Commonwealth v. Harth, K., Aplt.Commonwealth v. Harth, K., Aplt.
JUSTICE TODD
In this appeal by allowance, we consider whether a trial court may rely upon its own unavailability as justification for denying a defendant‘s motion to dismiss pursuant to the speedy trial provisions of
On January 22, 2015, the Commonwealth filed complaints against Appellant Khalid M. Harth and co-defendant Darren Brown in connection with their involvement in a home
Relevant to the instant appeal, on April 7, 2015, the trial court held a scheduling conference at which it slated Appellant‘s trial for September 28, 2015, and ordered the Commonwealth to produce discovery by June 22, 2015. In its docket entry related to the scheduling conference, the court noted: “Defense needs videos, FBI extract, 2010 video[s], discovery for DC-14-15-05913[,] and color photo[s.]” Criminal Docket in Commonwealth v. Harth, No. CP-51-CR-0002122-2015 (hereinafter “Criminal Docket“), at 7 (unpaginated). Additionally, the court documented that the “Commonwealth has no medical records,” and it scheduled a conference for June 22, 2015, to address the status of discovery. Id. According to a docket entry from June 22, 2015, however, the Commonwealth was not ready to produce Indicting Grand Jury (“IGJ“) discovery at that time. Thus, the court listed the case for a discovery status conference on July 28, 2015, but maintained the September 28, 2015 trial date.
Thereafter, the Commonwealth requested a continuance for disclosing discovery, which the court granted on July 28, 2015, directing the Commonwealth to produce IGJ discovery by July 30, 2015. Pertinently, on July 30, 2015, the trial court rescheduled Appellant‘s trial for December 14, 2015, in light of the Pope‘s impending visit to Philadelphia in September 2015; the associated docket entry provides, in relevant part: “09/28/15 date is blocked, POPE‘S VISIT.”1 Id. at 9.
On his scheduled trial date of May 23, 2016, Appellant filed a motion to dismiss pursuant to
On June 2, 2016, the trial court presided over the scheduled hearing on Appellant‘s Rule 600 motion, and rescheduled his trial for November 28, 2016. At the hearing, Appellant‘s counsel argued that the Commonwealth had failed to exercise due diligence in prosecuting the case because it did not disclose relevant discovery, including three disks worth of police records, several police documents, and property receipts, in a timely manner. N.T. Rule 600 Hearing, 6/2/16, at 3-5. Relatedly, counsel asserted that the Commonwealth had not been ready to proceed to trial in January 2016 when it refused to sever Appellant‘s case from Brown‘s, given that it had not theretofore provided “extremely important discovery” to the defense. Id. at 6. Counsel also contended that the defense team learned that outstanding discovery existed only because counsel coincidentally overheard a conversation in the courthouse hallways between detectives.
Assistant District Attorney (“ADA“) Matthew Gehrke, who was reassigned as the prosecutor on Appellant‘s case shortly before the Rule 600 hearing,4 countered that Appellant‘s counsel failed to notify him that they had not been provided with certain discoverable items. See id. at 7. ADA Gehrke also argued that the Commonwealth‘s refusal to sever Appellant‘s case from Brown‘s was not indicative of a lack of due diligence, and highlighted that the case was originally scheduled for trial in September 2015, but was relisted for January 2016 in light of the Pope‘s visit to Philadelphia. Thus, ADA Gehrke asserted that that period of time was excludable under Rule 600, and not
On June 22, 2016, the court denied Appellant‘s motion, reasoning:
The period from when the first complaint was filed on or about January 22[,] 2015, and the current date is a total of approximately 516 or [5]17 days and subtracting −− or roughly speaking, 369 days of excusable or extendable time, there are a total of 147 days attributable to the Commonwealth, more or less, and this is within the limit of 365 days, and [Appellant] has not shown that the Commonwealth did not exercise due diligence, and therefore the motion to dismiss is denied.
N.T. Hearing, 6/22/16, at 6. Notably, Appellant‘s counsel sought clarification from the court as to the impact of the Commonwealth‘s failure to fulfill its discovery obligation, resulting in the following exchange:
[Appellant‘s counsel]: Thank you, Your Honor. Just for the record, so it‘s my understanding that . . . you are considering the fact that the [c]ourt was on trial and not considering the fact that discovery was not complete?
