Com. v. Mackey, A. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALEXIS MACKEY : No. 423 EDA 2021
Appeal from the Order Entered February 5, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002556-2019
BEFORE: PANELLA, P.J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 18, 2022
The Commonwealth of Pennsylvania appeals from the order dismissing
the charges against Alexis Mackey pursuant to Pennsylvania Rule of Criminal
Procedure 600. The Commonwealth alleges that the trial court abused its
discretion when it found that it had not acted with due diligence in prosecuting
the case against Mackey. We vacate and remand for further proceedings.
On February 1, 2019, Mackey attacked her mother’s boyfriend, James
English, with a metal pneumatic door closing mechanism. Subsequently, that
same night, Mackey returned with her brother, Raymond Thomas Hobbs, Jr.,
and three other men. The group questioned English, repeatedly punched him,
and then took his keys. English suffered a broken nose and fractured ribs from
the attacks. On February 13, 2019, the Commonwealth filed a criminal
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complaint charging Mackey with aggravated assault, simple assault, theft by
unlawful taking, and receiving stolen property.
The trial court held a preliminary hearing on March 8, 2019, during
which the Commonwealth discovered English required Fifth Amendment
counsel before testifying. Accordingly, the trial court continued the hearing,
directed that English be appointed counsel, and rescheduled the hearing for
April 9, 2019. At the rescheduled hearing, English testified to the above facts,
and identified Mackey and Hobbs, for the first time, as his attackers.
Consequently, the Commonwealth amended the criminal complaint against
Mackey to include a charge of conspiracy to commit aggravated assault.
Following the hearing, the trial court held Mackey for trial on all charges, and
on April 23, 2019, Mackey was formally arraigned, and the docket indicated
that discovery was completed. Thereafter, on May 14, 2019, the trial court
held a pre-trial conference, at which Mackey requested additional discovery in
the form of English’s medical records, the police 229 form, and English’s FBI
criminal extract form;1 the trial court scheduled trial for July 26, 2019.2
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1The trial court ruled that the police 229 form and the FBI criminal extract
were mandatory discovery. See Trial Court Opinion, 4/20/21, at 2. While the
docket does not indicate this discovery was mandatory, the Commonwealth
does not dispute the trial court’s characterization.
2 The docket indicates that the trial court judge at this time, the Honorable
Robert P. Coleman, marked the time “excludable.” Mackey later disputed that
this period was excludable. Judge Coleman ultimately granted Mackey’s
(Footnote Continued Next Page)
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On that date, the Commonwealth sought a continuance to consolidate
Mackey’s case with the prosecution of two other individuals, 3 who were
arrested and charged with crimes arising out of the attack on English. The
Commonwealth had also failed to pass the FBI extract and English’s medical
records. The trial court rescheduled the trial for October 18, 2019, at which
time the Commonwealth was not ready to proceed due to its failure to provide
the FBI extract and English’s medical records to the defense. And so the trial
court continued the trial until January 24, 2020.4 On that date, one of the
codefendants’ attorneys was not available. As a result, rather than sever
Mackey’s trial from those of her codefendants, the Commonwealth requested
a continuance. The case was next listed for trial on May 19, 2020. However,
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motion to correct the docket entry and ruled that the disputed 73-day period
“is NOT Time Ruled Excludable.”
3 The record does not identify the charged individuals.
4Notably, the docket does not state that there was any outstanding discovery
on this date. See Docket, 1/24/20; see also N.T. Rule 600 Hearing, 12/9/20,
at 6 (wherein the Commonwealth states that discovery was complete on
January 24, 2020). Per an email exchange between Mackey’s attorney and the
Commonwealth on January 22, 2020, Mackey’s attorney acknowledged receipt
of English’s medical records and the “483” (an investigation interview record
utilized by the Philadelphia police), and further stated that she had
“everything.”
