J-S14038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

THOMAS GEORGE STANKO

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 881 WDA 2021

Appeal from the Order Entered June 30, 2021

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0005589-2017

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS STANKO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 882 WDA 2021

Appeal from the Order Entered June 30, 2021

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0001820-2018

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS GEORGE STANKO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 883 WDA 2021

Appeal from the Order Entered June 30, 2021

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0001943-2018
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BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: June 6, 2022

In these consolidated appeals, the Commonwealth challenges three

orders of the Court of Common Pleas of Westmoreland County (trial court) 

dismissing with prejudice the offenses charged at the above-captioned docket 

numbers because the speedy trial periods had elapsed pursuant to 

Pa.R.Crim.P. 600. The Commonwealth argues that the trial court abused its 

discretion by not excluding from its computation of time the days that Thomas 

George Stanko (Stanko) spent in federal custody. We affirm.

I.

Prosecutors in Westmoreland County charged Stanko in three separate 

matters on July 24, 2017 (case number 5589 C 2017); January 21, 2018 (case 

number 1943 C 2018); and April 12, 2018 (case number 1820 C 2018).

1

While these three cases were still pending, on December 12, 2018, 

Stanko was indicted in the United States District Court for the Western District 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 At case number 5589 C 2017, Stanko was charged with simple assault (18 

Pa.C.S. § 2701(a)(1)), harassment (18 Pa.C.S. § 2709(a)(1)), and disorderly 

conduct (19 Pa.C.S. § 5503(a)(1)). At case number 1820 C 2018, Stanko was 

charged with receiving stolen property (18 Pa.C.S. § 3925(a)). At case 

number 1943 C 2018, Stanko was charged with operating a vehicle not 

equipped with ignition interlock (75 Pa.C.S. § 3808(a)(1)), improper changing 

of lanes (75 Pa.C.S. § 3309(1)), operating a vehicle without functioning 

headlights (75 Pa.C.S. § 4303(A)), and operating a vehicle without adequate 

restraint systems (75 Pa.C.S. § 4581(a)(ii)).
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of Pennsylvania at 403 MD 2019 and charged with being a felon in possession 

of a firearm and ammunition (18 U.S.C. § 922(g)). On December 14, 2018, 

a United States magistrate judge entered a writ of habeas corpus ad 

prosequendum “for Initial Appearance set for 1/15/2019.” This writ directed 

that Stanko would be taken into federal custody to ensure his presence at a 

hearing on January 15, 2019, at the end of which Stanko would be returned 

to the custody of Westmoreland County. Pursuant to the federal writ, Stanko

was taken into federal custody on the day of the hearing on January 15, 2019. 

It appears that federal authorities housed Stanko in the Allegheny County jail

for that proceeding, which was held in Pittsburgh.

On January 18, 2019, the trial court entered a transport order directing 

the Superintendent of the Allegheny County jail to ensure Stanko’s presence 

in Westmoreland County for a status conference concerning case number 1943 

C 2018. The transport order provided further that Stanko would be “returned 

to the Allegheny County Jail upon completion of the [s]tatus [c]onference 

unless he or she is no longer subject to a sentence to be served with the 

Allegheny County Jail or the court orders otherwise.” Trial Court Transport 

Order, 1/18/2019, at 1 (case number 1943 C 2018).

Stanko was returned without incident to the custody of Westmoreland 

County on January 24, 2019, so that he could appear for his status conference 

on February 15, 2019. Sometime after that date, Stanko went back into 
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federal custody, where he has remained.2 The trial court entered a writ of 

habeas corpus ad prosequendum on June 19, 2019, directing that Stanko be 

brought to Westmoreland County for a preliminary hearing on an unrelated 

case (403 C 2019) on June 21, 2019, but he was not made available.

The record is sparse concerning the relationship between the federal 

and county charges, but there is enough information to glean that during all 

of those prosecutions, Stanko was suspected of having some connection to 

the murder of his ex-girlfriend, Cassandra Gross, who has been missing since

April 2018. No one has yet been charged in connection with her death.

