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

Appellant

v.

ALEX MCGINTY, JR. : : : : : : : : : 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 c ontends that the trial court misapplied Rule 600 and erred in finding that the Commonwealth failed to exercise due diligence. T he 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. 201 8)] and we will grant Defendant Motion to Dismiss pursuant to Pa.R.Crim.P. 600. Trial Court Opinion, 1

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- 19, at 8. We affirm.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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W e need only summarize the procedural history of this appeal. On September 24, 2012, the Commonwealth filed a Criminal C omplain t charging Appellee with two counts of Aggravated Assault 1 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 p r eliminary h earing 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 immed iately 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 18 th conference, and the conference was continued to February 25, 2015. The trial court was under the impression that a ben ch 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 ha d

_________________ __________ ______ ____ _______
1 18 Pa.C.S.A. §§ 2702(a)(2) & (3). 2 18 Pa.C.S.A. § 2703(a).J

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failed to appear, and mistakenly referred to the earlier bench warrant, which
had not been issued.
A p re - t rial c onference 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 p re - t rial c onference. On August 2, 2018 , Appellee filed a m otion
to d ismiss 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 o pinion and o rder on January 15, 2019, which granted the

m otion 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 o pinion of January 15, 2019. The trial court found that the mechanical run date for pur poses 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 w as, 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

_________________ __________ ______ ____ _______ 3 See Trial Court Orders of May 22, 2018, June 6, 2018, and July 25, 2018.J

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court found that the Appellee’s Rule 600 rights had al ready 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 th e 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) ex pired on March 23, 2013. We have diligently reviewed the docket entries which are available, and we are constrained to agree with
the trial court t hat the adjusted run date had expired prior to the Appellee’s nonappearance in 2015. On appeal, the Commonwe alth 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. Common wealth'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 stan dards 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. JudicialJ

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- discretion requires action in conformity with law, upon facts and circumstances judicially befo re 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 partial ity, 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 cou rt 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 provide s: (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 wit hin 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 ifJ

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- unrepresented, may file a wr itten 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 th e 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 individ ual accused, but the collective right of the community to vigorous law enforcement as well.
Commonwealth v. Peterson, 19 A.3d 1131, 1135 (Pa. Super. 201 1 ) (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 complain t, both excludable time and excusable delay. “Excludable time” is classified asJ

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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 dili gence 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 d iligenc e must be included in the computation of time within which trial must commence.
Commonwealth v. Moore , 2 14 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 bee n 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 burdenJ

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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 de nied , 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 p resented 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, 11/15/1 9, 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 Commonweal th's limited arguments, the
Commonwealth has not established an abuse of discretion. See Leaner , 202
A.3d at 765

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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