Com. v. Lear, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
JASON ANDREW LEAR :
:
Appellant : No. 376 EDA 2018
Appeal from the Judgment of Sentence December 20, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007815-2016
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 13, 2020
Jason Andrew Lear appeals from his judgment of sentence of one to two
years of imprisonment followed by five years of probation, imposed after he
was convicted by a jury of theft by unlawful taking and by a judge of related
summary offenses. After careful consideration, we reverse Appellant’s
judgment of sentence, vacate his conviction, and reverse the order denying
his motion to dismiss.
On March 10, 2016, at 1:23 a.m., Chester City police officer William
Murphy observed Appellant and co-defendant Anthony Gomez trespassing on
the property of Murphy Ford, a car dealership. As Officer Murphy approached
in his police cruiser, he observed Appellant and Mr. Gomez stealing taillights
from pick-up trucks. Appellant and Mr. Gomez attempted to flee, but they
were arrested a short distance away and charged with theft by unlawful taking
and related charges. In total, the two men stole the taillights from four
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vehicles, which were valued at $2,500 each and were damaged when
recovered at the scene.
A preliminary hearing was scheduled for March 23, 2016. On that date,
the magisterial district judge cancelled the preliminary hearing and
rescheduled it for May 11, 2016, due to a conflict between counsel for
Appellant and his co-defendant. The magisterial district court judge attributed
the delay to the judiciary. From May 11, 2016 until August 17, 2016, two
Commonwealth continuances were granted after necessary witnesses were
unavailable for the hearing. On August 17, 2016, the magisterial district court
entered a defense continuance after Appellant was not transported to court
from prison. On September 12, 2016, the magisterial district court again
issued a judicial continuance due to a change in venue. As a result, a new
magisterial district judge was appointed and the magisterial docket number
changed. On December 13, 2016, Appellant proceeded to his preliminary
hearing where all of the charges were held for court.
On February 28, 2017, Appellant appeared for his pretrial conference.
At the hearing, counsel indicated that he had received discovery from the
Commonwealth, but wanted additional time to review the materials with
Appellant and to negotiate a plea deal. The trial court granted trial counsel’s
request, issuing a defense continuance and listing the case for trial on April 4,
2017. On April 11, 2017, the Commonwealth requested a continuance, which
was granted. Trial was rescheduled to April 17, 2017. On April 17, 2017, trial
counsel requested a continuance in order to obtain a fingerprint expert. The
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trial court granted the continuance, moving the trial date to May 8, 2017, and
allocating the time to Appellant.
On April 28, 2017, Appellant filed a Rule 600 Motion and a motion for
discovery. On May 11, 2017, the trial court held a hearing, at which the
Commonwealth presented multiple continuance forms. Appellant objected
since the Commonwealth did not produce witnesses to testify as to their
authenticity. Neither the Commonwealth nor trial counsel cited any authority
establishing the admissibility or inadmissibility of the exhibits. The court
overruled Appellant’s objections, finding that the continuances were standard
criminal court forms that were part of the official court record in Appellant’s
case and, therefore, admissible as business records.
After the court inspected the continuance forms, both sides argued their
positions. Appellant contended that none of the continuances should be
attributed to him since he did not request them. However, the trial court
found accepted two magisterial district judge’s continuances as judicial
countenances and held that those time periods were excludable. N.T. Rule
600 Hearing, 5/11/17, at 21-22, 26. Trial counsel countered that the
Commonwealth had not shown due diligence, therefore, all judicial
continuances should count against the Commonwealth. Id. at 27. The trial
court stated that it didn’t “care whether he likes it or not,” before taking the
matter under advisement. Id. at 33. The trial court also left the record open
for further investigation by the Commonwealth regarding the change of venue.
Id. at 34. No additional documents regarding Appellant’s Rule 600 motion
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were made part of the record. On May 31, 2017, the trial court denied
Appellant’s motion to dismiss pursuant to Rule 600 without issuing an
accompanying opinion.
On the same day, Appellant appeared for a hearing on a discovery
motion alleging that recordings of phone calls that Appellant had made from
prison were not provided in a readable format. The trial court ordered the
Commonwealth to play the calls for trial counsel. The court also granted the
Commonwealth’s motion to admit Appellant’s prior conviction for theft of
taillights.