On October 29, 2020, Stanko moved to dismiss three of his

Westmoreland County criminal cases, arguing that the prompt trial periods

____________________________________________

2 The parties dispute the means by which Stanko was turned over to federal 

authorities at this time. The defense argued (and the trial court agreed) that 

the record did not establish exactly how or when Stanko went into federal 

custody after the February 15, 2019 status conference in Westmoreland 

County. The Commonwealth has argued that the trial court’s January 18, 

2019 transport order is what precipitated the custody change, but that 

characterization is dubious. The trial court ordered that Stanko would be sent 

to “the Allegheny County Jail” after his status conference in Westmoreland 

County had concluded. By moving Stanko from one county facility to another, 

the trial court clearly did not intend for Stanko to be confined indefinitely in

federal custody while the county cases were pending. The trial court certainly 

had no cause to suspect that federal authorities would permit Stanko’s 

transport on the one occasion and then never again while the federal charges 

were pending. Additionally, Stanko’s transport to the Allegheny County jail 

appeared to be conditioned in part on Stanko being “subject to a sentence” in 

that particular jurisdiction – a fact which the record does not establish. Thus, 

the record is silent as to why the Commonwealth lost and could not regain 

custody of Stanko from that point forward.
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had elapsed.3 He claimed that the Commonwealth had violated Rule 600, 

which requires the Commonwealth to bring defendants to trial within 365 days 

of the date that the charges were filed. The trial court held an evidentiary 

hearing on Stanko’s motion on December 18, 2020. Stanko was not present 

at the hearing, as he remained in federal custody.

Initially, the Commonwealth noted Stanko’s absence at the hearing and 

called into question “the efficacy, wisdom, and knowing, intelligent, and 

voluntary nature” of the motion to dismiss in light of the fact that the three 

cases were being used as “[bargaining] chips in Mr. Stanko’s negotiation 

process” in the federal matter. Hearing Transcript, 12/18/2020, at pp. 2-3. 

After accepting that Stanko nevertheless intended to seek dismissal, the 

Commonwealth attempted to prove its due diligence4 with four pieces of 

evidence:

(1) The federal writ of habeas corpus ad prosequendum entered 

on December 14, 2018, intended to secure Stanko’s presence at 

a preliminary hearing concerning the federal case on January 15, 

2019;

(2) A docket entry from June 19, 2019, recording the trial court’s 

writ of habeas corpus ad prosequendum, intended to secure 

Stanko’s presence at a preliminary hearing on June 21, 2019,

____________________________________________

3 The fourth Westmoreland County case, docketed case number 403 C 2019, 

is not at issue in the present appeals.

4 As will be discussed in greater detail below, a delay in the proceedings which 

occurs despite the Commonwealth’s exercise of due diligence cannot be

included in the speedy trial computation.
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concerning an unrelated case (the fourth in Westmoreland 

County) docketed at case number 403 C 2019;

(3) A brief email sent by a United States Marshal to county 

prosecutors on the day Stanko moved for dismissal, advising that 

“[p]er the order on the attached writ, Stanko will remain in 

[federal custody] until disposition of his fed charges,” at which 

time “he will be returned to Westmoreland County custody 

accompanied by a USMS Judgment and Commitment detainer”; 

and

(4) A federal docket showing that Stanko had been actively 

litigating his case in that jurisdiction.

Hearing Transcript, 12/18/2020, Commonwealth Exhibits 1-4.

Based on the pendency of the federal case and the apparent 

unwillingness of federal authorities to transfer Stanko to Westmoreland 

County, the Commonwealth argued that none of the resulting delays in 

Stanko’s cases were attributable to the prosecution for the purposes of Rule 

600. Along the same lines, the Commonwealth argued that the federal writ 

of habeas corpus ad prosequendum “trumped” the rival writ filed by the trial 

court in case number 403 C 2019, making it futile for the Commonwealth to 

try to secure Stanko’s presence.

Defense counsel countered that the Commonwealth was responsible for 

the delays in bringing Stanko’s county cases to trial. According to defense 

counsel, the district attorney had “turned away the prosecution that could’ve 

been here, because the [alleged weapon possession] was allegedly here in 

Westmoreland County on the guns that were charged.” Id. at p. 11. In other 

words, defense counsel identified the unusual circumstances of the state and 
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federal cases as evidence that the Commonwealth was attempting to keep the 

county charges pending for as long as possible. Defense counsel argued that 

the scant evidence of due diligence offered by the Commonwealth 

demonstrated its lack of genuine interest in taking the cases to trial.

