Com. v. Wilkins, G. ( 2019 )

J-S26042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY K. WILKINS :
:
Appellant : No. 996 EDA 2018
Appeal from the Judgment of Sentence March 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009333-2016
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 1, 2019
Gregory K. Wilkins (Wilkins) appeals a judgment of sentence entered in
the Court of Common Pleas of the First Judicial District (trial court) following
his convictions for robbery and possession of a firearm by a prohibited
person.1 He argues that the trial court erroneously denied his motion to
dismiss under Pennsylvania Rule of Criminal Procedure 600. We agree and
vacate the judgment of sentence.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1See 18 Pa.C.S. § 3701 (robbery); 18 Pa.C.S. § 6105 (weapon possession by
prohibited person). A nolle prosequi was entered as to several related charges
at the conclusion of sentencing.
J-S26042-19
I.
The relevant parts of this case’s procedural history were summarized by
the trial court as follows:
On June 7, 2016, [Wilkins] was arrested and charged with, inter
alia, robbery and possession of a firearm by a prohibited person.
On June 23, 2016, the Commonwealth’s request for a continuance
for no severance of [Wilkins] and his co-defendant at the
preliminary hearing was granted. The co-defendant’s counsel was
unavailable, resulting in the Commonwealth’s requests. On July
22, 2016, the Commonwealth’s request for a continuance to relist
[Wilkins’] case for an indicting grand jury was granted. On August
26, 2016, the Commonwealth’s request for a continuance for
status of the indictment was granted. On September 16, 2016,
the Commonwealth’s request for a continuance due to no
indictment from the grand jury was granted. The co-defendant
then made a motion for recusal that was granted. On September
26, the Commonwealth’s request for a continuance was granted.
On October 6, 2016, all charges were held for court against
[Wilkins].
On November 9, 2016, [Wilkins] rejected the Commonwealth’s
offer at the pre-trial conference. On November 29, 2016, a
scheduling conference was held and the case was listed for a jury
trial on March 27, 2017. . . [O]n March 30, 2017 . . . the case
was rescheduled for a jury trial on May 15, 2017. On the date of
the rescheduled jury trial, the Commonwealth requested a
continuance for further investigation, [which] was granted. The
jury trial was rescheduled for August 7, 2017.
On July 31, 2017, [Wilkins] filed a motion to dismiss pursuant to
Rule 600 [and a cursory hearing on the motion was held on August
7, 2017.] The jury trial was rescheduled for October 23, 2017.
Trial Court Opinion, 10/11/2018, at 1-2.
The Commonwealth filed a written response to Wilkins’ motion to
dismiss, asserting for the most part that all of the time relevant to this appeal
was excluded for Rule 600 purposes due to “court congestion” which the
-2-
J-S26042-19
Commonwealth had “no control over.” Commonwealth Response, 9/12/2017,
at 2-3.
The hearing on Wilkins’ Rule 600 motion to dismiss was brief. Defense
counsel asserted at the hearing that all of the time which had elapsed in the
case was attributable to the Commonwealth because it had failed to exercise
due diligence. See Motion Hearing Transcript, 8/7/2017, at 6-7. The
Commonwealth said little at the hearing and only briefly discussed its
unsuccessful plans to secure a grand jury indictment and make the
complainant available for trial. Id. at 3, 5-6. The Commonwealth did not
specify when contact with the complainant had been lost or what effort had
been taken to reach him. Id. 5-6. Nor did the Commonwealth discuss court
congestion as causing any delays.
In response to defense counsel’s argument, the trial court did not make
any specific inquiry into the time periods in question. The trial court made no
rulings regarding periods of delay caused by the Commonwealth, the defense
or the judiciary. Instead, the trial court asked defense counsel to address
Wilkins’ bail status. Id. at 7-8.
The motion to dismiss was denied without opinion on September 15,
2017. Wilkins filed a motion for reconsideration of that ruling which was
denied on October 19, 2017. The jury trial began on October 23, 2017, and
Wilkins was found guilty of robbery and possession of a firearm by a prohibited
person and was sentenced on the robbery count to a prison term of between
-3-
J-S26042-19
three-and-one-half and seven years. On the weapon possession count, he
received a concurrent prison term of between one and two years.
Wilkins appealed, asserting in his Rule 1925(b) Statement that the
Commonwealth’s failure to exercise due diligence resulted in a violation of his
speedy trial rights under Rule 600. See Rule 1925(B) Statement of Errors
Complained of on Appeal, 5/1/2018, at 1.2 He now presents one issue for our
consideration:
Did not the trial court erroneously deny [Wilkin’s] motion to
dismiss . . . where [he] was tried well beyond the amended run
date and the Commonwealth did not establish due diligence, as it
failed to provide discovery in a timely manner and did not account
for complainant’s failures to appear or secure complainant’s
presence until after the amended run date?