On June 1, 2017, a jury found Appellant guilty of theft by unlawful
taking. At sentencing, the Commonwealth sought restitution payable to
Murphy Ford in the amount of $3,305.72, but did not present any witnesses
or exhibits corroborating that amount. Appellant objected that the
Commonwealth had not proven the accuracy of the requested restitution.
Appellant’s objection was overruled and he was sentenced to pay $3,305.72
in restitution to Murphy Ford. The trial court also sentenced Appellant to one
to two years of incarceration followed by five years of probation.
Appellant filed a timely post-sentence motion, which the trial court
granted in part, deeming Appellant RRRI eligible and amending his sentence
accordingly. The trial court denied the remaining relief Appellant requested
in his motion. This timely appeal followed. Both Appellant and the trial court
complied with the mandates of Pa.R.A.P. 1925.
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After an initial review, we remanded the case to the trial court for the
issuance of a supplemental Rule 1925(a) in order to explain its reasoning for
denying the Rule 600 motion and whether the Commonwealth showed due
diligence. The trial court responded with a filing entitled “supplemental
opinion” and a corresponding record. The supplemental record contained
paperwork indicating that, although Appellant was eligible to be released on
probation in October of 2019, he remained incarcerated at the trial court’s
request pending the outcome of this appeal. See Order, 10/25/19. We now
proceed to consider the merits of Appellant’s appeal anew.
Appellant presents the following issues:
I. Whether the lower court erred in denying Appellant’s motion
to dismiss pursuant to Pa.R.Crim.P. 600, where more than
365 days elapsed from the filing of the criminal complaint
and the only purported evidence of excludable time
consisted of alleged continuance forms that were not
authenticated or properly admitted through a sponsoring
witness?
II. Whether the restitution order handed down as part of
Appellant’s sentence is illegal and an abuse of discretion
since it was unsupported by the record, especially where the
[C]ommonwealth failed to establish he caused $3,305.72 in
damage?
Appellant’s brief at 6.
Appellant first alleges that the trial court erred when it denied his Rule
600 motion. He contends further that the trial court abused its discretion in
admitting the continuance forms upon which it relied in conducting its Rule
600 analysis. Hence, before we reach the substance of Appellant’s Rule 600
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challenge, we must first decide whether the continuance forms were properly
admitted. We review the trial court’s evidentiary rulings for an abuse of
discretion. See Commonwealth v. Bond, 190 A.3d 664, 667 (Pa.Super.
2018). An “[a]buse of discretion is not merely an error of judgment, but
rather where the judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of partiality,
prejudice, bias or ill will.” Commonwealth v. Aikens, 990 A.2d 1181, 1184-
85 (Pa.Super. 2010). With particular reference to evidentiary issues:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the trial
court upon a showing that it abused its discretion or committed
an error of law. Thus our standard of review is very narrow. To
constitute reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super. 2012). Additionally,
we note that we may affirm the trial court’s ruling on any basis supported by
the record. See Commonwealth v. Johnson, 160 A.3d 127, 144 (Pa. 2017).
At the Rule 600 hearing, Appellant objected to the admission of three
Commonwealth exhibits, which contained the continuance forms that had
been submitted during the span of Appellant’s case. See N.T. Rule 600
Hearing, 5/11/17, at 6; see also Appellant’s brief at 14-18. Appellant alleged
that these documents were inadmissible because the Commonwealth did not
present them through sponsoring witnesses. Id. After argument, the trial
court overruled Appellant’s objection, finding that these documents were
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standard forms regularly used in the course of the business of the criminal
court, and thus, admissible as self-authenticating business records. N.T. Rule
600 Hearing, 5/11/17, at 7-9. Appellant countered that the forms could not
be admitted as “business records” since the accuracy of the forms could not
be authenticated from the face of the document. Id. at 6-9; Appellant’s brief
at 14-16.
We agree with Appellant that these records lacked the necessary indicia
to be admitted as self-authenticating business records.1 However, our
analysis does not end there. It is well-established that the trial court may rely
on uncontested court records to establish the underlying reasons for prior
continuances. See, e.g. Commonwealth v. Bradford, 488 A.2d 628, 630-
31 (Pa.Super. 1985) (ruling detective’s illness as a cause of continuance was
established by uncontested notation in record); Commonwealth v. Lewis,
465 A.2d 1038, 1040-41 (Pa.Super. 1983) (taking judicial notice of
uncontested notations in the record to find the prosecution diligent);
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1 The trial court relies on Pa.R.E. 803(6)(B) to advocate for upholding its ruling
that the exhibits were properly admitted as business records. See Trial Court
Opinion, at 3. However, before a business record may be admitted under Rule
803(6)(B), an authenticating witness must provide sufficient detail relating to
the preparation and maintenance of the documents in the course of business
in order to justify presumption of the documents trustworthiness. See U.S.