On June 30, 2021, the trial court entered orders in all three cases 

granting Stanko’s Rule 600 motions. After adjusting the respective run dates 

of each case based on delays attributable to the defense and other excusable 

delays, the trial court found that the Commonwealth’s lack of due diligence 

during Stanko’s federal custody had stalled the trials beyond their adjusted 

run-dates, warranting dismissal. The Commonwealth timely appealed, and it 

was then directed to submit a concise statement of errors as to all three orders 

it had challenged. See Pa.R.A.P. 1925(b). On August 12, 2021, the 

Commonwealth timely submitted its 1925(b) statements, each of which 

included one identical issue:

1. The trial court erred by failing to exclude or excuse from the 

computation of time pursuant to Pa.R.Crim.P. Rule 600(A) and 

(C)(1) the period of time after February 15, 2019 where [Stanko] 

was in federal custody and unavailable to the [trial court].

Commonwealth’s 1925(b) Statements, 8/12/2021, at 1-2.

The trial court entered three substantially similar 1925(a) opinions on 

November 29, 2021. As to the Commonwealth’s evidence of due diligence, 

the trial court commented:

The Commonwealth has presented no explanation for when, how, 

or why Stanko was transferred to federal custody after he was 

returned to state custody for his in-person appearance in this 
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court on February 15, 2019. This lack of curiosity on the part of 

the Commonwealth and its apparent lack of recognition that it has 

an obligation to provide an answer to this Court identifying the 

legal authority for the defendant’s subsequent return to federal 

custody is consistent with its failure to provide evidence 

documenting its efforts to effect progress in the defendant’s 

prosecution in state court[.]

Trial Court 1925(a) Opinion, 11/29/2021 at 8 (case number 5589 C 2017).

The trial court then expanded in its finding that the Commonwealth had 

made an insufficient showing of due diligence after federal authorities had 

taken custody of Stanko on February 15, 2019:

After Stanko’s removal from the Westmoreland County Prison, the 

Commonwealth did absolutely nothing to assert the state’s

primary jurisdiction, to secure Stanko’s presence for numerous 

hearings in this matter, or to challenge the removal of the 

defendant from state custody. The Commonwealth rather clearly

allowed the defendant to remain in the custody of another 

jurisdiction while it stood idly by.

Throughout, while professing an inability to obtain custody of 

Stanko for his appearance before this Court, the Commonwealth 

never asserted its primary jurisdiction to challenge the federal

government’s unauthorized seizure and detention of the 

defendant; nor did the Commonwealth ever seek a writ of habeas 

corpus ad prosequendum in this case for the purpose of obtaining

custody of Stanko (either through its primary jurisdiction or even 

temporarily for the purpose of appearing at a hearing before this 

Court in order to further the progress of the prosecution). This

stance is anathema to the Constitution’s guarantee of a speedy 

trial and to Rule 600 which implements the protection for this very 

important right.

Id. at 11 (paragraph indentation added).

Apart from its finding that the Commonwealth did not prove due 

diligence, the trial court made a separate determination of “misconduct” and 

an “abuse of power” by the District Attorney’s Office of Westmoreland County. 
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See generally id. at 25-26.5 The trial court inferred from the record and 

“extended observation of the Commonwealth’s representatives” that 

prosecutors may have assisted or allowed the federal government’s seizure of 

Stanko “in the hopes that they could develop a case of homicide against [him]” 

and use the county cases as bargaining “‘chips’ “in plea negotiations.” Id.

The trial court surmised that the county prosecutors were strategically 

dragging the cases out so that Stanko would remain in custody for as long as 

the murder investigation required. Id.

The trial court was also concerned that the email from the United States 

Marshal introduced by the Commonwealth “was generated at the request of 

the Commonwealth after Stanko’s Rule 600 motion was filed in order to create 

a ‘paper trail’ which did not otherwise exist.” Id. at 21 (emphasis in original). 

The trial court found this to be a misleading attempt to demonstrate due 

diligence, see id., and the Commonwealth has since conceded that it “sought 

documentation of the Marshal’s position on the matter for purposes of 

presenting it to the trial court.” Appellant’s Brief, at 15-16.

