J-S18008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES J. FOOTMAN,

Appellant No. 2799 EDA 2013

Appeal from the Judgment of Sentence Entered July 15, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003506-2012

BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 27, 2015

Appellant, James J. Footman, appeals nunc pro tunc from the July 15, 

2013 judgment of sentence of an aggregate term of 4 to 10 years’ 

incarceration, followed by four years’ probation, imposed after he was 

convicted of robbery, receiving stolen property (RSP), and theft by unlawful 

taking. Appellant argues that the trial court abused its discretion by denying 

his pretrial motion to dismiss the charges against him based on a violation of 

Pa.R.Crim.P. 600. We affirm.

Appellant was arrested and charged with the above-stated offenses 

based on a robbery that occurred on October 8, 2011.1 On March 18, 2013, 

Appellant filed a motion to dismiss his case based on a violation of Rule 600. 

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1 The facts of this case are not pertinent to the issue raised by Appellant on 

appeal. 
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On May 16, 2013, the trial court held a hearing on that motion and then 

denied it. Appellant’s case immediately proceeded to a non-jury trial, at the 

conclusion of which the court convicted Appellant of robbery, RSP, and theft. 

Appellant was subsequently sentenced to the aggregate term set forth 

above. He filed a timely post-sentence motion for reconsideration of his 

sentence, which the court denied. Appellant did not file a notice of appeal. 

However, on September 6, 2013, Appellant filed a petition under the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the 

restoration of his direct appeal rights. On September 30, 2013, the PCRA 

court granted Appellant’s petition and he filed a nunc pro tunc notice of 

appeal on October 1, 2013. He also timely complied with the trial court’s 

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of 

on appeal. Herein, Appellant raises one issue for our review: “Did not the 

lower court err in denying [Appellant’s] motion to dismiss pursuant to [Rule] 

600 where [Appellant] was tried after the run[]date and the Commonwealth 

did not exercise due diligence throughout the case, and the court deemed 

the delay ‘de minimis[,’] even though Rule 600 does not contain a ‘de 

minimis’ exception?” Appellant’s Brief at 3.

We begin by noting that “[o]ur standard and scope of review in 

analyzing a Rule 600 issue are both well-settled.” Commonwealth v. 

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

In evaluating Rule 600 issues, our standard of review of 

a trial court's decision is whether the trial court abused its 

discretion. Judicial discretion requires action in conformity 
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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.

Additionally, when considering the trial court's ruling, 

this Court is not permitted to ignore the dual purpose 

behind Rule 600. 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. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 

2007) (en banc) (quoting Commonwealth v. Hunt, 858 A.2d 

1234, 1238 (Pa. Super. 2004) (en banc)).
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Rule 600(A)(2) states that when a complaint is filed against a 

defendant who is incarcerated, trial must begin 180 days from 

the date on which the complaint was filed.[2] Similarly, Rule 

600(A)(3) requires that trial commence for a defendant at liberty 

on bail within 365 days of the filing of the written complaint. The 

rule further provides that certain periods are excluded from Rule 

600 calculation. Specifically, the rule delineates in pertinent 

part:

(C) In determining the period for commencement of trial, 

there shall be excluded therefrom:

(1) the period of time between the filing of the 

written complaint and the defendant's arrest, 

provided that the defendant could not be 

apprehended because his or her whereabouts were 

unknown and could not be determined by due 

diligence;

(2) any period of time for which the defendant 

expressly waives Rule 600;

(3) such period of delay at any stage of the 

proceedings as results from:

(a) the unavailability of the defendant or the 

defendant's attorney;

(b) any continuance granted at the request of 

the defendant or the defendant's attorney.

Pa.R.Crim.P. 600(C).

Peterson, 19 A.3d at 1134-1135 (footnote omitted).

This Court has also recently reiterated that:

To determine whether dismissal is required under Rule 

600, a court must first calculate the “mechanical run date,” 

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2 We note that a new version of Rule 600 was adopted on October 1, 2012, 

and became effective on July 1, 2013. As Appellant’s Rule 600 motion was 

filed and decided before the effective date of the new version of the rule, we 

will analyze his claim under the prior version of Rule 600.
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which is 365 days after the complaint was filed. Rule 600(C) 

addresses situations where time can be excluded from the 

computation of the deadline. Case law also provides that a court 

must account for any “excludable time” and “excusable delay.” 