Appellant’s Brief, at 3.
____________________________________________
2 The Commonwealth argues in its brief that Wilkins waived his speedy trial
claims by failing to provide “relevant analysis” in his 1925(b) Statement
regarding the excluded periods of delay. Appellee’s Brief, at 5. In this regard,
the respective burdens of the parties are long settled. Once a year has elapsed
from the date charges are filed, a defendant only has to assert that the
Commonwealth failed to exercise due diligence during the relevant times. See
Pa.R.Crim.P. 600(D). The Commonwealth must then show that enough time
was properly excluded from the speedy trial calculation to warrant denial of
the motion. See e.g., Brown v. Commonwealth, 584 A.2d 902, 906 (Pa.
1990) (holding that Commonwealth’s lack of evidence showing its efforts to
prepare for trial “constitutes a failure to exercise due diligence.”). Because
Wilkins’ motion was initially denied by order and without a written opinion, he
preserved his present claim for appeal. We note that in its subsequent Rule
1925(a) opinion, the trial court quoted and directly addressed Wilkins’ 1925(b)
Statement without finding it to be deficient.
-4-
J-S26042-19
II.
Generally, Rule 600 protects the speedy trial rights of the accused, as
well as society’s interest in prosecuting crimes. Commonwealth v. Watson,
140 A.3d 696, 698 (Pa. Super. 2016).3 The Rule mandates that a “[t]rial in a
____________________________________________
3 Rule 600 provides in relevant part:
(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 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
....
(3)(a) When a judge or issuing authority grants or denies
a continuance:
(i) the issuing authority shall record the identity of
the party requesting the continuance and the reasons for
granting or denying the continuance; and
(ii) the judge shall record the identity of the party
requesting the continuance and the reasons for granting or
-5-
J-S26042-19
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). The final day of that period is called the
“mechanical run date.” See generally Commonwealth v. Ramos, 936 A.2d
1097, 1101-04 (Pa. Super. 2007). If the proceedings are delayed for reasons
enumerated in Rule 600, then such periods may be excluded from the
computation of time at the trial court’s discretion, and the mechanical run date
may be adjusted accordingly. See id.4
Whenever a continuance is granted in a case, the trial court must
identify the party who requested it, the reasons for granting it, and whether
the time will be included in “the computation of the time within which trial
____________________________________________
denying the continuance. The judge also shall record to
which party the period of delay caused by the continuance
shall be attributed, and whether the time will be included
in or excluded from the computation of the time within
which trial must commence in accordance with this rule.
Pa.R.Crim.P. 600.
4 The trial court’s rulings as to computation of time under Rule 600 are
reviewed under an abuse of discretion standard. See Commonwealth v.
Carter, 204 A.3d 945 (Pa. Super. 2019). “An appellate court must view the
facts in the light most favorable to the prevailing party.” Id. (quoting
Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa. Super. 2018)). “[W]hen
considering the trial court’s ruling, this Court “is not permitted to ignore the
dual purpose behind Rule 600 ... (1) the protection of the accused’s speedy
trial rights, and (2) the protection of society.” Id. To the extent a trial court’s
ruling on the computation time is “framed as a legal issue,” the standard of
review is de novo. Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).
-6-
J-S26042-19
must commence[.]” Pa.R.Crim.P. 600(C)(a)(i)-(ii). If trial does not
commence within the time required by Rule 600, the defendant must seek
relief in the form of a motion to dismiss. See Pa.R.Crim.P. 600(D). In doing
so, a defendant does not have to show that he suffered prejudice as a result
of delay. See Commonwealth v. Kearse, 890 A.2d 388 (Pa. 2005).
The trial court must then hold a hearing on the motion and may exclude
time from the Rule 600 calculation if “the delay occurred as the result of
circumstances beyond the Commonwealth’s control and despite its due
diligence[.]” Pa.R.Crim.P. 600, cmt; see Commonwealth v. Goldman, 70
A.3d 874, 879 (Pa. Super. 2013). “[I]n assessing any period of delay under
Rule 600, it is critical to ascertain the cause of such delay. Stated in the most
general terms, when the Commonwealth causes delay, the Rule 600 clock
continues to tick; when the defendant causes delay, the clock stops.”
Commonwealth v. Barbour, 189 A.3d 944, 958 (Pa. 2018) (emphasis in
original).
In Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017), our Supreme
Court addressed when time is properly excluded for speedy trial purposes.
The Court held that “time attributable to the normal progression of a case
simply is not [an excludable period of] ‘delay’ for purposes of Rule 600.” Mills,
162 A.3d at 325. The trial court must instead distinguish the “time necessary
to ordinary trial preparation [from] judicial delay arising out of the court’s own
scheduling concerns.” Id.