In its appellate brief, the Commonwealth included a statement of 

questions involved which mirrored its 1925(b) statements. See Appellant’s 

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5 The trial court stressed that the standard for finding prosecutorial misconduct

is “not the yardstick for measuring due diligence under Rule 600.” Trial Court 

1925(a) Opinion, 11/29/2021, at 25 (case number 5589 C 2017). The trial 

court’s dismissal of the cases, therefore, did not hinge on the findings of 

misconduct or intentional delay by the Commonwealth.
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Brief, at 1. However, in the body of the brief, the Commonwealth argued for 

the first time that the trial court was bound by contemporaneous continuance

orders excluding Stanko’s time in federal custody and that the resulting delay 

should have been excluded from the speedy trial calculations. The 

Commonwealth also argued for the first time that the finding of prosecutorial 

misconduct “as the justification [for the dismissals] establishes that the [trial 

court] was predisposed to dismiss these charges, but forced to manipulate the 

record in order to achieve that end.” Appellant’s Brief, at 13.

In response, Stanko contends that the Commonwealth has waived all of 

its appellate claims because its Rule 1925(b) statements lacked sufficient 

specificity to preserve any of the issues raised on appeal. Stanko also 

maintains that dismissal was proper because the trial court correctly found 

that the Commonwealth had failed to prove it exercised due diligence while 

he remained in federal custody.

Significantly, the Commonwealth and Stanko seem to agree that it is 

dispositive in all three appeals whether, for the purposes of Rule 600, the time

Stanko spent in federal custody was properly excluded from the speedy trial 

calculations. Since Stanko has been in federal custody for over a year, a 

period which exceeds the speedy trial period, our adjudication as to that

disputed period necessarily controls the outcome of all three appeals.
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II.

The Commonwealth’s central contention is that the trial court abused its 

discretion in finding that delays in bringing Stanko to trial were attributable to 

the Commonwealth despite that, during the relevant periods, Stanko was 

being held in federal custody. Two subsidiary issues of that general claim are

(a) whether the trial court’s prior continuance orders excluding the relevant 

periods of federal custody were binding in the absence of subsequent evidence

of Stanko’s availability, and (b) whether the trial court’s findings, including 

the determination of prosecutorial misconduct, stemmed from the trial court’s

bias against the Commonwealth.

A.

Pennsylvania’s prompt trial rule affords defendants charged with 

criminal offenses the right to be brought to trial within 365 days of the filing 

of the complaint. See Pa.R.Crim.P. 600(A)(2)(a). The computation of the 

speedy trial period does not include delay caused by the defendant’s 

unavailability or other delays which occurred despite the Commonwealth’s 

exercise of due diligence. See Pa.R.Crim.P. 600(C)(1)-(2); see also 

Commonwealth v. Thomas, 879 A.2d 246 (Pa. Super. 2005) (same).

In determining whether the Commonwealth has exercised due diligence, 

the courts have explained that the inquiry “is fact-specific, to be determined 

case-by-case; it does not require perfect vigilance and punctilious care, but 

merely a showing the Commonwealth has put forth a reasonable effort.” 
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Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). It is the 

Commonwealth, not the defendant, who bears the “burden of demonstrating 

by a preponderance of the evidence that it exercised due diligence.” 

Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012).

A defendant may be deemed unavailable to stand trial if he is being 

detained in another jurisdiction. See Commonwealth v Williams, 896 A.2d 

523, 537 (Pa. 2006); Commonwealth v. Woods, 663 A.2d 803, 807–08 (Pa.

Super. 1995); Commonwealth v. DeMarco, 481 A.2d 632, 635–37 (Pa.

Super. 1984); see also Comment to Pa.R.Crim.P. 600 (“[T]he defendant 

should be deemed unavailable for the period of time during which the 

defendant contested extradition, or a responding jurisdiction delayed or 

refused to grant extradition . . . or during which the defendant was absent 

under compulsory process requiring his or her appearance elsewhere in 

connection with other judicial proceedings.”).

However, for the purposes of Rule 600, it is still incumbent on the 

Commonwealth to demonstrate regular due diligence throughout the period in 

which the defendant is held in another jurisdiction’s custody. See

Commonwealth v. McCafferty, 363 A.2d 1239, 1241 (Pa. Super. 1976)

(“There is no question, therefore, that the duty imposed on the

Commonwealth . . . to bring a defendant to trial within the prescribed period 

is not affected by the fact of his incarceration elsewhere or by his failure to 

demand trial.”); Commonwealth v Alexander, 464 A.2d 1376, 1382 (Pa. 
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Super 1983) (same); Commonwealth v. Haynes, 488 A2d 602, 604-05 (Pa. 

