Com. v. Herring, C.
271 A.3d 911
Pa. Super. Ct.2022Background
- Appellant Cole Herring was charged with first-degree murder and related offenses for the Nov. 27, 2017 stabbing and burning death of a 15-year-old found in leaves behind his apartment; investigators recovered bloodied clothing, bloody scissors, surveillance video of Herring wearing a Puma sweatshirt near the dumpster, extensive Facebook messages between Herring and the victim, and witnesses reporting Herring admitted the crime.
- Herring’s father, Colon “Kenny” Swaringer, went to police the morning after the killing reporting that Herring had confessed and shown him the body; defense theory was that Swaringer was the true perpetrator and had instructed Herring to dispose of the body.
- Procedural timeline: criminal complaint filed Nov. 29, 2017 (mechanical run date Nov. 29, 2018). Defense conceded 175 days attributable to itself, yielding an adjusted run date of May 23, 2019. Trial date changes followed a judge reassignment (early 2019), defense continuances to consider pleas, and a COVID-19 judicial emergency delaying trial to Nov. 16, 2020.
- Pretrial, defense sought dismissal under Pa.R.Crim.P. 600 and sought to admit Swaringer’s prior aggravated-assault convictions to support third‑party guilt; a motions judge applied a heightened similarity standard (pre‑Yale) and excluded the convictions; trial proceeded as a bench trial and Herring was convicted and sentenced to life without parole.
- On appeal, Herring argued (1) the trial court failed to evaluate the Commonwealth’s due diligence over the life of the case under Harth and (2) the court applied an incorrect standard in excluding third‑party guilt evidence (Swaringer’s priors); the Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Herring) | Held |
|---|---|---|---|
| Whether Rule 600 dismissal was required because Commonwealth failed to exercise due diligence | Commonwealth: it was trial‑ready; delays after readiness were judicial or defense-caused (judge reassignment, defense continuances, COVID suspension) and thus excludable | Herring: under Harth the court must assess due diligence across the life of the case; Commonwealth did not show due diligence for judicial delays and some continuances were wrongly excluded | Court: affirmed denial of Rule 600 motion — Commonwealth acted with due diligence; delays were judicial/defense-caused or otherwise excludable and trial was timely |
| Whether exclusion of Swaringer’s prior aggravated‑assault convictions violated Yale and deprived Herring of third‑party guilt evidence | Commonwealth: priors were dissimilar, more prejudicial than probative, and would confuse/mislead; evidence should be excluded | Herring: Yale requires only relevance under Rules 401/403 (not heightened 404(b) similarity); priors were material to show Swaringer as alternative perpetrator or motive to fabricate | Court: evidence was not sufficiently similar/relevant under Yale and exclusion was harmless given overwhelming inculpatory evidence against Herring |
Key Cases Cited
- Commonwealth v. Yale, 249 A.3d 1001 (Pa. 2021) (third‑person guilt evidence governed by Rules 401–403; not subject to Rule 404(b) propensity analysis)
- Commonwealth v. Harth, 252 A.3d 600 (Pa. 2021) (Commonwealth must demonstrate due diligence over the life of the case before excluding time as "judicial delay")
- Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017) (time a trial‑ready prosecutor must wait for court scheduling may be treated as delay not attributable to the Commonwealth)
- Commonwealth v. Watson, 140 A.3d 696 (Pa. Super. 2016) (appellate review of Rule 600 limited to record of evidentiary hearing and trial court findings)
- Commonwealth v. Taylor, 209 A.3d 444 (Pa. Super. 2019) (standards for harmless error analysis)