[Trial court]: Well, it doesn‘t matter to me. If the [c]ourt‘s on trial, the [c]ourt‘s on trial. I can‘t hold that against the Commonwealth. That‘s considered extendable time.
[Appellant‘s counsel]: Right, but discovery wasn‘t complete, and you‘re saying that that‘s not included?
[Trial court]: Well, I took it into consideration, but like I said, what‘s just as dispositive to me is the fact that I -- I‘m not going to get into -- locked into a response. I‘m taking that into consideration, the fact that I couldn‘t have done the case if I wanted to. So that‘s a big factor that I‘m looking at.
Id. at 6-7.
The case proceeded to trial on November 28, 2016.5 However, on that morning, the Commonwealth presented the defense with a discovery packet, which included 15
The following day, the trial court denied Appellant‘s second Rule 600 motion, incorporating by reference the findings it had previously rendered, and reiterating its prior reasoning. See N.T. Trial, 11/29/16, at 23. The court also explained that, in its view, Appellant “ha[d] not shown that the Commonwealth did not exercise due diligence,” id., and noted that, in any event, even if the Commonwealth was not ready to proceed, it was not “going to hold the Commonwealth responsible,” as the court was engaged in other matters which precluded it from holding Appellant‘s trial at an earlier date, id. at 24.
Ultimately, Appellant‘s jury trial proceeded, spanning November 30, 2016 through December 2, 2016, on which date the jury convicted him of robbery, burglary, and related offenses. He was sentenced to an aggregate term of 8 to 16 years imprisonment, followed by 6 years probation, plus restitution.
In its opinion filed pursuant to
In a unanimous, unpublished memorandum opinion, a three-judge panel of the Superior Court vacated Appellant‘s judgment of sentence and remanded. Commonwealth v. Harth, 683 EDA 2017 (Pa. Super. filed Oct. 16, 2019). As an initial matter, the Superior Court noted that, because the Commonwealth filed the complaint against Appellant on January 22, 2015, the “mechanical run date” was January 22, 2016.7 The court then observed that, on June 22, 2015, the original due date for producing discovery, the trial court granted the Commonwealth an extension until July 28, 2015, and another extension to July 30, 2015. The Superior Court, thus, reasoned that the Commonwealth was not ready to disclose discovery on those dates, such that the delay from June 22, 2015 to July 30, 2015 did not amount to excludable or excusable delay.
The Superior Court next found that the trial court‘s rescheduling of the trial from September 28, 2015 to December 14, 2015, due to the Pope‘s visit to Philadelphia, was beyond the Commonwealth‘s control; nevertheless, in the court‘s view, the record was unclear as to whether that 77-day period constituted excusable delay, in light of the trial court‘s failure to render a determination with respect to the Commonwealth‘s due diligence in complying with its discovery obligations. Similarly, the Superior Court observed that the trial court twice rescheduled trial, without explanation, first moving it to January 11, 2016, then to January 25, 2016, for a total delay of 42 days. The court found that, in both instances, the record lacked any indication of the Commonwealth‘s readiness to proceed to trial, and, moreover, demonstrated that “the Commonwealth had still not
The Superior Court also expressed uncertainty with respect to whether the 118-day delay from January 25, 2016 to May 23, 2016, which stemmed from the unavailability of co-defendant Brown‘s counsel and the Commonwealth‘s refusal to sever Appellant‘s case, constituted excusable delay. Indeed, the court noted that, while the record once more revealed that the Commonwealth had yet to complete discovery during that timeframe, the trial court neglected to make a due diligence determination regarding the Commonwealth‘s failure in that respect. The Superior Court likewise observed that the delay from May 23, 2016 to May 25, 2016 — though beyond the Commonwealth‘s control — occurred when discovery remained outstanding, as evinced by the fact that the Commonwealth provided audio discovery to the defense on May 25. Additionally, the court found that the record failed to illuminate whether the Commonwealth was ready to proceed to trial on June 2, 2016 and June 22, 2016, or the reason the trial court rescheduled Appellant‘s trial for November 28, 2016, more than five months later. The Superior Court reasoned that, during that time period, the Commonwealth had seemingly neglected to fulfil its discovery obligations, as it later provided Appellant with 15 new documents on the morning of trial in November 2016. The court nonetheless concluded that it was unable to discern whether the 187-day period from June 22, 2016 to November 28, 2016 amounted to excusable delay, given that the trial court neglected to assess the Commonwealth‘s due diligence in its efforts to provide discovery to the defense.