Super. 1985) (same).

The Commonwealth’s bare assertion or subjective belief that a 

defendant is unavailable in another jurisdiction does not satisfy the due 

diligence requirement of Rule 600. See Commonwealth v. Colon, 87 A.3d 

352, 359-61 (Pa. Super. 2014); Commonwealth v Thompson, 136 A.3d 

178 (Pa. Super. 2016) (same). By the same token, “a failure to keep adequate 

records of its efforts to secure [a defendant’s] presence at trial militates 

against any conclusion the Commonwealth acted with due diligence.” 

Thompson, 136 A.3d at 184; see also Commonwealth v. Morgan, 239 

A.3d 1132 (Pa. Super. 2020) (vacating judgment of sentence on speedy trial 

grounds where Commonwealth did not demonstrate a reasonable effort to 

secure defendant’s transfer while he was held in another jurisdiction).

The standard of review as to a ruling on a Rule 600 motion is whether 

the trial court abused its discretion. See Commonwealth v. Hunt, 858 A.2d 

1234, 1238 (Pa. Super. 2004). “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.” Id. (quoting Commonwealth v. Jones, 826 A.2d 900,

907 (Pa. Super. 2003) (en banc)). The record facts must be viewed on appeal 
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“in the light most favorable to the prevailing party.” Id. (quoting 

Commonwealth v. Jackson, 765 A.2d 389, 392 (Pa. Super. 2000)).

B.

Here, we find that the trial court did not abuse its discretion in 

concluding that the Commonwealth failed to exercise due diligence in bringing 

Stanko to trial during the time he was being held in federal custody (from 

February 15, 2019 until the date the Rule 600 motions were filed on October 

29, 2020). The Commonwealth offered minimal evidence at the hearing on 

the Rule 600 motions that it took reasonable measures during that period to 

secure Stanko’s presence. The Commonwealth’s evidence was limited to a 

federal writ; a docket entry recording a writ entered in Westmoreland County 

in an unrelated case; the email sent to county prosecutors on October 29, 

2020, by a United States Marshal declining extradition; and the docket 

concerning Stanko’s federal case.

The federal writ was intended to secure Stanko’s presence for one 

preliminary hearing on January 15, 2019. After that preliminary hearing took 

place, he was successfully transported back to Westmoreland County. Stanko 

was then again sent back to federal authorities on February 15, 2019, and the 

record reflects that the Commonwealth did next to nothing from that point on. 

No explanation has been given as to how the federal writ remains in force 

despite the completion of its mandate; why Stanko could be transported to 
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Westmoreland County once in early 2019 but not thereafter; and what the 

Commonwealth did afterwards to honor Stanko’s speedy trial rights.

The Commonwealth points to the October 29, 2020 email it received 

from a United States Marshal as proof of due diligence and Stanko’s 

unavailability, but this correspondence instead supports the trial court’s 

conclusion. The email provides no context into the Commonwealth’s efforts 

for the preceding year-and-a-half in which Stanko was held in federal custody 

– the email chain and any related correspondence was curiously omitted from 

the Commonwealth’s exhibit. The trial court also correctly observed that the 

email was sent on the same day that Stanko’s Rule 600 motions were filed, 

making it reasonable to infer that the Commonwealth had made a token effort

of contact with federal authorities to give the appearance of due diligence. 

The Commonwealth has since conceded that it only obtained this email in 

response to Stanko’s Rule 600 motions.

Additionally, the United States Marshal’s professed authority for keeping 

Stanko in custody for as long as needed to resolve his case (the federal writ) 

did not actually confer such powers and, yet, the Commonwealth meekly 

accepted the refusal to transport Stanko as the final word in the matter. One 

would think that if the Commonwealth was really set on bringing Stanko to 
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trial, it would have at some point conferred with a federal prosecutor or filed

a motion in the district court for him to be brought to Westmoreland County.6

The Commonwealth’s rather flimsy pretext for its consistent inaction

supports the trial court’s conclusion that the Commonwealth failed to prove 

its due diligence during Stanko’s time in federal custody. See 1925(a) 

Opinion, at 21. Thus, the trial court did not abuse its discretion in granting 

dismissal.7

C.