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on March 16, 2020, the Pennsylvania Supreme Court entered an order
declaring a statewide judicial emergency due to the COVID-19 pandemic.5
The trial court relisted Mackey’s case for August 14, 2020.6 On that date,
the trial court was closed due to the ongoing pandemic; trial was rescheduled
for December 4, 2020. However, on December 2, 2020, Mackey filed a motion
to dismiss her charges pursuant to Rule 600. The Commonwealth filed an
answer. The trial court held a hearing on the motion, noting that the parties
focused primarily upon three periods of delay and whether they were
attributable to the Commonwealth: the 32-day period between the preliminary
hearings on March 8, 2019, and April 9, 2019; the 73-day period between the
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5 The Supreme Court further ordered that, as of March 19, 2020,
Rule of Criminal Procedure 600(C) is hereby SUSPENDED in all
judicial districts during the period of the statewide judicial
emergency. The purport of this directive is that the time period
of the statewide judicial emergency SHALL BE EXCLUDED from
the time calculation under Rule 600(C). Nothing in this Order,
however, or its local implementation, shall affect a criminal
defendant’s right to a speedy trial under the United States and
Pennsylvania Constitutions - albeit that the circumstances giving
rise to this Order and the suspension may be relevant to the
constitutional analysis.
In re Gen. Statewide Jud. Emergency, 228 A.3d 1283, 1287 (Pa. 2020).
The suspension of Rule 600 was subsequently extended to June 1, 2020. See
In re General Statewide Jud. Emergency, 230 A.3d 1015 (Pa. 2020)
(extending the Rule 600 suspension until June 1, 2020); see also In re
General Statewide Judicial Emergency, 234 A.3d 408 (Pa. 2020)
(declaring that the Rule 600 suspension shall end on June 1, 2020).
6The docket entry on August 14, 2020, also stated that the “[c]omplaining
witness FBI extract” was outstanding.
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pretrial conference on May 14, 2019, and the first trial listing on July 26, 2019;
and the 52-day period between the third trial listing on January 25, 2020, and
the Supreme Court’s Covid-19 emergency order on March 16, 2020.
The trial court found that the Commonwealth was not duly diligent in
ascertaining English’s need for Fifth Amendment counsel before the first
preliminary hearing; thus, the 32-day period was included in the Rule 600
calculation. The trial court further found that the Commonwealth conceded
that the 73-day period was included in the Rule 600 calculation. Finally, the
trial court ruled that the 52-day period between the January 24, 2020 trial
listing and the March 16, 2020 order declaring the Covid-19 judicial
emergency was also includable because the Commonwealth chose not to sever
the cases in light of the unavailability of codefendant’s counsel. Specifically,
the trial court highlighted that the Commonwealth initiated Mackey’s case
without any codefendants, and the Commonwealth’s choice to consolidate
Mackey’s older case with two newer cases put it on notice that a Rule 600
violation may occur. Finding that Mackey’s run date was February 13, 2020,
and that the Commonwealth did not exercise due diligence in bringing Mackey
to trial in a timely manner, the trial court granted her Rule 600 motion and
discharged her.7 This appeal followed.
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7The trial court noted that the Commonwealth was not ready to proceed 397
days after the complaint was filed, but also added that the pandemic shutdown
had added another 400 days to the adjusted run date calculation. While the
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On appeal, the Commonwealth raises the following question for our
review:
Did the lower court abuse its discretion by dismissing charges
pursuant to Rule 600, where the Commonwealth was ready for
trial before the initial run date, where trial would have begun
before the run date but for the unavailability of a codefendant’s
counsel, and where the Commonwealth was not required to sever
the cases to comply with Rule 600?
Brief for the Commonwealth at 4.
In reviewing a trial court’s decision in a Rule 600 case,
an appellate court will reverse only if the trial court abused its
discretion. 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[,] discretion is
abused. Our scope of review is limited to the record evidence from
the Rule 600 hearing and the findings of the [trial] court, viewed
in the light most favorable to the prevailing party.
Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012) (citations and
quotation marks omitted).