-7-
J-S26042-19
Mills clearly stated that the time which passes in the “normal
progression of a case” must be included in the Rule 600 computation unless
the Commonwealth can show it exercised due diligence during the period or
the record establishes that the judiciary or the defense was responsible for
the delay. Mills, 132 A.3d at 325; Pa.R.Crim.P. 600(C). Simply put, if there
is no basis to exclude a period of time, then it counts toward the time in which
a defendant must be tried. See Barbour, 189 A.3d at 958.
Mills continued to apply the long established rule that the
Commonwealth has a burden to prove that it acted with due diligence during
all stages of a criminal case. See Mills, 132 A.3d at 324; Commonwealth
v. Burno, 154 A.3d 764, 794 (Pa. 2017); Commonwealth v. Brown, 584
A.2d 902, 908 (Pa. 1990) (“We hold that due diligence likewise imposes on
the government the duty to employ simple recordkeeping systems in
circumstances such as this.”). To prove it acted with due diligence, the
Commonwealth must demonstrate by a preponderance of the evidence that it
“put forth a reasonable effort.” Commonwealth v. Selenski, 994 A.2d 1083,
1089 (Pa. 2010).
III.
In this case, the trial court found in its Rule 1925(a) opinion that a total
of 504 days had elapsed between the charging date (June 7, 2016) and the
date of trial (October 23, 2017), but that only 356 days were attributable to
the Commonwealth for the purposes of Rule 600. Trial Court Opinion,
-8-
J-S26042-19
10/11/2018, at 7. The Commonwealth does not dispute any of the time the
trial court attributed to it.
As to the 145 days which were excluded from the Rule 600 computation,
the defense took responsibility for a 29-day period between June 23, 2016,
and July 22, 2016.5 This brought the disputed time to a total of 116 days,
which the trial court divided into four separate periods, each of which is
independently dispositive in this appeal. However, the trial court gave little
to no explanation for the exclusion of that time:
 On June 7, 2016, Wilkins was charged, and on June 23, 2016, his
first preliminary hearing was reset to a later date. The trial court
ruled that this 16-day period was not chargeable to the
Commonwealth. See id., at 6.
 On October 6, 2016, all charges were held for court against Wilkins
until November 9, 2016. The trial court ruled that this 34-day
period was “not chargeable against the Commonwealth as
normal trial progression.” Id., at 7 (emphasis added).
 On November 9, 2016, Wilkins rejected a plea offer and a
scheduling conference was held on November 29, 2016. The trial
court ruled that this 20-day period was not chargeable to the
Commonwealth. Id.
 On March 30, 2017, the trial date was continued to May 15, 2017.
The trial court ruled that this 46-day period of delay was
attributable to the defense. Id.
____________________________________________
5 These 29 days were charged to the defense due to the non-availability of the
co-defendant. Further, the parties appear to differ on whether the trial court
included or excluded the three-day period between March 27, 2017, and March
30, 2017. Regardless, this three-day period is moot because it cannot bring
the total period of delay over the 365-day threshold of Rule 600.
-9-
J-S26042-19
In declining to charge these periods to the Commonwealth, the trial
court did not follow the procedures for excluding time under Rule 600. This
error relieved the Commonwealth of its due diligence obligations and deprived
Wilkins of his speedy trial rights.
The Commonwealth argues generally that all of the time was found to
be excludable “due to the trial court’s schedule and [Wilkins’] request for non-
mandatory discovery that the Commonwealth had no intention of introducing.”
Appellee’s Brief, at 8. However, the trial court’s Rule 1925(a) opinion does
not indicate that any of the excluded 116 days were attributed to judicial
delay. Nor does anything in the record support or even mention it as a reason
for excluding the time from Rule 600 computation. See Barbour, 189 A.3d
at 958. The Commonwealth identifies no evidence that it acted with due
diligence during the relevant times or any evidence that the defense or the
judiciary caused those delays.6 Each of the relevant periods will be addressed
in more detail below.
The first period at issue began on the date Wilkins was charged and
ended on the date that his first preliminary hearing was originally set. The
trial court gave no explanation in its Rule 1925(a) opinion as to why those 16
____________________________________________
6 The Commonwealth’s lack of evidence regarding judicial delay is curious in
light of the fact that it had asserted in its written response to Wilkins’ motion
that “court congestion” was a cause of all the periods now at issue. See
Commonwealth Response, 9/12/2017, at 2-3.
- 10 -
J-S26042-19
days were chargeable to the defense rather than to the Commonwealth. In
its brief, the Commonwealth does not attempt to justify the exclusion of this
time from Rule 600 computation, stating only that the trial court acted within
“in its discretion.” Appellee’s Brief, at 9.