Excludable time is delay that is attributable to the defendant or 

his counsel. Excusable delay is delay that occurs as a result of 

circumstances beyond the Commonwealth's control and despite 

its due diligence. 

To be clear, a violation of Rule 600 does not automatically 

entitle a defendant to a discharge. Indeed, 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.” In 

other words, the only occasion requiring dismissal is when the 

Commonwealth fails to commence trial within 365 days of the 

filing of the written complaint, taking into account all excludable 

time and excusable delay. There is no statutory or case law 

authorizing the discharge of a defendant who has not been 

brought to trial within the timing requirements of Rule 

600(A)(2). 

Commonwealth v. Goldman, 70 A.3d 874, 879-880 (Pa. Super. 2013).

Here, Appellant adopts the statement of pertinent dates set forth by 

the trial court in its opinion, which we need not reproduce for purposes of 

this appeal. See Trial Court Opinion (TCO), 7/16/14, at 1-2; Appellant’s 

Brief at 11-12. Instead, we need only note that the parties, and the court, 

agree that the Commonwealth was required to try Appellant within 365 days 

of the October 13, 2011 filing of the criminal complaint. Therefore, the 

‘mechanical run date’ was October 12, 2012.3 Appellant concedes that there 

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3 Appellant incorrectly concludes that the mechanical run date was October 

13, 2012. However, we agree with the trial court and Commonwealth that 

adding 365 days to October 13, 2011, results in a mechanical run date of 

October 12, 2012. See TCO at 4; Commonwealth’s Brief at 10.
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were 207 days of ‘excludable time’ for Rule 600 purposes. Appellant’s Brief 

at 13-14. Thus, according to Appellant’s calculations, the adjusted run date 

was May 7, 2013, making his trial on May 16, 2013, “[nine] days late.” Id. 

at 14. Consequently, Appellant claims that Rule 600 was violated and the 

court should have granted his pretrial motion to dismiss the charges against 

him.

The trial court, however, concluded that there was no violation of Rule 

600. By the court’s calculations, there were 286 days of 

excludable/excusable time, making the adjusted run date July 25, 2013. 

See TCO at 4. In reaching this decision, the trial court excluded, inter alia, 

the time between September 24, 2012 and November 5, 2012. The court 

explained that on September 24, 2012, trial was scheduled to begin and 

both parties were prepared to proceed, “but the court was conducting 

unrelated trials.” Id. Accordingly, Appellant’s trial was rescheduled for 

November 5, 2012. The court reasoned that this “judicial delay” should not 

be charged to the Commonwealth for Rule 600 purposes. Id. 

In response, Appellant argues that the delay from September 24, 

2012, to November 5, 2012, was not excusable because the Commonwealth 

failed to act with due diligence. Appellant emphasizes that the 

Commonwealth did not “attempt to get the case re-listed to another 

courtroom[,] attempt to get an earlier date[,] or make sure that the date 

that was given was the earliest possible date....” Appellant’s Brief at 15. In 

other words, Appellant argues that the Commonwealth was required to 
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attempt to have the trial proceed before another judge, and its failure to do 

so amounted to a lack of due diligence. In support, Appellant relies on 

Commonwealth v. Hawk, 597 A.2d 1141 (Pa. 1991), which he interprets 

as holding that the Commonwealth must take “affirmative steps to bring a 

case to trial[,]” such as looking for another courtroom in which to try the 

case if the assigned judge is unavailable. Appellant’s Brief at 17. 

Appellant’s reliance on Hawk is unconvincing. Indeed, this Court has 

explicitly stated that Hawk is “not clear” regarding “[t]he extent to which 

the Commonwealth must look for other available courtrooms....” 

Commonwealth v. Anderson, 959 A.2d 1248, 1250 (Pa. Super. 2008). In 

Anderson, we noted that in Commonwealth v. Smith, 569 A.2d 337 (Pa. 

