J-S71016-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellant 

v. 

TYSHAWN PLOWDEN 

 Appellee No. 143 WDA 2015 

Appeal from the Order January 6, 2015 

In the Court of Common Pleas of Cambria County 

Criminal Division at No(s): CP-11-CR-0002528-2013 

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J. 

DISSENTING MEMORANDUM BY OTT, J.: FILED APRIL 08, 2016 

I respectfully disagree with the majority’s decision that affirms the 

order of the trial court granting Plowden’s Rule 600 motion to dismiss. 

Specifically, I disagree with the majority’s conclusion that the 

Commonwealth failed to demonstrate excusable delay to extend the Rule 

600 run date. In my view, because the record reflects the Commonwealth 

exercised due diligence in pursuing Plowden’s return under the Interstate 

Agreement on Detainers (“IAD”), 42 Pa.C.S. § 9101 et seq., and the delay in 

transferring Plowden from New York was occasioned by circumstances 

beyond the control of the Commonwealth, I would conclude that the entire 

period of the IAD process, commencing October 9, 2014, is excusable delay. 

Therefore, I dissent. 
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The record shows in June of 2014, while Plowden was in prison in 

Cambria County, Plowden requested and was granted release on nominal 

bail. N.T., 1/5/2015, at 11–12. Plowden would have been free to leave the 

Cambria County Jail, but extradition proceedings had been instituted by New 

York authorities. Id. at 12. The Commonwealth admitted it should have 

known there were pending criminal charges against Plowden before 

Plowden’s July 3, 2014, extradition hearing. N.T., 1/5/2015, at 29–30, 39. 

See also id. at 12–13. However, the Commonwealth took no steps to stay 

Plowden’s extradition to New York. Id. at 13. Thereafter, the 

Commonwealth, upon realizing it would be necessary to bring Plowden back 

for trial, immediately commenced communication with New York authorities 

to effectuate Plowden’s return to Pennsylvania. Id. at 14–15. 

I agree with the trial court that the Commonwealth waited until 

October 9, 2014 to formally request Plowden’s return from New York. As 

such, the time from July 3, 2014 to October 9, 2014 should run against the 

Commonwealth. However, after October 9, 2014, the Commonwealth 

worked steadily with New York authorities for Plowden’s transfer. 

Detective Lia DeMarco of the Cambria County District Attorney’s Office 

testified her initial telephone contact with New York was on July 3, 2014. 

Id. at 15. She further detailed the numerous communications recorded in 

her log, admitted as Commonwealth Exhibit 1, both before and after October 

9, 2014, on which date she formally started the process under the IAD, 42 
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Pa.C.S. § 9101 et seq. Id. at 15–16, 40. Detective DeMarco’s log and her 

testimony reveal her persistent, ongoing efforts to effectuate Plowden’s 

transfer from New York. See Commonwealth Exhibit 1.1 

Following Detective DeMarco’s initiation of the IAD process on October 

9, 2014, New York scheduled a hearing for December 10, 2014. Id. at 51–

52. However, “New York [authorities] got their signals crossed,” and instead 

of holding an IAD hearing, there was an extradition hearing. Id. at 21. On 

December 11, 2014, Detective DeMarco learned Plowden had refused to 

waive extradition, and she would need to obtain a governor’s warrant 

pursuant to the Uniform Criminal Extradition Act (UCEA), 42 Pa.C.S. §§ 

9121-9148. Id. at 41. She initiated the paperwork for the governor’s 

warrant on December 12, 2014. Id. 

Despite the governor’s warrant, testimony further revealed that 

transfer was effectuated pursuant to the IAD. Id. at 42. Detective DeMarco 

testified that on December 22, 2014, and December 29, 2014, the Cambria 

County District Attorney’s Office overnighted IAD forms to Pennsylvania 

authorities for transmission to New York. Id. at 42–43. Detective DeMarco 

further testified she did not know when Cambria County was informed that 

Plowden was available to be picked up from New York authorities because 

____________________________________________ 

1

 Commonwealth Exhibit 1 reflects Detective DeMarco’s contacts with New 

York authorities after October 9, 2014, on the following dates: 10/17/2014, 

10/20/2014, 10/23/2014, 10/29/2014, 11/13/2014, 11/20/2014, 

12/10/2014, 12/11/2014, 12/12/2014. 
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she was not there when the call came to confirm the transfer. Id. at 53. 

She had gone on maternity leave on December 19, 2014. Id. at 19. She 

testified that the call from New York to transfer Plowden came “after the 

19th.” Id. at 54. She confirmed Cambria County deputies would pick up 

Plowden “pursuant to the IAD based upon the materials that were sent out 

on December the 29th [2014].” Id. at 43. Commonwealth counsel 

represented Plowden was scheduled to be picked up in New York on January 

7, 2015. Id. at 7. 

Excusable delay is delay that occurs as a result of circumstances 

beyond the Commonwealth’s control and despite its due diligence. 

Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. 2007). The 

Pennsylvania Supreme Court has reiterated that “to act with due diligence, 

“prosecutors must do everything reasonable within their power to see that 

the case is tried on time.” Commonwealth v. Bradford, 46 A.3d 693, 

703–704 (Pa. 2012), citing Commonwealth v. Browne, 584 A.2d 902, 905 

(Pa. 1990) (internal citation omitted).

Here, the Commonwealth initiated the formal IAD request on October 

9, 2014, exercised due diligence throughout the IAD process, and had no 

control over the delay by New York authorities in returning Plowden. 

Accordingly, on this record, I would reverse the order of the trial court 

dismissing the charges against Plowden with prejudice, as I would find no 

violation of Rule 600. See e.g., Bradford, supra (dismissal not appropriate 
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under Rule 600 when the Commonwealth acted with due diligence in relying 

upon the judicial system to transfer documents in accordance with the Rules 

of Criminal Procedure); see also Commonwealth v. Kubin, 637 A.2d 

1025, 1027 (Pa. Super. 1994) (“[W]e recognize the Commonwealth cannot 

force another jurisdiction to act[.]”). 

Accordingly, very respectfully, I dissent.