J-S18029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CLIFF CROSBY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1401 MDA 2021

Appeal from the Judgment of Sentence Entered September 2, 2021

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0000577-2021

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: SEPTEMBER 9, 2022

Cliff Crosby appeals the judgment of sentence following his jury trial 

convictions for possession with intent to deliver (“PWID”) and criminal use of 

communication facility.1 Crosby alleges that the trial court erred in denying 

his motion to dismiss pursuant to Rule 600 of the Pennsylvania Rules of 

Criminal Procedure and his motion to dismiss for a violation of his 

constitutional right to a speedy trial. We affirm on the basis of the opinion of 

the Honorable Scott Arthur Evans. 

On July 25, 2019, the Commonwealth filed a criminal complaint against 

Crosby. The court held a preliminary hearing on February 11, 2021. It held an

arraignment hearing on February 23, 2021. The Commonwealth originally 

scheduled Crosby’s trial for March 8, 2021, but it was continued to April 12, 

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1 35 P.S. § 780–113(a)(30) and 18 Pa.C.S.A. § 7512, respectively.
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due to a lack of availability of a courtroom to hold the trial. On March 26, 

Crosby filed a motion to dismiss pursuant to Rule 600. On April 9, the trial 

was continued to May 17. The court held a hearing on the motion on April 23. 

At the hearing, the parties agreed that the periods of March 18, 2020,

through August 31, 2020, and December 7, 2020, through March 7, 2021, 

were excludable due to an order providing that these periods “shall” be 

excluded from the calculation of Rule 600(C) due to the COVID-19 pandemic. 

See N.T., Rule 600 Motion, 4/23/21, at 4; Declarations dated 3/18/20,

4/1/20, 5/29/20; 6/2/20; 12/11/20.

The Commonwealth presented testimony from Kurt Zitsch, the affiant 

of the criminal complaint. N.T., Rule 600 Motion, at 4-5. Zitsch testified that

after filing the complaint, the only measure he took to find Crosby was 

“forward[ing] a copy of the complaint and warrant to Sergeant Meik” so that 

he was aware of the arrest warrant for Crosby. Id. at 5. He testified that on 

November 5, 2020, the warrant control unit informed him that Crosby had 

been incarcerated since July 2020. Id. at 6. Upon receiving this information, 

Zitsch “contacted the Magisterial District Judge’s Pianka’s office and made 

them aware to move forward to have him arraigned and move forward with a 

preliminary hearing.” Id.

During argument, the Commonwealth contended that Zitsch’s contact 

with the court upon learning of Crosby’s incarcerated status “constitutes an 

action to bring the case to trial[.]” Id. at 14. The Commonwealth also stated 

that it listed the case for trial during the March trial term. However, the case
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was listed as a backup and ultimately had to be given a new date “because 

jury selection had already taken place for the March trial term there." Id.

Defense counsel argued that the Commonwealth did not act with due diligence 

to locate Crosby after filing the criminal complaint. Id. at 10-11. 

The court denied the motion on April 26. It concluded that the 

Commonwealth did not exercise due diligence between the filing of the 

complaint and November 5, when it learned that Crosby was incarcerated. 

See Memorandum Opinion and Order of Court, filed 4/26/21, at 4. However, 

it determined that the Commonwealth operated with due diligence between 

the periods of November 5 through December 7 and March 8 through March 

26, amounting to 50 days of excludable time. Id. It also concluded that the 

periods of March 18, 2020, through August 31, 2020, and December 7, 2020,

through March 7, 2021, were also excludable due to the court’s order 

suspending Rule 600 because of the COVID-19 pandemic. Id. at 6. 

On May 13, 2021, Crosby requested a continuance for trial until June 

21. On May 27, Crosby filed a motion to dismiss arguing that his right to a 

speedy trial under state and federal constitutions had been violated. The court 

denied the motion on June 2. Crosby proceeded to trial on June 21. The jury 

found him guilty of two counts each of PWID and criminal use of 

communication facility. The trial court sentenced Crosby to an aggregate term 

of six to 20 years’ incarceration. Crosby filed a post-sentence motion which 

the trial court denied. This timely appeal followed. 

Crosby presents two issues for our review:
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I. Did not the court err in denying [Crosby’s] motion to 

dismiss pursuant to Pa.R.Crim.P. 600?

II. Did not the court err in denying [Crosby’s] motion to 

dismiss based on a violation of his speedy trial rights 

under the United States and Pennsylvania 

Constitutions?

Crosby’s Br. at 5 (suggested answers omitted). 

Crosby’s first claim challenges the court’s denial of his Rule 600 motion. 

He maintains that the trial court erred in concluding that 50 days were 

excludable. He argues that the periods from November 5, 2020 through 

December 7, 2020, and from March 8, 2021 through March 26, 2021, were 

not excludable. For the period of November through December, he alleges 

that the Commonwealth provides no explanation for why it should be 

excluded, and the time instead should be characterized as the normal 

progression of the case. Regarding the period from March 8 through March 

26, he maintains that though the case was listed for trial on March 8, the 

Commonwealth could not go to trial on that date because another case was 

listed for trial in the courtroom. He states that the Commonwealth did not 

explain why that case was given priority over his.

Our standard of review of a trial court’s decision of a defendant’s Rule 

600 motion is that of an abuse of discretion. See Commonwealth v. Leaner, 

202 A.3d 749, 765-66 (Pa.Super. 2019). Our scope of review is limited to the 

evidence presented at the Rule 600 motion hearing and the court’s findings of 

fact. See Commonwealth v. Watson, 140 A.3d 696, 698 (Pa.Super. 2016).
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We “view the facts in the light most favorable to the prevailing party.” Id.

