J-S26043-17

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

NADIM ZUHAIR JAOUNI

Appellant No. 1361 MDA 2016

Appeal from the Judgment of Sentence July 20, 2016

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0006709-2013

BEFORE: BOWES, J., DUBOW, J., AND FITZGERALD,*J.

CONCURRING MEMORANDUM BY BOWES, J.: FILED OCTOBER 20, 2017

I agree with my learned colleagues that the Commonwealth failed to 

prosecute Appellant in the time frame mandated by Pennsylvania Rule of 

Criminal Procedure 600. I write separately to address the Commonwealth’s 

assertion that the entire period from June 10, 2013, to June 18, 2015 does 

not count for Rule 600 purposes. 

These charges were initiated on June 10, 2013 and therefore governed 

by the former version of Rule 600. We calculate the mechanical run date by 

adding one year to the complaint date, and arrive at an adjusted run date by 

adding periods of excludable or excusable time. See Commonwealth v. 

Ramos, 936 A.2d 1097 (Pa.Super. 2007) (en banc). Appellant concedes 

that the fifty-six day period of time owing to his request to postpone the 
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preliminary hearing was excludable time. I would also hold that the 642-day 

period from September 18, 2013, when Appellant first requested admission 

to the Alternative Rehabilitation Disposition (ARD) program, through June 

18, 2015, was excludable time as Appellant continuously requested delays 

up until that date for ARD and medical reasons.1 Adding these delays to the 

earlier fifty-six days yields an adjusted run date of May 9, 2016, well before 

his actual trial date. 

The Commonwealth maintains that “[A]ny and all delays from the filing 

of the criminal complaint on June 10, 2013, and June 18, 2015 were 

attributable to [Appellant]. This accounts for 739 days.” Commonwealth’s 

brief at 16. A similar claim was recently rejected by our High Court in 

Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017). The dispute in Mills

was whether a 174-day period between the filing of the criminal complaint 

and a status conference should be excluded or included for Rule 600 

purposes. Mills rejected a bright-line rule that the normal judicial 

progression of a case constitutes delay. “[W]e agree with Appellant that 

____________________________________________

1 Appellant claims that only 628 days are properly attributed to him, yet 

calculates the adjusted run date as falling in 2015. He arrives at this date 

by adding 628 days to the date charges were initiated, not the mechanical 

run date. See Appellant’s brief at 13. The Majority correctly notes that the 

actual adjusted run date was in 2016, as Appellant delayed the proceedings 

at his request for almost two years. Since the Commonwealth prevailed at 

the trial court level, I will assume the more favorable calculation of May 9, 

2016, as it does not affect the outcome. 
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time attributable to the normal progression of a case simply is not ‘delay’ for 

purposes of Rule 600.” Id. at 325. As Mills stated, the Commonwealth’s 

position was equivalent to an argument that it has “leeway to proceed, 

without any diligence, to cause up to 365 days of delay in the 

commencement of any trial.” Id. at 324. The Commonwealth’s claim here 

is similar. By asserting that every day from the date the complaint was 

initiated through June 18, 2015 plays no part in our Rule 600 analysis, the 

Commonwealth avers that none of the time constituting the normal 

progression of a case up until that point counts against it. While it is 

undeniable that Appellant caused significant delays, the Commonwealth’s 

calculations are untenable.

Moreover, the Commonwealth asserts that the trial judge properly 

determined that it exercised due diligence from January 2016 through May 

2016 because the toxicologist was unable to testify. Yet the prosecutor 

conceded at the Rule 600 hearing that the case “had never been scheduled, 

so there was no opportunity to find [a new analyst] . . . because it would 

have had to have been scheduled several weeks, if not a month or so in 

advance[.]” N.T. Rule 600, 7/12/16, at 8. The trial court adopted that 

position: “We agree it couldn’t have been scheduled when the lab tech was 

unavailable.” Id. at 7. This was an abuse of discretion. The trial court’s 

analysis erroneously applied a form of harmless error by holding that 

Appellant’s trial would have been postponed had the Commonwealth 
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actually scheduled the case. That type of analysis is improper, since the 

Commonwealth bears the burden of establishing it exercised due diligence. 

