Com. v. Richardson, A. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALLAN RICHARDSON, :
:
Appellant : No. 2572 EDA 2018
Appeal from the Judgment of Sentence Entered April 27, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007111-2016
BEFORE: NICHOLS, J., KING, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 21, 2020
Allan Richardson (Appellant) appeals from the April 27, 2018 judgment
of sentence imposed after a jury convicted him of two violations of the
Uniform Firearms Act (VUFA). Specifically, Appellant challenges the trial
court’s denial of his motion to dismiss pursuant to Pa.R.Crim.P. 600. We
remand to the trial court for issuance of a supplemental Pa.R.A.P. 1925(a)
opinion consistent with this memorandum.
We provide the following background from the record. On June 3,
2016, a criminal complaint was filed charging Appellant with the
aforementioned VUFA offenses and eight additional counts, including
attempted murder and aggravated assault. A preliminary hearing was
scheduled for June 23, 2016, but at the request of the Commonwealth it was
continued to July 8, 2016. On July 5, 2016, the scheduled preliminary
*Retired Senior Judge assigned to the Superior Court.
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hearing was cancelled. Appellant was held for court by an indicting grand
jury on July 22, 2016. At an August 23, 2016 scheduling conference, the
court set trial for August 7, 2017. The docket entry for the scheduling
conference reads: “Jury trial is scheduled: 8/7/17, Rm 702. Earliest possible
date is given.” Docket Entry 55.
On August 4, 2017, three days prior to the initial trial listing, the trial
court held a pre-trial conference and noted that “[b]oth sides [are] ready for
trial.” Docket Entry 62. On the day the trial was scheduled to start, the
Commonwealth requested and was granted a continuance because the
complaining witness and an eyewitness failed to appear in court. According
to the Commonwealth, the eyewitness was sick, and the complaining witness
failed to appear despite being served. N.T., 2/12/2018, at 8.
At an August 31, 2017 status conference, both Commonwealth
witnesses were present. However, Appellant moved to continue the trial to
January 29, 2018. Docket Entry 75. On January 29, 2018, the trial was
again continued at Appellant’s request to February 12, 2018, because
Appellant’s counsel was ill. In granting this final continuance, the court noted
in the docket that the final two week delay was excludable. Docket Entry 85.
On February 11, 2018, Appellant filed a petition to dismiss the
information pursuant to Pa.R.Crim.P. 600(A). A hearing was held on
February 12, 2018. The Commonwealth did not call witnesses or present
documentary evidence at the hearing, but argued it had exercised due
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diligence as to the original trial listing of August 7, 2017, and had been
ready to proceed as of the August 31, 2017 status hearing. N.T., 2/12/2018,
at 8. In support, the Commonwealth stated it had “continu[ed] contact with
[the witnesses] by sending police out and speaking to their parents. And on
the first trial listing, one of them was sick and the other didn’t show up.” Id.
It also noted it had been in contact with the complaining witness since
before the indicting grand jury. Id. at 8-9. Following argument, the trial
court denied Appellant’s motion without elaborating as to its reasoning or
making a finding that any specific period of time was excludable. Id. at 10.
A jury trial began on February 12, 2018, and, on February 14, 2018,
the jury found Appellant guilty of two VUFA counts.1 A sentence of three and
one-half years to seven years of incarceration, followed by five years of
probation, was imposed on April 27, 2018. Appellant’s timely-filed
post-sentence motion was denied on September 4, 2018.
Appellant timely filed a notice of appeal, and both Appellant and the
trial court complied with Pa.R.A.P. 1925. On appeal, Appellant claims the
trial court erred in denying Appellant’s Rule 600 motion. Appellant’s Brief
at 3. We review this issue mindful of the following.
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 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
1 The jury acquitted Appellant of attempted murder and aggravated assault.
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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.
Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa. Super. 2018) (quoting
Commonwealth v. Wendel, 165 A.3d 952, 955-56 (Pa. Super. 2017))
(citation and brackets omitted).
In pertinent part, Rule 600 provides as follows.
(A) Commencement of Trial; Time for Trial
(1) For the purpose of this rule, trial shall be deemed
to commence on the date the trial judge calls the
case to trial, or the defendant tenders a plea of
guilty or nolo contendere.
(2) Trial shall commence within the following time
periods.
(a) Trial in a court case in which a written
complaint is filed against the defendant shall
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commence within 365 days from the date on
which the complaint is filed.