As for the Commonwealth’s first sub-issue regarding the trial court’s 

continuance orders excluding the periods of federal custody from the speedy 

____________________________________________

6 The federal docket introduced by the Commonwealth would only be arguably 

probative of its due diligence or Stanko’s unavailability if the Commonwealth 

had demonstrated that it had sought to have Stanko transferred to 

Westmoreland County at times that unavoidably overlapped with federal 

litigation. No such showing was made here.

7 The present matters are distinguishable from the facts of Commonwealth 

v. Thomas, 879 A.2d 246 (Pa. Super. 2005), which the Commonwealth 

discusses in its brief. See Appellant’s Brief, at 10-11. In Thomas, this Court 

held that the trial court did not abuse its discretion in finding that the 

Commonwealth acted with due diligence when it formed an “understanding”

with the federal government that the defendant would be released to state 

custody once sentencing had concluded in the federal case. See 879 A.2d at 

252. Thomas is inapplicable because the trial court had determined that the 

Commonwealth acted with due diligence “during this time period” of federal 

custody. Id. By contrast, the Commonwealth never offered proof of any such

understanding in the instant cases. The Commonwealth insists it was 

powerless to act once Stanko went into federal custody, but it supported that 

claim with a single communication between prosecutors and a United States 

Marshal that was sent only after the speedy trial periods had already elapsed.
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trial computation, we find that the claim was not preserved for appellate 

review, and that even if it was properly raised, the issue is meritless.

A party is precluded from obtaining appellate relief as to claims of error 

that have not been adequately preserved for review. Generally, an issue is 

preserved for purposes of appeal if it is raised before the trial court in the first 

instance. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are 

waived and cannot be raised for the first time on appeal.”). Where the trial 

court has directed the filing of a statement of issues complaining of on appeal, 

any issue not included in the statement is waived. See Pa.R.A.P. 

1925(b)(4)(vii); see also Pa.R.A.P. 1925(b)(4)(v) (issues included in the 

statement will be deemed to encompass all subsidiary issues which had 

already been “raised in the trial court”). “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.” Commonwealth v. Leaner, 202 A.3d 749, 765-

66 (Pa. Super. 2019).

The only issue identified in the Commonwealth’s 1925(b) statements is 

whether the trial court erred in excluding Stanko’s time in federal custody 

from the Rule 600 calculations. At the hearing held on December 18, 2020, 

the Commonwealth did not argue that the trial court was bound by earlier 

continuance orders excluding from the Rule 600 computation the time Stanko 

was in federal custody or that any particular delays were attributable to the 

defense. Neither the trial court’s continuance orders nor the respective county 
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dockets were admitted into evidence, and the record cannot be supplemented 

with those documents on appeal. See Commonwealth v. Entz, 888 MDA 

2019 (Pa. Super. June 12, 2020) (unpublished memorandum decision) 

(affirming dismissal where Commonwealth had not admitted into evidence 

documentation of its efforts at the Rule 600 hearing). Thus, the sub-issue is 

now waived.

Even if the Commonwealth had preserved the claim that the trial court 

was bound by its earlier continuance orders, the issue would lack merit. Rule 

600(C)(b) provides that the grant or denial of a continuance “is subject to 

review” by the trial court in the event that a motion to dismiss is filed by the 

defendant. See Pa.R.Crim.P. 600(D)(3). Once Stanko filed Rule 600 motions 

in his cases, and the trial court was given the benefit of an evidentiary hearing

and arguments from counsel, it would have been fully within the trial court’s 

discretion to reconsider its earlier orders in light of the complete record and 

conclude that due diligence had not been proven. Thus, the Commonwealth’s 

first sub-claim was waived, and regardless, no relief would be due even if it 

had been preserved for review.

D.

Finally, the second of the Commonwealth’s two sub-issues is that the 

trial court abused its discretion because it was “predisposed to dismiss these 

charges, but forced to manipulate the record in order to achieve that end.” 

Appellant’s Brief, at 13.
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This issue is preserved because the trial court’s finding of prosecutorial 

misconduct first appeared in its 1925(a) opinions, and the Commonwealth 

disputed that finding at the earliest opportunity. See Commonwealth v. 