The Commonwealth contends that the trial court abused its discretion
in granting Mackey’s Rule 600 motion and discharging her. See Brief for the
Commonwealth at 11, 21. Initially, the Commonwealth argues that, because
it was ready for trial before the initial run date expired, it only must prove
“that it acted with due diligence at the last listing before the amended run
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trial court stated that the delay caused by the pandemic is not attributable to
the Commonwealth, see Trial Court Opinion, 4/20/21, at 3 n.7, it nevertheless
found that its ruling gave meaning to Rule 600’s codification to Mackey’s right
to a speedy trial.
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date and any listing thereafter to bring the case to trial.” Id. at 16 (quoting
Commonwealth v. Mines, 797 A.2d 963, 965 (Pa. Super. 2002)); see also
Commonwealth’s Brief at 20 (contending that “Pennsylvania courts have never
interpreted Rule 600 to require that the Commonwealth prove due diligence
for each and every listing, or that a Rule 600 motion is properly granted where
the Commonwealth is unprepared for a single pre-trial listing.”). In reviewing
the last listing – the trial date on January 24, 2020 – the Commonwealth
asserts that it was prepared to try all three codefendants before the run date
expired, and the trial was delayed only because counsel for a codefendant was
unavailable at that listing and the closure of the courts due to the COVID-19
pandemic. See id. at 11, 13-15, 17, 21. The Commonwealth claims that the
trial court’s ruling that it had to sever Mackey’s case from her codefendants’
cases to avoid violating Rule 600 was legally erroneous, highlighting that joint
trials are favored in criminal conspiracy cases. See id. at 11, 13-14.
The Commonwealth also argues that if all of the delays must be
addressed, the 73-day period between the May 14, 2019 pre-trial conference,
and the July 26, 2019 trial listing should not have been attributed to the
Commonwealth because the period was part of the normal progression of the
case. See id. at 18-19. The Commonwealth claims that the next date after
the discovery requests was the first trial date, and that no matter how speedily
it acted in responding to Mackey’s discovery requests, the case would not have
received an earlier trial date. See id. at 19. The Commonwealth further claims
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that it did not concede, and the trial court did not rule, that this period is
attributable to the Commonwealth. See id. at 18. Finally, the Commonwealth
asserts that the 32 days between the preliminary hearings should be excused
because that continuance was granted by the trial court’s own motion to
appoint English’s Fifth Amendment counsel, whose availability was outside of
the Commonwealth’s control. See id. at 19-20.
Pertinently, Rule 600 provides that “[t]rial in a court case in which a
written complaint is filed against the defendant shall commence within 365
days from the date on which the complaint is filed.” Pa.R.Crim.P.
600(A)(2)(a). Further, “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,” while “[a]ny other periods of delay shall be excluded
from the computation.” Pa.R.Crim.P. 600(C)(1);8 see also Pa.R.Crim.P. 600,
cmt. (“If the delay occurred as the result of circumstances beyond the
Commonwealth’s control and despite its due diligence, the time is excluded”).
“[T]he Commonwealth is required to demonstrate that it acted with due
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8 In 2012, the Pennsylvania Legislature enacted a new Rule 600, effective as
of July 1, 2013. The general dictates of new Rule 600 remained the same as
they were prior to adoption, but the prior distinctions between excludable time
and excusable delay were abandoned for streamlined review of
Commonwealth’s due diligence, with a failure to exercise due diligence being
considered “includable time.” Commonwealth v. Wiggins, 248 A.3d 1285,
1289 (Pa. Super. 2021).
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diligence during a time period before that period can be deemed excludable.”
Commonwealth v. Harth, 252 A.3d 600, 617 (Pa. 2021).
“Due diligence 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.” Commonwealth v.
Selenski, 994 A.2d 1083, 1089 (Pa. 2010). Due diligence must be
demonstrated by a preponderance of the evidence. See Bradford, 46 A.3d at
701. Further, a defendant who has not been brought to trial within the time
specified in Rule 600(A) may, at any time prior to trial, “file a written motion
requesting that the charges be dismissed with prejudice on the ground that
[the] rule has been violated.” Pa.R.Crim.P. 600(D)(1). “If the trial court
determines that the Commonwealth violated Rule 600, it shall dismiss the
charges and discharge the defendant.” Harth, 252 A.3d at 615.