Bank, N.A. v. Pautenis, 118 A.3d 386, 401 (Pa.Super. 2015). Not only did
the Commonwealth fail to provide an authenticating witness, but the
documents were devoid of any official certification indicating that they belong
to an official criminal court record. See Pa.R.E. 803(6)(D), 902(11).
Therefore, the documents were erroneously admitted as self-authenticating
business records.
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Commonwealth v. Postell, 421 A.2d 1069, 1070 (Pa.Super. 1980)
(upholding the trial court’s reliance on court records to establish reasons for
prior continuances); Commonwealth v. Jackson, 409 A.2d 873, 875 n.5
(Pa.Super. 1979) (discussing the need for a relaxation of the rules of evidence
at Rule 1100, the predecessor to Rule 600, hearings in order to effectively
litigate these types of motions quickly).
The styling of Appellant’s issue suggests that he is challenging the
accuracy of the documents offered by the Commonwealth. However,
Appellant’s arguments do not pertain to the accuracy of the documents
themselves, but rather to the court’s improper allocation of time to the
defense or court based on the reasons listed in the continuances. See N.T.
Rule 600 Hearing, 5/11/17, at 21-22 (“I am not arguing that there is
something factually wrong with the [continuance] form to the extent the form
is going to be admitted. I am arguing to the extent that is factually what
happened, that the Judge marked off Magisterial District Judge box and
intended to mark off that box that he did so incorrectly as a matter of law.”).
While Appellant is challenging the legal conclusions of the court, there is no
actual controversy regarding the factual accuracy of the continuance forms
themselves. Accordingly, we find that the trial court did not abuse its
discretion when it admitted the Commonwealth’s exhibits, and proceed to
consider Appellant’s substantive Rule 600 challenge.
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We review the trial court’s rulings regarding the computation of time at
the Rule 600 hearing under an abuse of discretion standard. Commonwealth
v. Carter, 204 A.3d 945 (Pa.Super. 2019). Our scope of review is limited to
the evidence of record at the Rule 600 evidentiary hearing and the findings of
the trial court. Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super.
2013). “An appellate court must view the facts in the light most favorable to
the prevailing party.” Commonwealth v. Bethea, 185 A.3d 364, 370
(Pa.Super. 2018).
Generally, Rule 600 mandates that the Commonwealth bring a
defendant to trial within 365 days from the date on which the criminal
complaint is filed. See Pa.R.Crim.P. 600(A)(2)(a). The 365th day is called
the “mechanical run date.” Commonwealth v. Ramos, 936 A.2d 1097,
1101-04 (Pa.Super. 2007). Once the mechanical run date has been
surpassed, and a defendant still has not been brought to trial, a defendant
may seek recourse by filing a written motion requesting that the charges be
dismissed with prejudice pursuant to Rule 600. See Pa.R.Crim.P. 600(D)(1).
The filing of a Rule 600 motion triggers a hearing. Id.
In Pennsylvania, the trial courts conduct a multi-step analysis to
ascertain whether Rule 600 has been violated. After determining the
mechanical run date, the court analyzes whether there is any excludable
delay. See Pa.R.Crim.P. 600(C)(1) (“[P]eriods of delay at any stage of the
proceedings caused by the Commonwealth when the Commonwealth has
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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 computation.”). This determination requires the court to
ascertain whether there have been any “delay[s] in proceedings,” and if so,
whether the delays should be included or excluded based on 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 is not a ‘delay’ for purposes of Rule 600.”
Id. If a period of time constitutes a “delay,” then it is excludable only if the
“period of delay was outside of 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). In order to prove it acted
with due diligence, the Commonwealth must demonstrate by a preponderance
of the evidence that it “put forth a reasonable effort” during all stages of a
criminal case. Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa.
2010). If the trial court finds that delays occurred that were not attributable
to the Commonwealth, then that time is not counted against the Rule 600
time-bar. Instead, the excluded time is added to the mechanical run date,
resulting in an “adjusted” mechanical run date by which the Commonwealth
must bring the defendant to trial. Commonwealth v. Goldman, 70 A.3d
874, 879-80 (Pa.Super. 2013).