Ultimately, the Superior Court declared that it was “unable to calculate the adjusted run date for Appellant‘s trial,” opining that the record was “inconsistent, at best.” Id. at 30. In this vein, the court emphasized that the trial court “conducted no due diligence analysis
Appellant subsequently filed a petition for allowance of appeal, and we granted review on the following issue:
Was the Superior Court‘s order to remand for a new hearing on the Commonwealth‘s due diligence in error, insofar as it contradicts precedent and impermissibly gives the Commonwealth a second chance to prove diligence, when the Commonwealth had a full and fair opportunity to do so and failed to meet its burden?
Commonwealth v. Harth, 235 A.3d 275 (Pa. 2020) (order).
Before us, Appellant asserts that the Superior Court erred in remanding the case to the trial court for a new Rule 600 hearing, rather than vacating his conviction and discharging him. Appellant argues that the Superior Court‘s actions in that regard compounded the trial court‘s failure to render judgment with respect to the issue of the
Moreover, according to Appellant, the record is not only devoid of evidence that the Commonwealth acted with due diligence, but is also brimming with proof that the Commonwealth failed to disclose discovery in a timely manner. Specifically, Appellant maintains that the available evidence, including the docket entries and the transcripts from the Rule 600 hearings, readily establishes that the Commonwealth had not yet fully disclosed discovery in September 2015; had likewise not fulfilled its discovery obligations as of December 2015 and January 2016; had not completed discovery through May 2016; and only finished providing discovery to the defense in November 2016, when, on the morning of trial, it produced 15 new documents. Appellant contends that, in addition to making no effort to prove due diligence, ADA Gehrke admitted that he was unaware of what discovery had been disclosed to the defense prior to the case being reassigned to him, revealing that he made no effort to discern as much. Appellant submits that “[t]he
Appellant next avers that the Superior Court‘s reliance on Selenski, supra, in remanding this case for further consideration was misplaced because, therein, “‘[n]either the parties nor the [trial] court referenced due diligence at argument on the appellant‘s motion to dismiss‘” — circumstances which led this Court to conclude that “‘the proper action would have been a remand to the trial court to determine whether the Commonwealth exercised due diligence pursuant to Rule 600.‘”8 Id. at 18 (quoting Selenski, 994 A.2d at 1089). Hence, in Appellant‘s view, the failure of any party in Selenski to raise due diligence was the determinative factor on which our Court relied in finding that remand was justified. Conversely, here, Appellant stresses that, at both Rule 600 hearings, his counsel vociferously argued that the Commonwealth failed to act with due diligence throughout the case, but the Commonwealth nevertheless neglected to address that issue. Appellant contends that the Commonwealth‘s failure to provide evidence of its due diligence at either hearing, coupled with “the trial court‘s failure to resolve an issue squarely presented to it,” does not entitle the Commonwealth to a third opportunity to meet its burden of proof. Id. at 19.