Poncala, 915 A.2d 97, 105 (Pa. Super. 2006) (“[T]he issue Appellant raised 

on appeal is properly before this Court, because Appellant’s claim is in direct 

response to the trial court’s Rule 1925(a) opinion and raised at the first 

opportunity Appellant could raise the issue.”).

Under our standard of review, the orders of dismissal must be affirmed 

as long as there is some evidence in the record which supports an impartial

finding that the Commonwealth failed to exercise due diligence during the 

period in question. See Hunt, 858 A.2d at 1238. As the trial court noted in 

the present cases, and as our Supreme Court has made clear, “our speedy 

trial decision turns solely on whether the Commonwealth exercised due 

diligence,” so “‘we need not consider whether there exists misconduct on the 

part of the Commonwealth in an effort to evade the fundamental speedy trial 

rights of an accused.’” Colon, 87 A.3d at 360 (quoting Bradford, 46 A.3d at 

703).

In our discussion above, we explained that the trial court did not abuse 

its discretion with respect to its findings on due diligence because there was 

no competent record evidence that the Commonwealth made reasonable 

efforts to secure Stanko’s presence at the relevant times. This finding compels 
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the affirmance of the dismissals under our standard of review. See Colon, 

87 A.3d at 360.

Nevertheless, the Commonwealth argues that the trial court’s finding of 

prosecutorial misconduct reveals that it “was predisposed to dismiss these 

charges” and had to “manipulate the record in order to achieve that end.” 

Appellant’s Brief, at 13. We find no merit to this claim of judicial bias because 

the trial court made its finding of misconduct by drawing reasonable inferences 

from the record evidence:

 The Commonwealth admitted that it elicited an email from 

a United States Marshal only after Stanko moved for dismissal so 

that the email could be used as proof of due diligence;

 The Commonwealth oddly referred to the three pending 

county cases as bargaining “chips”; and

 The Commonwealth demonstrated the ability to transfer

Stanko from federal custody to Westmoreland County without 

incident in January 2019, disproving the claim that it was 

impossible for him to be transported.

Just as importantly, it was a glaring absence of evidence which made it 

reasonable for the trial court to infer that the delays of Stanko’s cases were 

due to a “misuse of the power of the office of the district attorney.” Trial Court 

Opinion, 11/29/2021, at 25-26. The trial court noted that no adequate 

explanation was ever given for how Westmoreland County lost custody of 

Stanko in February 2019. The Commonwealth identified no evidence of the 

steps it took between the time Stanko was taken into federal custody and the 

date he filed his motions to dismiss on October 29, 2020. Indeed, the 
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Commonwealth’s last-minute effort on that same date (finally contacting the 

United States Marshal) would reasonably suggest that the prosecutors 

themselves were concerned about the lack of proof showing their due diligence

in the preceding period.

Moreover, we emphasize that the trial court was rightfully skeptical of 

the Commonwealth’s insistence that it had no power to compel Stanko’s 

presence in Westmoreland County:

After Stanko’s removal from the Westmoreland County Prison, the 

Commonwealth did absolutely nothing to assert the state’s 

primary jurisdiction, to secure Stanko’s presence for numerous 

hearings in this matter, or to challenge the removal of the 

defendant from state custody. The Commonwealth rather clearly 

allowed the defendant to remain in the custody of another 

jurisdiction while it stood idly by. Throughout, while professing 

an inability to obtain custody of Stanko for his appearance before 

this Court, the Commonwealth never asserted its primary 

jurisdiction to challenge the federal government’s unauthorized 

seizure and detention of the defendant; nor did the 

Commonwealth ever seek a writ of habeas corpus ad 

prosequendum in this case for the purpose of obtaining custody 

of Stanko (either through its primary jurisdiction or even 

temporarily for the purpose of appearing at a hearing before this 

Court in order to further the progress of the prosecution).

Trial Court Opinion, 11/29/2021, at 12.

After reviewing the record, the briefs and the applicable law, we 

conclude that the Commonwealth’s claim of judicial bias is completely 

unfounded. The trial court acted within its discretion in granting dismissal 

and, thus, the orders on review must stand.
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Orders affirmed.

Judge McLaughlin concurs in the result.

Judge McCaffery concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2022