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Here, the criminal complaint was filed on March 10, 2016. Thus, barring
any excludable time, the Commonwealth had until March 10, 2017, to bring
Appellant to trial. Trial commenced on May 31, 2017. The total time between
the complaint and the commencement of trial was 447 days, or eighty-two
days past the mechanical run date. Accordingly, in order to sustain the trial
court’s finding that the Commonwealth complied with Rule 600, at least
eighty-two days must be excludable. See Mills, supra at 325.
In his brief, Appellant disputes the various courts’ characterizations of
certain continuances as defense or judicial continuances. See Appellant’s brief
at 15-16. He further alleges that the trial court erred by accepting these prior
decisions without considering whether the Commonwealth acted with due
diligence. Id. We agree.
By way of background, the contested periods of time at issue involve
twenty-one days allocated to the defense and one-hundred and fifty-three
days attributed to the judiciary at the magisterial district court level.2 At the
Rule 600 hearing, Appellant argued that these alleged defense and judicial
continuances could have been avoided if the Commonwealth had exercised
due diligence by severing Appellant’s case from his co-defendant, securing
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2 Specifically, the magisterial district court issued the following continuances:
(1) a court continuance from March 23, 2016, to May 18, 2016, due to a
conflict of counsel between Appellant and his co-defendant; (2) a defense
continuance from August 17, 2016, until September 7, 2016, after Appellant
was not transported to the magistrate court; and (3) a court continuance from
September 7, 2016, until December 13, 2016, due to a change of venue.
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Appellant’s transportation for the preliminary hearing, and making an effort
to speed up the change of venue which Appellant did not request. N.T. Rule
600 Hearing, 5/11/17, at 20-26. Therefore, Appellant contends it was
improper for the Rule 600 court to exclude all of this time.
Appellant also attacks two continuances that were allegedly improperly
attributed to the defense at the trial court level, which amounted to fifty-six
days of excludable time.3 See Appellant’s brief at 15-16. Appellant alleges
first that trial counsel’s request for time to review discovery and discuss a plea
offer with the Commonwealth was unfairly characterized as a defense request,
since the purpose of the pre-trial conference was to schedule the first listing
for Appellant’s trial, not to proceed to trial that day. See N.T. Rule 600
Hearing, 5/11/17, at 30. The second defense continuance related to
Appellant’s need to obtain a defense expert, and Appellant maintains that it
was the result of the Commonwealth’s separate delay in turning over
discovery to Appellant, and therefore, should have counted against the
Commonwealth. Id. at 31. Finally, even if both of these incidents amounted
to a “delay,” Appellant counters that the court should have analyzed the
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3 First, at the February 28, 2017 pre-trial conference, trial counsel requested
time to discuss an offer from the Commonwealth and go over recently-
received discovery with Appellant. The trial court granted trial counsel’s
request issuing a defense continuance, and scheduling trial for April 4, 2017.
During this time period, Appellant considered and rejected two plea offers
extended to him from the Commonwealth. Second, the trial court granted a
defense continuance request from April 17, 2017, until May 8, 2017, so that
the defense could procure a fingerprint expert to assist the defense at trial.
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Commonwealth’s due diligence before excluding the time. See Appellant’s
brief at 16.
Appellant relies on Mills, supra to support his argument, since the vast
majority of the excluded time was deemed a judicial delay. Id.; see also
Appellant’s reply brief at 7-8. In Mills, our Supreme Court analyzed the issue
of whether a period of time was attributable to the judiciary on the basis of
court congestion or to the Commonwealth, which was not prepared to proceed
to trial. See Mills, supra at 324. At the Rule 600 hearing, the
Commonwealth claimed that it did not need to exercise due diligence since
court congestion had rendered the judiciary unavailable. Id. In ruling against
the Commonwealth, our Supreme Court explained that while judicial delay
could be grounds to adjust the mechanical run date, the Commonwealth must
first show that it was trial-ready. Id.