Appellant suggests that the outcome here should, instead, be guided by our decision in Commonwealth v. Akridge, 422 A.2d 487 (Pa. 1980) (per curiam), wherein we reversed the Superior Court‘s order remanding for an evidentiary hearing on the question of whether, at two prior hearings, the Commonwealth had established due diligence under
Finally, Appellant asks us to clarify the proper standard for disposing of Rule 600 motions, and the proper order in which the trial courts should consider the issues implicated in a motion to dismiss pursuant to Rule 600, by adopting the reasoning and procedure espoused by Justice Wecht in his concurring opinion in Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).10 Indeed, in Appellant‘s view, Justice Wecht properly
Appellant maintains that the process delineated in the Mills concurrence comports with the language of Rule 600 and the comment thereto, as well as Rule 600 jurisprudence. Indeed, in that latter regard, Appellant contends that, “[w]hile prior cases have addressed the concept of ‘judicial delay’ and have held that such delay will not prompt dismissal of charges under Rule 600, all of those cases have been premised upon a finding that the Commonwealth had been diligent.” Id. at 25-26 (citing Commonwealth v. Maglieri, 889 A.2d 604, 607 (Pa. Super. 2005) (“It is long-established that judicial delay may serve as a basis for extending the period of time within which the Commonwealth may commence trial where ‘the Commonwealth is prepared to commence trial prior to the expiration of the mandatory period but the court[,] because of scheduling difficulties or the like[,] is unavailable.‘” (quoting Commonwealth v. Shelton, 364 A.2d 694, 699 (Pa. 1976))); see also Mills, 162 A.3d at 325 (“[W]here a trial-ready prosecutor must wait several months due to a court calendar, the time should be treated as ‘delay’ for which the Commonwealth is not accountable. Here, however, the Commonwealth does not argue that it was prepared for trial during the 174 days at issue.“). Moreover, Appellant argues that permitting the Commonwealth to evade its Rule 600 obligations by citing to
The Commonwealth counters that the Superior Court correctly remanded the case, given the trial court‘s failure to make the necessary due diligence determinations at the hearings on Appellant‘s Rule 600 motions. The Commonwealth likens the instant matter to Selenski, claiming that, in both cases, the trial court “‘los[t] sight of the rule‘s overarching principles and thus fore[went] a Rule 600 due diligence analysis.‘” Commonwealth‘s Brief at 11 (quoting Selenski, 994 A.2d at 1089) (alterations original). However, in the Commonwealth‘s view, this Court‘s de novo review in the interest of judicial economy would be improper here as compared to Selenski. On that point, the Commonwealth contends that the issue of due diligence cannot be evaluated based on the current record, maintaining that the indications on the docket that it had not fully disclosed discovery at various points throughout the life of the case are not a sufficient basis on which to render a due diligence determination. The Commonwealth further claims that, because a grand jury was involved in the initiation of this case, any delay related to discovery of grand jury material would not have constituted a lack of due diligence unless it was within 60 days of the start of trial, pursuant to Phila.Crim.R. *556.2 (delineating the process for cases in Philadelphia County initiated by an IGJ, including
The Commonwealth next argues that, “under Rule 600, outstanding discovery only leads to includable time if the lack of discovery caused a delay.” Commonwealth‘s Brief at 13 (emphasis original) (citing
The Commonwealth also complains that discharge of the case would have been unfair, in light of the trial court‘s commentary indicating that it did not matter whether
[a]fter the [trial] court explained that it did not need to consider any potential discovery issues (which may have implicated the Commonwealth‘s due diligence) with respect to periods of judicial delay, the prosecutor had no reason to delve into the specific discovery outstanding during those times and the reason it was outstanding.
Commonwealth‘s Brief at 16. In any event, the Commonwealth avers that it provided the trial court with written calculations of Rule 600 time at the June 2, 2016 hearing, and argued that the defense failed to tender a discovery request with respect to certain items or to alert the newly-assigned prosecutor, ADA Gehrke, that it had not been previously provided with such discovery.
Relatedly, the Commonwealth contends that the trial court sought to expedite the June 2, 2016 hearing, further undercutting its ability to provide evidence pertaining to due diligence. According to the Commonwealth, the trial court‘s failure to ask specific questions about discovery, and the fact that it declined an offer by the defense to make copies of discovery letters or other evidence, were products of the trial court‘s use of an improper standard in reviewing Appellant‘s motion. The Commonwealth posits that, if the trial court had been operating under the correct standard, it “would not have truncated the hearing and would have delved into when specific pieces of discovery were outstanding and why, and whether the discovery issues in fact caused the trial to be delayed.” Id. at 17. In this regard, the Commonwealth suggests that what, in its view, amounts to an incomplete record is the result of the trial court‘s deficiencies, rather than its own.