***
(C) Computation of Time
(1) For purposes of paragraph (A), 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. Any other periods of delay shall be
excluded from the computation.
***
(D) Remedies
(1) When a defendant has not been brought to trial
within the time periods set forth in paragraph (A), at
any time before trial, the defendant’s attorney...
may file a written motion requesting that the charges
be dismissed with prejudice on the ground that this
rule has been violated. A copy of the motion shall be
served on the attorney for the Commonwealth
concurrently with filing. The judge shall conduct a
hearing on the motion.
Pa.R.Crim.P. 600.
The courts of this Commonwealth conduct a multi-step analysis to
compute time pursuant to Rule 600. Wendel, 165 A.3d at 956. First, Rule
600(A) provides the mechanical run date. Second, the trial court determines
if any time constitutes an excludable delay pursuant to Rule 600(C). 2 This
determination involves two distinct inquiries: whether the time is a “delay in
2 This memorandum uses “excludable” to refer to all time that is not included
in the Rule 600 count. See Commonwealth v. Jackson, 765 A.2d 389, 394
n.8 (Pa. Super. 2000) (“[T]he distinction between ‘excludable time’ and
‘excusable delay’ in the context of Rule 600 has been blurred.”).
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proceedings,” and whether the delay should be excluded based on an
analysis of the Commonwealth’s due diligence. Commonwealth v. Mills,
162 A.3d 323, 325 (Pa. 2017). Time that is “necessary to ordinary trial
preparation” or “attributable to the normal progression of a case simply is
not a ‘delay’ for purposes of Rule 600.” Id. If time is a “delay,” it is
excludable when it falls under the “wide variety of circumstances
[encompassed by Rule 600] under which a period of delay was outside the
control of the Commonwealth and not the result of the Commonwealth’s lack
of diligence.” Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super.
2013) (citations and quotation marks omitted).
“A Rule 600 motion requires a showing of due diligence by a
preponderance of the evidence for the Commonwealth to avail itself of an
exclusion.” Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)
(citing Commonwealth v. Hill, 736 A.2d 578, 586 (Pa. 1999)). “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.” Id. Trial courts “must
exercise judgment in distinguishing between delay attributable to the court
and that which should be allocated to a party.” Mills, 162 A.3d at 325.
Judicial delays “arising out of the court’s own scheduling concerns[]... where
a trial-ready prosecutor must wait several months due to a court calendar...
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should be treated as ‘delay’ for which the Commonwealth is not
accountable.” Id.
Because delays not attributable to the Commonwealth are not counted
against Rule 600’s time-bar, excluded time is added to the mechanical run
date resulting in an extension of the run date. If the Commonwealth fails to
bring the defendant to trial by the final Rule 600 run date, the trial court
must dismiss the charges. Wendel, 165 A.3d at 956.
In the instant case, the complaint was filed on June 3, 2016. The
mechanical run date was June 3, 2017, 365 days later. 3 Trial commenced on
February 12, 2018. The total time between the complaint and
commencement of trial is 619 days, 254 days past the mechanical run date.
The 165 days between the August 31, 2017 status hearing and the February
12, 2018 trial constitute excludable delay because trial was continued at
defense’s request. See Commonwealth v. Barbour, 189 A.3d 944, 955
(Pa. 2018). Excluding these delays, 89 days remain over the mechanical run
date. Thus, to comply with Rule 600, at least 89 additional days must be
excludable.
3 As Appellant corrects in his brief to this Court, Appellant erroneously listed
the date of the complaint as June 7, 2016 in his February 11, 2018 motion
before the trial court. Rule 600 Petition, 2/11/2018, at 1; Appellant’s Brief
at 5. The trial court repeats this date in its opinion, resulting in calculations
that are four days short of the actual day count. Trial Court Opinion,
4/3/2019, at 7. This error is inconsequential to the Rule 600 analysis in this
case.
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The trial court’s computation of time pursuant to Rule 600 is as
follows.
As noted, [A]ppellant was charged on June 7, 2016 [sic].