Throughout the Rule 600 hearing in the case sub judice, the trial court
repeatedly interrupted trial counsel’s arguments to point out where trial
counsel’s allocations of time differed from what was written on the
continuance forms. See N.T. Rule 600 Hearing, 5/11/17, at 8, 12-13, 21-22,
26, 33. More specifically, the trial court indicated that if trial counsel thought
that the magisterial district judge made a mistake, “than he should subpoena
him,” otherwise the court intended to rely on the time attributions as
memorialized in the continuance forms, since those are the “standard form
used by everyone.” Id. at 21. For example, in response to trial counsel’s
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argument regarding whether continuances were incorrectly attributed to the
judiciary, the trial court interjected:
I understand your argument but here is the point. The Magisterial
District Judge himself marked it off that it was requested by the
Court, that is the checkmark, that is what he signed, period. No
checkmark that the [d]efendant signed it, defense or the [d]istrict
[a]ttorney. The [c]ourt checked it off, the [c]ourt took a
continuance. It is excludable time under the Rule 600 analysis. I
understand that you don’t agree with that. But that is the law.
So I heard your argument, overrule that.
Id. at 22.
Appellant countered the trial court’s reasoning by pointing out that the
fact that the magistrate court checked off a continuance form as a judicial
continuance should not foreclose the analysis. Id. at 25. Instead, the court
must first determine if the Commonwealth exercised due diligence. Id. In
response, the Commonwealth said that it “has no control over Court
Administrative scheduling.” Id. at 26. Appellant disagreed and presented the
court with an unnamed case that he argued countered the Commonwealth’s
position. Id. While the court agreed to “look into” this issue, it also indicated
that it “didn’t know how the Commonwealth [could] be tagged with a court
administrative function.” Id. at 27. After the Commonwealth requested
additional time to investigate the specific reason behind the change of venue,
the trial court concluded the hearing, taking the entire matter under
advisement. Id. at 32. Later, when the trial court issued its order denying
Appellant’s Rule 600 motion, it did so without explanation.
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In its initial Rule 1925(a) opinion, the trial court properly summarized
the necessary steps that a court must undertake when presented with a Rule
600 motion, identified the correct mechanical run date, and pointed to a
specific amount of excludable time:
The [c]ourt determined that the mechanical run date started on
March 10, 2016. The total days between the mechanical run date
and the date of the Rule 600 hearing is 432 days. The [c]ourt
correctly used its discretion and found that [Appellant’s] Rule 600
rights were not violated, as only 211 of those days were
attributable to the Commonwealth.
See Trial Court Opinion, 7/22/19, at 3-4. The trial court also dismissed a
case cited by Appellant, which he had used to argue that the change of venue
continuance should have been attributed to the Commonwealth not the
judiciary, as irrelevant because there was no evidence that the
Commonwealth ever “lost track” of Appellant’s case. Id. However, the court
offered no explanation as to how it had calculated the specific amount of
excludable time or any indication that it had found that the Commonwealth
exercised due diligence during the relevant time periods.
In their respective appellate briefs, Appellant and the Commonwealth
proceeded from the assumption that the trial court made its Rule 600
allocations consistently with its statements at the Rule 600 hearing which
relied entirely on the time allocations memorialized in the continuance forms.
The continuance forms excluded a significant portion of time as judicial delay.
Accordingly, Appellant’s arguments focused on whether the trial court erred
when it excluded time as judicial delay, and then alternatively whether the
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time was properly deemed a judicial delay, but should not have been excluded
because the Commonwealth did not make a showing that it acted with due
diligence.
We agreed with Appellant that there was no evidence that the trial court
had ever conducted a due diligence analysis. Since our precedent mandates
that we remand so that the trial court can make a due diligence determination
before proceeding, we did so. See Mills, supra at 325; see also Selenski,
supra at 1089 (explaining that where the trial court had not conducted a due
diligence analysis in the first instance, the Superior Court should remand so
that the trial court can make that determination). Additionally, we instructed
the court to lay out the specific time allocations for each continuance and to
give a clear explanation for each apportionment.
Importantly, “[A] trial court has an obligation to comply scrupulously,
meticulously, and completely with an order of [the appellate court] remanding
a case to the trial court.” Commonwealth v. Williams, 877 A.2d 471, 474
(Pa.Super. 2005). The trial court is required to “strictly comply with the
mandate of the appellate court.” Id. at 474–75 (citation omitted). Issues not
included in the mandate cannot be considered by the trial court. See id. at
475.
The trial court submitted a chart that it alleged complied with our “clear”
and “detailed calculation” instruction. Supplemental Opinion, 7/13/2020, at
1. Unfortunately, we must disagree. First, the submission is difficult to follow,
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since it requires line-by-line cross-referencing between multiple magisterial
docket sheets in order to even read it. Second, to the extent that we were
able to discern what the trial court’s supposed time allocations were, many
were inconsistent with the time breakdowns contained in the continuance
forms which the trial court admitted, read into the record, and relied on when
rendering preliminary rulings during the Rule 600 hearing.