Turning to Appellant‘s second Rule 600 motion, the Commonwealth claims that it was essentially blindsided by the defense‘s argument that it had not been previously provided with certain items included in the discovery packet on the morning of the
Next, the Commonwealth disputes Appellant‘s contention that Akridge, supra, is instructive, highlighting that Akridge is a per curiam order with no precedential value. See Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2009) (“This Court has made it clear that per curiam orders have no stare decisis effect.“). The Commonwealth avers that it would have been improper for the Superior Court to rely upon Akridge whilst ignoring Selenski. In any case, the Commonwealth suggests that Akridge is distinguishable from the case sub judice, as evinced by the Superior Court‘s reasoning in that decision. See Commonwealth v. Akridge, 419 A.2d 18 (Pa. Super. 1980), rev‘d, 422 A.2d 487 (Pa. 1980). Indeed, the Commonwealth explains that the Superior Court in Akridge remanded for further evidentiary proceedings “[b]ecause no evidence was presented,” and the court was, therefore, “unable to assess the merits” of the Commonwealth‘s form petition filed under former Rule 1100; notably, rather than present evidence before the trial court, the Commonwealth had merely complained that a witness was not available and a police officer was ill. Id. at 21. The Commonwealth proffers that we then overturned the Superior Court‘s remand order, noting that it would have been tantamount to allowing the Commonwealth a second opportunity to present evidence relative to its assertions that a witness was unavailable and an officer was ill. The Commonwealth reasons that, here, to the contrary, the Superior Court ordered a remand because the trial court failed to undertake a due diligence analysis — not because the Commonwealth failed to present evidence. According to the Commonwealth, “[t]he
Finally, the Commonwealth contends that Appellant‘s request for us to adopt the view espoused by Justice Wecht in his concurring opinion in Mills is beyond the scope of this appeal. In this vein, the Commonwealth claims that the question which our Court accepted for review merely required the parties to address “whether the Superior Court appropriately ordered a remand,” positing that the question “does not involve review of the Superior Court‘s decision that the trial court misapplied Rule 600 or consideration of the way . . . the trial court evaluated due diligence.” Id. at 22-23. The Commonwealth also avers that Appellant has failed to clearly explicate the actions which he desires us to undertake, as well as the extent to which adoption of the Mills concurrence would legitimately impact the outcome of this matter. In the Commonwealth‘s view, the plain language of Rule 600, even if read in conjunction with the Mills concurrence, requires the trial court to consider the cause of a delay before assessing the Commonwealth‘s due diligence. Essentially, the Commonwealth argues that the Mills concurrence is immaterial to this matter, and, therefore, urges us to reject Appellant‘s invitation that we formally adopt it.
As an initial matter, we reject the Commonwealth‘s contention that Appellant‘s invitation for us to adopt the Mills concurrence as the appropriate construction of Rule 600(C)(1) is beyond the scope of this appeal. Although the Superior Court did not address the propriety of the standard articulated in the Mills concurrence — namely, that “due
Hence, consideration of the standard enunciated by Justice Wecht in Mills is not beyond the scope of our grant of
As we have previously explained, this Court adopted
In light of the Supreme Court‘s decision in Barker, this Court found it prudent “to formulate a rule of criminal procedure fixing a maximum time limit in which individuals accused of a crime shall be brought to trial,” reflecting the dual purposes of “more effectively protect[ing] the right of criminal defendants to a speedy trial,” and the efficient administration of justice. Commonwealth v. Hamilton, 297 A.2d 127, 133 (Pa. 1972). Accordingly, we adopted Rule 1100, subsequently renumbered Rule 600.
As noted above, the most recent version of Rule 600, which went into effect on July 1, 2013, 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.”
In Mills, supra, we examined the meaning of “delay” in the computational instructions in Rule 600(C), as revised in 2013. Therein, the Commonwealth filed a criminal complaint against the appellant on June 6, 2011, charging him with multiple offenses. At a status conference held on September 27, 2011, the trial court initially slated the appellant‘s trial to begin on April 2, 2012, but, following a second status conference on March 20, 2012, trial was continued per the Commonwealth‘s request. Mills, 162 A.3d at 324. Notably, in seeking the continuance, a prosecutor informed the trial court “that the Commonwealth was not yet in a position to provide complete discovery, the assigned assistant district attorney had a planned vacation on the then-scheduled trial date, and DNA testing of genetic material from [the appellant] was contemplated.” Id. Thus, the trial court rescheduled the appellant‘s trial for September 10, 2012. After his trial was again continued, the appellant filed a Rule 600 motion to dismiss, which the trial court ultimately granted.