It hardly comports with Rule 600 for the Commonwealth to claim its due 

diligence would not have mattered. 

Finally, I recognize that the trial court’s ruling emphasized that this 

matter was reassigned to several judges, resulting in judicial delay not 

attributable to the Commonwealth. Mills was likewise sensitive to this 

concern, noting that “where 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.” Mills, supra at 325. 

However, nothing in the record indicates that the Commonwealth was ready 

for trial. Herein, the docket and certified record reveals that the order of

June 18, 2015, which indicated that the parties were ready for a bench trial, 

is directly followed by Appellant’s July 12, 2016 motion to dismiss.2 Thus, I 

agree with the Majority that the Commonwealth failed to establish that it 

kept track of its Rule 600 obligations. See Commonwealth v. Browne, 

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2

 Mills does not answer whether the Commonwealth is obligated to ask an 

unavailable trial judge to transfer the case to another courtroom with a less 

clogged docket when a Rule 600 deadline is looming. I do not suggest that 

the Commonwealth bore that burden in this case, yet it appears that this 

case would not have proceeded at all but for Appellant’s motion seeking 

dismissal. Certainly, a motion seeking transfer to another courtroom would 

be beneficial in circumstances such as these, as our task would have been 

greatly aided by record entries made at the times in question. 
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584 A.2d 902, 906 (Pa. 1990) (“We hold that due diligence likewise imposes 

on the government the duty to employ simple recordkeeping systems in 

circumstances such as this.”). We cannot simply assume that the 

courtrooms were unavailable for some of these time periods. 

In this regard, Justice Wecht, joined by Justices Todd and Donohue, 

issued a concurring opinion in Mills explaining his view that the 

Commonwealth must first show due diligence before judicial delay is 

relevant.

[T]he Majority astutely observes that trial courts have the 

discretion to differentiate between the time that passes during 

the normal progress of a criminal case and the time that elapses 

when the court's calendar simply cannot accommodate a trial by 

the relevant date. My concern is that our trial courts too often 

make these judgments without first considering the 

Commonwealth's due diligence obligation.

Characterization and delineation of the contested time periods is 

not always an easy task. Difficulty can arise, as it did in this 

case, when both “judicial delay” and the Commonwealth's due 

diligence obligation appear as options for the court. However, 

these two options are not equal, to be selected at the court's 

discretion. Nor can “judicial delay” be substituted for due 

diligence. Rather, due diligence must be proven by the 

Commonwealth, and assessed by the court, before “judicial 

delay” becomes a consideration in the time calculation for Rule 

600.

Id. at 326 (Wecht, J., concurring). That issue was present in this case. The 

trial court selected judicial delay as an option to excuse the Rule 600 
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violation, but the Commonwealth failed to prove its due diligence.3 Tellingly, 

the Commonwealth managed, after over a year of delay, to proceed to trial 

just eight days after Appellant filed the motion to dismiss. By all 

appearances, the only reason this case proceeded to trial was the fact that 

Appellant sought dismissal, with the Commonwealth offering ex post facto

justifications for why the case could not have proceeded at those earlier 

times. That hardly constitutes due diligence. Hence, the Commonwealth 

failed to meet its burden and the order denying Appellant’s motion must be 

reversed. 

Judge Dubow joins this concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/20/2017

____________________________________________

3

 The trial judge began the hearing by noting, “I get these motions five 

minutes before I come on the bench and somehow I am supposed to digest 

the calendars for several years and come to some conclusion.” N.T. Rule 

600, 7/12/16, at 2. Thus, the trial court’s finding of fact that the other trial 

judges were unavailable was supported by speculation, not evidence. 
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