On August 23, 2016 a pre-trial conference was held before the
Honorable Charles J. Cunningham who set the trial for August 7,
2017. Judge Cunningham noted that August 7, 2017, was the
earliest possible date given the court’s schedule so therefore, the
349 days between August 23, 2016 and August 7, 2017, were
not chargeable to the Commonwealth. “[J]udicial delay is a
justifiable basis for an extension of time if the Commonwealth is
ready to proceed.” Commonwealth v. Hunt, 858 A.2d 1234,
1241 (Pa. Super. 2004) (quoting Commonwealth v. Wroten,
451 A.2d 678, 681 (Pa. Super[.] 1982)). Subtracting that period
from the 615 [sic] days it took to try [A]ppellant indicates that
[A]ppellant was tried in conformity with Rule 600.
Trial Court Opinion, 4/3/2019, at 7-8.
Appellant disputes the trial court’s characterization of the time
between the August 23, 2016 status conference and the August 7, 2017 trial
listing as judicial delay, arguing “the act of setting a first trial date is not a
situation in which a ‘trial-ready’ prosecutor is being prevented from going
forward to trial... [it] is something done in the normal progression of a
case.” Appellant’s Brief at 14. Appellant argues that the Commonwealth was
not trial-ready at the first trial listing because two necessary witnesses failed
to appear. Id. Appellant further contends that even if the court finds the
time at issue is a “delay,” the court must analyze the Commonwealth’s due
diligence before time can be excluded. Id. at 15. Appellant argues that the
trial court “made no attempt to engage in a consideration of the
Commonwealth’s due diligence.” Id. at 15. Had the court conducted a due
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diligence analysis, Appellant claims “the record [would] demonstrate a clear
lack of due diligence during the time leading up to the first trial” based on
the Commonwealth’s failure to procure its witnesses and the timing of the
Commonwealth’s pre-trial motions. Id. at 15-16.
Appellant relies on Mills to support his argument. In that case, our
Supreme Court held that time attributable to the normal progression of a
case is not excludable where the Commonwealth is not prepared for trial.
Mills, 162 A.3d at 325. The issue in Mills was a period of time that could
have been attributed to either the court’s schedule, which set the trial
schedule based on its earliest availability, or to the Commonwealth, which
was not prepared to proceed to trial on the scheduled trial date. Id. at 326
(Wecht J., concurring). In ruling against the Commonwealth, our Supreme
Court acknowledged that judicial delay could be grounds to exclude time
where “a trial-ready prosecutor must wait several months due to a court
calendar,” but judicial delay did not apply in Mills because the
Commonwealth failed to exercise due diligence in preparing for trial. Id. at
325. In a concurring opinion, Justice Wecht emphasized that “‘judicial delay’
cannot be substituted for due diligence...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). Because time is not per se excludable where the
court has set the trial date for the earliest possible day, a trial court must
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distinguish between delay attributable to the court and delay attributable to
a party. Mills, 162 A.3d at 325.
This Court agrees with Appellant’s contention that the trial court failed
to analyze whether the Commonwealth exercised due diligence in bringing
the case to trial. The trial court properly identified that “due diligence is a
fact-specific concept that must be determined on a case-by-case basis.”
Trial Court Opinion, 4/3/2019, at 7 (quoting Selenski, 994 A.2d at 1089).
However, in its case-specific analysis, the trial court did not include any
assessment of the Commonwealth’s conduct or readiness. Id. Instead, it
relied exclusively on the court’s schedule to conclude that 349 contested
days should not be counted. Id. Notwithstanding docket records indicating
that the trial court could not have scheduled trial before August 7, 2017, it
was improper for the trial court to have excluded time as a judicial delay
without first making a finding that the Commonwealth exercised due
diligence. See Mills, 162 A.3d at 325 (holding that time during which the
Commonwealth is not ready for trial cannot be excluded as a delay under
Rule 600(C)(1)).
Where a trial court has failed to conduct a proper due diligence
analysis, the correct action for this Court to take is to remand for the trial
court for such analysis. See Selenski, 994 A.2d at 1089 (stating that where
the trial court had not conducted a due diligence analysis in the first
instance, the Superior Court should remand for the trial court to determine
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whether the Commonwealth exercised due diligence pursuant to Rule 600).
Accordingly, we remand to the trial court to file with this Court a
supplemental 1925(a) opinion within 30 days analyzing whether the
Commonwealth exercised due diligence at pertinent intervals and, based on
that analysis, whether specific delays are attributable to the court, the
Commonwealth, or Appellant. If the court is unable to conduct this analysis
on the existing record, it may conduct an additional hearing.
Case remanded. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/21/2020
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