1990), “our Supreme Court found no duty for the Commonwealth to seek an 

alternative court” when trial was delayed because of “congestion in the trial 

judge’s calendar.” Anderson, 959 A.2d at 1250. We also emphasized in 

Anderson that “Hawk did not claim to overrule Smith, merely distinguish 

it.” Id. Therefore, it is not clear that Hawk imposes the affirmative duty on 

the Commonwealth to seek out another courtroom, as Appellant claims.4

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4 Moreover, we agree with the Commonwealth that the facts of Hawk are 

distinguishable from the present case. As the Commonwealth explains, in 

Hawk, 

the trial judge was sick for a month and then went on vacation 

for five weeks after recuperating from the illness. During this 

prolonged absence, the Commonwealth took no action to have 

the case listed for trial before another judge. Under those 

(Footnote Continued Next Page)
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What is clear is that this Court has repeatedly cited Hawk for the 

proposition that “the Commonwealth should be held to the requirement that 

it exercise due diligence at all times during the pendency of a case.” 

Commonwealth v. Kearse, 890 A.2d 388, 393 (Pa. Super. 2005) (quoting 

Hawk, 597 A.2d at 1145).5 

(Footnote Continued) _______________________

unique and extreme circumstances, the Supreme Court rejected 

the Commonwealth’s attempt to justify the delay based upon the 

trial judge’s crowded docket. The Court observed that “[e]ven if 

the Commonwealth was found to be duly diligent, the 

Commonwealth failed to prove judicial delay.” Hawk, ... 597 

A.2d at 1145. Thus, the Court in Hawk suggested only that the 

Commonwealth would have some duty to attempt to schedule a 

case before a different judge when the assigned judge is 

unavailable for a lengthy period of time for reasons unrelated to 

a crowded docket, such as illness. Hawk simply did not hold 

that reassignment to another judge is mandated whenever, 

because of a crowded docket, a case cannot be heard within the 

time required by Rule 600. In contrast to Hawk, the delay 

which [Appellant] contends violated Rule 600 here was due to 

the court’s congested docket..., and not an absence of the 

assigned judge because of illness or vacation.

Commonwealth’s Brief at 19-20 (emphasis in original; one internal citation 

omitted).

5 See also Commonwealth v. Claffey, 80 A.3d 780, 786 (Pa. Super. 

2013) (citing Hawk in stating that “[t]he Commonwealth’s duty to be 

diligent exists throughout all stages of a case”); Commonwealth v. 

Bradford, 2 A.3d 628, 632 (Pa. Super. 2010) (relying on Hawk in stating 

that “the Commonwealth’s duty to be diligent exists throughout all stages of 

a case”); Commonwealth v. Preston, 904 A.2d 1, 13 n.5 (Pa. Super. 

2006) (stating that in Hawk, “our Supreme Court ruled that the 

Commonwealth must demonstrate that it exercised due diligence at all times 

during the pendency of a case”).
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“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, among other things, 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. 

Ramos, 936 A.2d at 1102 (citations omitted; emphasis in original). 

Moreover, “[i]t is long-established that judicial delay may serve as a basis 

for extending the period of time within which the Commonwealth may 

commence trial so long as the prosecutor was prepared to commence trial 

prior to the expiration of the mandatory period but the court, because of 

scheduling difficulties or ‘the like,’ was unavailable.” Preston, 904 A.2d at 

14 (citing Commonwealth v. Malgieri, 889 A.2d 604, 607 (Pa. Super. 

2005)). 

In this case, it is undisputed that the Commonwealth was prepared to 

proceed to trial on September 24, 2012, prior to the expiration of the 

mechanical run date on October 12, 2012. The trial did not commence due 

to a court scheduling conflict, and through no fault of the Commonwealth. 

Under these circumstances, we ascertain no abuse of discretion in the trial 

court’s considering as ‘excusable’ the 42-day delay between September 24, 

2012, and November 5, 2012. Accordingly, adding these 42 days to the 207 

excludable days conceded by Appellant results in an adjusted run date of 

June 18, 2013, making Appellant’s trial on May 16, 2013, within the timeframe proscribed by Rule 600. We also point out that on seven other 
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scheduled trial dates after September 24, 2012, the Commonwealth was 

ready to proceed but the case was continued at either Appellant’s request or 

because the court was presiding in another case. See Appellant’s Brief at 

11-12; TCO at 1-2. This record convinces us that the Commonwealth 

exercised due diligence at all times during the pendency of Appellant’s case. 

Hawk, 597 A.2d at 1145. Therefore, the trial court did not abuse its 

discretion in denying Appellant’s motion to dismiss. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2015