Preliminarily, we reject the Commonwealth’s claim that we need only
review the last listing prior to the run date to determine whether it exercised
due diligence. The Commonwealth’s reliance on Mines in this regard is
misplaced, as, unlike here, the only disputed listings in the Mines case were
the last two prior to the expiration of the run date. More importantly, this
Court previously held that the notion in Mines that the Commonwealth only
had to prove that it acted with due diligence at the last listing before the run
date and thereafter was previously overruled by our Supreme Court
in Commonwealth v. Hawk, 597 A.2d 1141, 1145 (Pa. 1991) (“the
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Commonwealth should be held to the requirement that it exercise due
diligence at all times during the pendency of a case”). See Commonwealth
v. Kearse, 890 A.2d 388, 393 (Pa. Super. 2005).
Recently, our Supreme Court reaffirmed that Rule 600 “expressly calls
upon a trial court to assess the Commonwealth’s due diligence throughout the
life of a case, when faced with a claim that the Commonwealth violated a
defendant’s speedy trial rights.” Harth, 252 A.3d at 617; see also
Pa.R.Crim.P. 600(C)(1) (“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.”) (emphasis added). To summarize, in determining
whether Rule 600 requires dismissal of charges against a defendant, the
courts of this Commonwealth must first determine the mechanical run date,
and then determine whether the Commonwealth exercised due diligence
during any periods of delay to establish that the period is either includable or
excludable under Rule 600. We subsequently add any excludable time to the
mechanical run date to arrive at an adjusted run date.
Here, the mechanical run date — 365 days from the date of the filing of
the complaint — was February 13, 2020. Next, we must address each of the
three time periods in question to determine whether the Commonwealth
exercised due diligence in bringing the case to trial. Regarding the 32-day
period between the preliminary hearings caused by the failure to have Fifth
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Amendment counsel for English, the trial court found that the Commonwealth
“had the responsibility to know the substance of its own witness’s testimony
and therefore it should have been foreseen that its witness required
consultation with Fifth Amendment Counsel prior to testifying in [the]
Commonwealth’s case-in-chief.” Trial Court Opinion, 4/20/21, at 9. We agree
with the trial court’s analysis in this regard, concluding that the
Commonwealth did not adequately prepare English or ensure he was ready to
testify on the scheduled date. As a result, the Commonwealth failed to
exercise due diligence and the trial court did not abuse its discretion in finding
that the 32-day period is includable in the Rule 600 calculations. See
Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (holding that the
Commonwealth was not prepared for trial during the period at issue, and that
the trial court properly included that time in its Rule 600 calculation).
Next, the Commonwealth did not exercise due diligence during the 73-
day period between the pretrial conference on May 14, 2019, and the first trial
listing on July 26, 2019. While Mackey sought additional discovery on May 14,
2019, after discovery had purportedly concluded, the Commonwealth had
failed to provide mandatory discovery, including the FBI criminal extract. We
cannot fault the trial court for finding that such a failure constituted a lack of
due diligence, and accordingly, the 73-day period is also includable against
the Commonwealth under Rule 600. See Harth, 252 A.3d at 621 (concluding
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that the Commonwealth’s failure to fulfill its discovery obligations constitutes
a lack of due diligence).
Finally, we conclude that the 52-day period between the date of trial,
January 24, 2020, and the rescheduled trial date during the Covid-19
emergency, March 16, 2020, was excludable from the Rule 600 calculations.
It is well settled that periods of delay caused by a codefendant, where the
Commonwealth is prepared for trial, are not counted against the
Commonwealth for purposes of Rule 600. See Commonwealth v. Hill, 736
A.2d 578, 592 (Pa. 1999); Commonwealth v. Jackson, 765 A.2d 389, 395
(Pa. Super. 2000). Further, “severance is not required of the Commonwealth
when it faces a possible Rule 600 violation, and the trial court should not have
factored the refusal to sever in its Rule 600 analysis.” Commonwealth v.