For example, in the chart, the trial court excluded forty-nine days
between March 23, 2016, and May 11, 2016, from the Rule 600 calculation as
a defense continuance. However, at the Rule 600 hearing, the court read the
continuance form into the record, before twice indicating that this time was a
judicial continuance. Id. at 8-9, 20-22. Accordingly, Appellant responded
that the trial court erroneously excluded this time as a judicial continuance
because the Commonwealth had not shown due diligence. See Appellant’s
brief at 16. We remanded so that the trial court could conduct the proper due
diligence analysis. However, instead of conducting this analysis as requested,
the trial court reassigned this period of time to the defense.
The allocations also contradict concessions made by the
Commonwealth, which both sides agreed to and the court accepted, at the
Rule 600 hearing. At the hearing, the Commonwealth conceded that March
10, 2016 to March 23, 2016 and December 13, 2016 to February 28, 2017 or
ninety-one days should count against them. See N.T. Rule 600 Hearing,
5/11/17 at 13, 15. However, in the chart, the trial court excludes this time
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from the Rule 600 analysis, deeming it a judicial continuance. Again, this
change was not accompanied by any explanation or a finding that the
Commonwealth had exercised the necessary due diligence.
Further complicating the reliability of the chart, it contains errors that
render the chart internally contradictory. For example, the trial court excluded
twenty-one days or from April 17, 2017 to May 8, 2017 as a defense
continuance, while simultaneously notating in a comment next to this division
that the “parties agree CW cont. per Judge’s notes.” However, a review of the
record reveals that the parties have never agreed that this time frame should
be a Commonwealth continuance. Instead, at the Rule 600 hearing, the
Commonwealth argued, and the trial court held, that this time was a defense
continuance. Id. at 16. While Appellant repeatedly contended that this time
should not be excluded, later in the hearing he acknowledged that the trial
court had already ruled against him on this issue. Id. at 31.
Despite our explicit instruction for the trial court to explain its reasoning
and conduct due diligence analyses where appropriate, the supplemental filing
contains no readily discernable explanations or due diligence analyses.
Instead, the trial court has presented us with new time allocations that would
allow the Commonwealth to survive Rule 600 review without a showing of due
diligence. The court has not acknowledged the departures it has made from
its earlier rulings and has provided minimal explanation, consisting of some
short-hand notations. We remanded so that the trial court could clarify the
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record, not materially alter it. Thus, this new filing is unresponsive and
contrary to our explicit remand instructions.
Since the trial court has failed to provide clear reasoning for its denial
of Appellant’s Rule 600 motion, and has not considered whether the
Commonwealth demonstrated due diligence before excluding time as judicial
delays, it has not complied with our well-established precedent. Mills, supra
at 325; Selenski, supra, at 1089. The certified record still does not sustain
a finding of due diligence and the trial court failed to remedy the deficiencies
in its analysis when it was given the opportunity. Hence, a second remand
for this purpose will not serve the best interests of justice, particularly when
the trial court has directed that Appellant is not eligible to be released on
probation until this appeal is resolved. Accordingly, since the Commonwealth
has not shown that it acted with due diligence, we find that the trial court
erred when it excluded time that might be attributable to the judiciary from
the Rule 600 analysis. Without this time excluded, the Commonwealth cannot
show that it brought Appellant to trial within 365 days. Accordingly, we
reverse the trial court’s denial of the Rule 600 motion and vacate his conviction
and judgment of sentence.4
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4 In his second issue, Appellant challenges the restitution order as illegal
because the court ordered him to pay a business entity, which, pursuant to
Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016), and Commonwealth
v. Hunt, 220 A.3d 582, (Pa.Super. 2019), is not a “victim” under the version
of the statute applicable to his case. See 18 Pa.C.S. § 1106 (effective January
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Judgment of sentence and conviction vacated. Order reversed.
Jurisdiction relinquished.
Judge Murray concurs in the result.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/20
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1, 2005, to October 23, 2018); see Appellant’s Reply Brief at 9. The resolution
of the Rule 600 issue renders any sentencing errors moot. However, if we
had reached this issue, we would have agreed with Appellant, who has cited
case law that is directly on point. Since the trial court ordered restitution
payable to a business, which is not a “victim” under the applicable version of
§ 1106, the restitution order was illegal.
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