(citation omitted). To determine the proper calculation of time, a court should 

determine the mechanical run date, determine any excludable time, and then 

add the amount of excludable time to the mechanical run date to determine 

the adjusted run date. See Commonwealth v. Wendel, 165 A.3d 952, 956 

(Pa.Super. 2017).

Rule 600 provides that when a criminal complaint has been filed against 

a defendant, the trial for that defendant must commence within 365 days. 

See Pa.R.Crim.P. 600(A)(2)(a). To determine if the trial began within the 

prescribed number of days, “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.” Id. at 600(C)(1). Rule 600 also provides that other 

forms of delay may be excluded, including time attributable to the court and 

delay that occurs despite the Commonwealth’s exercise of due diligence. Id.

at 600(C)(1)-(2). 

Determining whether the Commonwealth exercised due diligence is a 

fact-specific, case-by-case, inquiry, that “does not require perfect vigilance 

and punctilious care, but merely a showing the Commonwealth has put forth 

a reasonable effort.” Id. at 600, cmt. (citations omitted). Furthermore, “the 

Commonwealth is required to demonstrate that it acted with due diligence 

during a time period before that period can be deemed excludable.” 

Commonwealth v. Harth, 252 A.3d 600, 617 (Pa. 2021) (emphasis 
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omitted). “[W]here a trial-ready prosecutor must wait several months due to 

a court calendar, the time should be treated as ‘delay’ for which the 

Commonwealth is not accountable.” Commonwealth v. Mills, 162 A.3d 323, 

325 (Pa. 2017) (citations omitted).

Here, the trial court determined that the contested days of November 

5, 2020, through December 7, 2020, were excludable because the 

Commonwealth had acted with due diligence. The court determined that when

the Commonwealth learned of Crosby’s incarcerated status, it immediately 

moved to have his case listed for an arraignment and a preliminary hearing. 

See Rule 1925(a) Opinion (“1925(a) Op.”), filed 11/30/21, at 5. Thus, the

trial court concluded that “the Commonwealth had done precisely what it 

should have done. It immediately advised the [c]ourt and requested the 

hearings to be scheduled.” Id. at 6.

Regarding the time between March 8 and March 26, the trial court 

determined that the time was excludable as well. It determined that the 

Commonwealth set trial for March 8, “the next scheduled jury trial term.” Id.

at 2. It noted that the Commonwealth listed the case for trial despite the 

backlog of cases with the court, “in the hope that it could proceed should the 

scheduled trials not.” Id. at 6. When it was not possible to have the trial in 

March because of an already listed case, “the case was moved to the next trial 

term in April.” Id. The court determined that the efforts of the Commonwealth 

amounted to due diligence and that it did all that it could following November 

5 to bring Crosby to trial. See id. The court also noted that Crosby failed to 
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argue that the Commonwealth did not exercise due diligence during these 

periods and instead limited his argument to the period between the complaint 

and November 5. See id.

After reviewing the briefs, the trial court record, the relevant case law, 

and the trial court’s well-reasoned opinion, we affirm on the basis of the trial 

court opinion. See id. at 4-8. The court’s determination of the 

Commonwealth’s due diligence is supported by the record and the 

Commonwealth demonstrated its due diligence before the court’s 

determination of any excludable time. See Harth, 252 A.3d at 617.

Crosby’s remaining issue challenges the court’s denial of his motion to 

dismiss for violation of his constitutional right to a speedy trial. He maintains 

the delay in bringing his case to trial “was caused by the Commonwealth’s 

failure to expend any effort whatsoever in ascertaining Mr. Crosby’s 

whereabouts.” Crosby’s Br. at 25. He maintains that but for the information 

that was eventually given to Zitsch on November 5, “the Commonwealth’s 

inability to locate Mr. Crosby’s whereabouts could have been indefinite.” Id. 

We review a court’s determination of a speedy trial violation for an abuse 

of discretion. See Commonwealth v. Miskovitch, 64 A.3d 672, 677 

(Pa.Super. 2013). “[O]ur scope of review is limited to the trial court’s findings 

and the evidence on the record, viewed in the light most favorable to the 

prevailing party.” Id. (citation and quotation omitted). 

State and federal constitutions provide defendants a right to a speedy 

trial. See Commonwealth v. DeBlase, 665 A.2d 427, 432 (Pa. 1995). In 
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Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court 

provided four factors to consider when faced with the question of whether a 

defendant’s speedy trial rights had been violated. These factors are: “[l]ength 

of delay, the reason for the delay, the defendant’s assertion of his right, and 

prejudice to the defendant.” Commonwealth v. Jones, 299 A.2d 288, 291 

(Pa. 1973) (quoting Barker, 407 U.S at 530).

Here, in its analysis of the Barker factors, the trial court determined 

that Crosby’s right to a speedy trial had not been violated. The court found

that the length of delay in bringing Crosby’s case to trial was 22 months. See

1925(a) Op. at 9. It stated that the delay was due to Zitsch’s failure to locate 

him after filing the criminal complaint. See id. at 10. Looking to the next 

factor, the court concluded that Crosby had not asserted his constitutional 

right to a speedy trial until after the trial court denied his Rule 600 motion. 

See id. at 10-11. Regarding prejudice, the court found that Crosby had not 

suffered any. It also stated that Crosby’s claims of prejudice were speculative. 

See id. at 12-13. The court, therefore, concluded that “considering the 

relatively short delay compared to the one found insufficient in Barker and 

the absence of any actual prejudice,” Crosby’s claim was meritless. Id. at 13. 

After reviewing the briefs, the trial court record, the relevant case law, 

and the trial court's well-reasoned opinion, we affirm on the basis of the trial 

court opinion. See id. at 9-13. The court conducted a thorough analysis of the 

Barker factors and its conclusions are supported by the record. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/09/2022