The trial court erred because the Commonwealth did not carry its burden
of proving due diligence and there was no evidence of judicial or defense
related delay. The Rule 600 clock starts ticking once charges are filed, but
the trial court suspended the operation of the Rule without providing any
reason for doing so – which is not surprising since no valid basis is apparent
in the record.
Adding those 16 days to the total undisputed period of Commonwealth
delay (356 days) puts the run date of Wilkins’ trial beyond the 365-day period
allotted by Rule 600. See Mills, 132 A.3d at 325 (rejecting claim that period
between the filing of complaint and a status conference was excludable for
Rule 600 purposes as the normal progression of the case). For this reason
alone, Wilkins’ Rule 600 motion should have been granted.
It was also error for the trial court to exclude the time between October
6, 2016, and November 9, 2016 (34 days) on the ground that it was “not
chargeable against the Commonwealth as normal trial progression.” Trial
Court Opinion, 10/11/2018, at 7. Id. Exclusion of time on that sole basis is
the exact opposite of what Mills mandates. As discussed above, the case
stands for the proposition that “normal trial progression” counts toward the
- 11 -
J-S26042-19
time to commence trial under Rule 600. Mills, 132 A.3d at 324-25. The
exception is when the Commonwealth can show it exercised due diligence or
the trial court determines the delay was caused by the defense or the
judiciary. See id.7
The trial court here did not exclude the period based on a finding of due
diligence, judicial delay or defense delay. By ruling that those days had
passed in the normal progression of the case, the trial court erred as a matter
of law because such time must be included in the Rule 600 calculation. See
Mills, 132 A.3d at 325; see also Commonwealth v. Peterson, 19 A.3d
1131, 1134–35 (Pa. Super. 2011) (an abuse of discretion is committed “if in
reaching a conclusion the law is overridden or misapplied[.]”).
The period between November 9, 2016, and November 29, 2016, was
excluded without any explanation. Presumably, the trial court again found the
time to be attributable to the normal progression of the case. Mills holds that
such time is not a period of excludable “delay” for the purposes of Rule 600,
but rather must be charged to the Commonwealth.
____________________________________________
7 In the Mills concurrence, Justice Wecht expressed concern that trial courts
“too often make these judgments [regarding excludable time] without first
considering the Commonwealth’s due diligence obligation.” 132 A.3d at 326
(Wecht, J., concurring). Justice Wecht stressed that a recalculation of the
speedy trial period must always be done in accordance with the procedure
outlined in Rule 600, which “requires courts first to consider the
Commonwealth’s role in causing the delay at issue. Only if the Commonwealth
has discharged its duties with due diligence should a court consider other
causes for the delay.” Id.
- 12 -
J-S26042-19
As for the time between March 30, 2017, and May 15, 2017, the trial
court attributed the delay to the defense but did not provide any factual or
legal basis for that conclusion. This was the only disputed period which the
Commonwealth specifically addressed in its brief, asserting that the record
“supports the inference” that it was caused by the defense’s request for a
video which was non-mandatory discovery. Appellee’s Brief, at 12. The
Commonwealth refers to docket entries which indicate that it was ready for
trial during this span. Id.
Yet the record does not show if the trial court ever ruled that the
discovery was non-mandatory, whether the Commonwealth diligently sought
to obtain it, or whether the Commonwealth was ready for trial. In fact, the
docket suggests that the Commonwealth was not ready at that time. An entry
for March 30, 2017, reads, “Commonwealth Request for Continuance
Discovery Incomplete: Video to be passed – No DNA and Fingerprint testing.
Defendant in Custody.” (Docket Entry No. 72, 3/30/2017). Further, the
Commonwealth was not ready to proceed at the end of the subject period
(May 15, 2017) since it had to move for a continuance of trial on that date
“for further investigation.” Trial Court Opinion, 10/11/2018, at 7.
On appeal, the facts must be reviewed in the light most favorable to the
prevailing party but the only facts which may be considered are “limited to the
evidence on the record of the Rule 600 evidentiary hearing and the findings
of the trial court.” Kearse, 890 A.2d 388, 390 (quoting Commonwealth v.
- 13 -
J-S26042-19
Williams, 876 A.2d 1018, 1020 (Pa. Super. 2005). Here, there is no basis in
the reviewable facts on which to affirm the trial court’s decision to exclude the
time between March 30, 2017, and May 15, 2017.
To conclude, the Commonwealth admits that it caused 356 days of
delay, which is just nine days’ shy of the end of the speedy trial period. Each
of the four disputed periods of time (16, 34, 20 or 46 days) is dispositive, as
the addition of any one of those periods to the total sum would constitute a
violation of Rule 600. All of that time was erroneously excluded so Wilkins’
speedy trial rights were violated and his convictions cannot be sustained.
Judgment of sentence vacated. Appellant discharged. Jurisdiction
relinquished.
President Judge Panella joins the memorandum.
President Judge Emeritus Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/19
- 14 -