pre-trial conference. On August 2, 2018, Appellee filed a motion 

to dismiss based upon an alleged violation of Pa.R.Crim.P. 600. A hearing was 

held on the motion on September 20, 2018.

Following the hearing, and the filing of briefs by the parties, the trial 

court filed an opinion and order on January 15, 2019, which granted the 

motion and dismissed the Criminal Information with prejudice. 

This appeal was timely filed by the Commonwealth. The trial court 

properly filed a Statement in accordance with Pa.R.A.P. 1925(a), which 

directed our attention to the opinion of January 15, 2019. 

The trial court found that the mechanical run date for purposes of Rule 

600 was March 23, 2013 because of the Appellee’s pretrial incarceration. The 

trial court further noted that the Appellee had been released on unsecured bail 

on December 8, 2014, which was past the mechanical run date. As stated 

above, there was, at least, a desire in the trial court to issue a bench warrant 

after the Appellee’s nonappearance in February 2015. In citing to 

Commonwealth v. Barbour, 189 A.3d 944 (Pa. 2018), however, the trial 

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3 See Trial Court Orders of May 22, 2018, June 6, 2018, and July 25, 2018.
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court found that the Appellee’s Rule 600 rights had already been transgressed 

by that time. See Trial Court Opinion, 1/15/19, at 7.

On appeal, the Commonwealth argues that the majority of the delay in 

this case was the cause “of either the Appellee seeking continuances of his 

case, or his being absent from the proceedings without cause, leading to the 

issuance of a bench warrant”. See Appellant's Brief at 4.

By way of further background to the Commonwealth's arguments, there 

does not appear to be any dispute that the mechanical run date 

under Rule 600(A)(1) expired on March 23, 2013. We have diligently reviewed 

the docket entries which are available, and we are constrained to agree with 

the trial court that the adjusted run date had expired prior to the Appellee’s 

nonappearance in 2015. 

On appeal, the Commonwealth emphasizes that the trial court was 

under an obligation to exclude any time or delay attributable to the Appellee, 

as well as any excusable delay that occurred due to circumstance beyond the 

Commonwealth’s control and despite its due diligence. Commonwealth's Brief 

at 10. The Commonwealth asserts that Appellee’s requests for continuances 

up until his willful failure to appear on February 25, 2015 amounted to 637 

days. If the trial court had accounted for these delays, then there was no Rule 

600 violation up to the February 25, 2015 conference. 

The standards governing our review are well established.

[O]ur standard of review of a trial court's decision is 

whether the trial court abused its discretion. Judicial 
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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. Leaner, 202 A.3d 749, 765-66 (Pa. Super. 2019) 

(citation and internal alterations omitted), appeal denied, 216 A.3d 226 (Pa.,

filed July 2, 2019).

Rule 600 provides:

(A) Commencement of Trial; Time for Trial

(1) For the purpose of this rule, trial shall be deemed to 

commence on the date the trial judge calls the case to trial, 

or the defendant tenders a plea of guilty or nolo

contendere.

(2) Trial shall commence within the following time periods.

(a) 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.

* * *

(C) Computation of Time

(1) For purposes of paragraph (A), 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 in the computation of the time 

within which trial must commence. Any other periods of 

delay shall be excluded from the computation.

* * *

(D) Remedies

(1) When a defendant has not been brought to trial within 

the time periods set forth in paragraph (A), at any time 

before trial, the defendant's attorney, or the defendant if 
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unrepresented, may file a written motion requesting that 

the charges be dismissed with prejudice on the ground that 

this rule has been violated. A copy of the motion shall be 

served on the attorney for the Commonwealth concurrently 

with filing. The judge shall conduct a hearing on the 

motion.

Pa.R.Crim.P. 600(A)(1), (A)(2)(a), (C)(1), (D)(1).

As this Court has stated:

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 good faith prosecution 

delayed through no fault of the Commonwealth.

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, 1135 (Pa. Super. 2011)

(citation omitted). Furthermore, 

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.” The adjusted run date is 

calculated by adding to the mechanical run date, i.e., the 

date 365 days from the complaint, both excludable time 

and excusable delay. “Excludable time” is classified as 
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periods of delay caused by the defendant. “Excusable 

delay” occurs where the delay is caused by circumstances 

beyond the Commonwealth's control and despite its due 

diligence. “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 punctilious care, but 

rather a showing by the Commonwealth that a reasonable 

effort has been put forth.” 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. 

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.

Commonwealth v. Moore, 214 A.3d 244, 248-249 (Pa. Super. 2019) 

(citations omitted).

In Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017), the 

Pennsylvania Supreme Court noted that “time attributable to the normal 

progression of a case simply is not ‘delay’ for purposes of Rule 600.” Mills, 

162 A.3d at 325. Mills rejected a bright-line rule that “ordinary trial 

preparation” is “excludible as a matter of course.” Id. at 325, n.1. Instead, 

the Mills Court emphasized that “courts of original jurisdiction must apply 

judgment in distinguishing between delay attributable to the court and that 

which should be allocated to a party.” Id. at 325.

“Once a violation of Rule 600 has been established, ... the inquiry 

becomes whether the Commonwealth exercised due diligence in bringing [a 

defendant] to trial and if the circumstances occasioning the postponement 

were beyond the control of the Commonwealth.” Commonwealth v. Kearse, 

890 A.2d 388, 392 (Pa. Super. 2005). “The Commonwealth ... has the burden 
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of demonstrating by a preponderance of the evidence that it exercised due 

diligence.” Commonwealth v. Cole, 167 A.3d 49, 71 (Pa. Super. 2017) 

(citation and quotation marks omitted), appeal denied, 186 A.3d 370 (Pa. 

2018).

Instantly, we agree with the trial court that the Commonwealth did not 

meet its burden to establish additional time was excusable 

under Rule 600. We note that other than the February 25, 2015 bench 

warrant, the Commonwealth presented no evidence of its due diligence. See

N.T., 9/20/18, at 6. Although the Commonwealth refers to the total time 

excusable, the trial court concluded that the Commonwealth had failed to 

establish that it had acted with due diligence during the pendency of this 

prosecution. The Commonwealth does not contest the trial court’s finding that 

Appellee complied with the special conditions of his bail, notably that he reside 

in the NHS group home in Effort, Pennsylvania. See Trial Court Opinion, 

11/15/19, at 6. As a result, the Commonwealth also does not challenge the 

court’s finding that Appellee “had absconded to cause delay.” Id. at 7. 

In sum, having reviewed the record in a light most favorable to Appellee 

as the prevailing party and the Commonwealth's limited arguments, the 

Commonwealth has not established an abuse of discretion. See Leaner, 202 

A.3d at 765-66. The Commonwealth failed to develop an appropriate record 

to support its arguments that it exercised due diligence or the delays were 
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beyond its control. See Kearse, 890 A.2d at 392; see also Pa.R.A.P. 302(a). 

Accordingly, we are constrained to conclude that no relief is due.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2019