Robbins, 900 A.2d 413, 417 (Pa. Super. 2006).
Here, the Commonwealth was ready for trial for all three codefendants
on January 24, 2020, and the only thing stopping the trial was the
unavailability of codefendant’s counsel. Although the Commonwealth did not
formally announce its plan to consolidate Mackay’s case with those of her
codefendants until July 26, 2019, well after the Commonwealth charged
Mackey, we cannot conclude that this fact alone equates to a lack of due
diligence. Indeed, the record reflects that the Commonwealth was ready for
trial on January 24, 2020. Additionally, it is within the Commonwealth’s
prerogative to not sever the cases, and there is no authority that required it
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to do so to prove due diligence under Rule 600. See Kearse, 890 A.2d at 394-
95 (concluding that the Commonwealth is not required to sever cases when
faced with a possible Rule 600 violation, as a prophylactic application of the
rule is not in the interest of justice and the rule must account for society’s
interest in the effective administration of justice).9 Therefore, because the
Commonwealth exercised due diligence, the delay occurred as the result of
circumstances beyond the Commonwealth’s control, and the trial court
rescheduled trial during the Covid-19 shutdown, we conclude that the 52-day
period should be excluded from Rule 600 calculations.10
Although this conclusion would establish that the trial court abused its
discretion in discharging Mackey for a Rule 600 violation on these grounds,
the trial court did not address any potential delays during the court closures
due to the Covid-19 pandemic. To that end, Mackey maintains that the
Commonwealth was not duly diligent because the docket entry on August 14,
2020, when the trial court was still closed due to the pandemic, states that
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9 We also note that Mackey argues that the Commonwealth is not required to
sever only when it has otherwise been duly diligent throughout the
proceedings. We do not find this argument to be compelling, particularly,
where, as here, the case was brought to trial prior to the expiration of the
mechanical run date. See Hill, 736 A.2d at 592 (noting that where trial was
initially scheduled before the expiration of the run date, and the
Commonwealth was ready for trial, the delays by a codefendant were outside
the control of the Commonwealth and were excludable).
10 The docket does not indicate that any discovery was outstanding on January
24, 2020. Accordingly, like the trial court, our review of this 52-day period is
strictly restricted to the severance issue.
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the Commonwealth had failed to pass the FBI extract. See Appellee’s Brief at
16. Based on this docket entry, Mackey also disputes the email
correspondence cited by the Commonwealth to establish that discovery was
completed, claiming that her attorney was mistaken. See id. at 16 n.2.
Upon our review of the docket, we note that the entries on August 14,
2020, December 2, 2020, and December 4, 2020, all state the following:
“Complaining witness FBI extract outstanding.” Docket, 12/4/20; 12/2/20;
8/14/20. As noted above, the trial court found this extract to be mandatory
discovery, and the failure to provide mandatory discovery up until the
rescheduled trial date on December 4, 2020, would be in accord with the trial
court’s other findings of a lack of due diligence by the Commonwealth. See
Harth, supra. However, the docket entry on January 24, 2020, the date trial
was scheduled prior to the pandemic, does not include an entry indicating that
the FBI extract was outstanding. This would seem to support the
Commonwealth’s statement at the Rule 600 hearing, and the email
correspondence between the parties that discovery had been completed. In
light of this conflicting evidence, and in the absence of factual findings on the
issue by the trial court, we cannot determine whether any discovery was
outstanding during the pandemic and whether the Commonwealth exercised
due diligence in providing the FBI extract to Mackey on this record. For that
reason, we are constrained to vacate the order, and direct the trial court to
determine whether the Commonwealth had acted with due diligence in
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providing this discovery. In making this determination, the trial court must
account for the orders from the Supreme Court regarding the closures of the
court due to the pandemic and the suspension of the Rule 600 rules.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2022
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