The Commonwealth appealed the trial court‘s decision, and, before the Superior Court, the parties primarily focused upon the propriety of the trial court‘s inclusion of the 174-day period from September 27, 2011 to March 20, 2012 in its computation of Rule 600 time. Specifically, the Commonwealth asserted that such time was excludable and should not have been attributed to it, essentially contending that the revisions to Rule 600(C) “radically alter[ed] the primary directive that trial is to commence within 365 days,” and that “the instructions afford the prosecution leeway to proceed, without any diligence, to cause up to 365 days of delay in the commencement of any trial.” Id. For his part, the appellant claimed that the Commonwealth‘s construction of the rule rendered it
On appeal, we rejected the construction of Rule 600(C) adopted by the Superior Court, instead determining that “time attributable to the normal progression of a case simply is not ‘delay’ for purposes of Rule 600.” Mills, 162 A.3d at 325 (citing Commonwealth v. Morgan, 398 A.2d 972, 975 (Pa. 1972) (“[A]ny occurrences between the filing of the complaint and the commencement of the trial which did not affect the time in which the trial was commenced[ ] is . . . not properly considered as a ‘delay in the proceedings[.]‘“)). In so doing, we noted that trial courts retain the discretion “to differentiate between time necessary [for] ordinary trial preparation and judicial delay arising out of the court‘s own scheduling concerns,” such that, “where a trial-ready prosecutor must wait several months due to a court calendar, the time should be treated as ‘delay’ for which the Commonwealth is not accountable.” Id. (emphasis added). Accordingly, we reasoned that, because the Commonwealth had not argued that it was prepared for trial during the time period at issue, the trial court properly included that time in its Rule 600 calculation; thus, we reversed the Superior Court‘s order and remanded for reinstatement of the trial court‘s dismissal order. Id.
As previously noted, Justice Wecht authored a concurring opinion, in which he addressed the concept of “judicial delay,” astutely observing that, in distinguishing between time which passes in the normal course of a criminal case and time which elapses due to a court‘s burdensome calendar, “our trial courts too often make these
Characterization and delineation of the contested time periods is not always an easy task. Difficulty can arise, as it did in this case, when both “judicial delay” and the Commonwealth‘s due diligence obligation appear as options for the court. However, these two options are not equal, to be selected at the court‘s discretion. Nor can “judicial delay” be substituted for due diligence. Rather, 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. Justice Wecht further opined that, notwithstanding the inherent ambiguity of the term “delay” evidenced by the parties’ competing interpretations thereof, “a linear reading of [Rule 600] requires courts first to consider the Commonwealth‘s role in causing the delay at issue,” and only after the Commonwealth proves that it acted with due diligence throughout the case should a court consider other causes for delay in bringing a defendant to trial. Id. Moreover, Justice Wecht explained that his view in this regard comports with the comment to Rule 600, which states that subsection (C)(1) “makes it clear that any delay in the commencement of the trial that is not attributable to the Commonwealth when the Commonwealth has acted with due diligence must be excluded from the computation of time.” Pa.R.Crim.P. 600, cmt. (emphasis added). Thus, Justice Wecht concluded that, in computing time pursuant to Rule 600(C)(1), “‘[j]udicial delay’ becomes relevant only after the Commonwealth has proven its compliance with the due diligence mandate.” Mills, 162 A.3d at 327 (Wecht, J., concurring).
Presently, we find that the methodology enunciated by Justice Wecht in Mills encapsulates Rule 600‘s dual purpose of protecting defendants’ constitutional right to a speedy trial and society‘s countervailing right to effective prosecution of criminal cases, Commonwealth v. Barbour, 189 A.3d 944, 955 (Pa. 2018), while simultaneously ensuring
Indeed, the text of Rule 600(C)(1) requires that “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.”
Moreover, as we have previously explained, we may consult the explanatory comment of the committee which worked on the rule in determining the proper construction and application thereof. Commonwealth v. Lockridge, 810 A.2d 1191, 1195 (Pa. 2002). Pertinently in this regard, the comment to Rule 600 notes that “the inquiry for a judge in determining whether there is a violation of the time periods in paragraph (A) is whether the delay is caused solely by the Commonwealth when the Commonwealth has failed to exercise due diligence.” Pa.R.Crim.P. 600, cmt. (citations omitted). However,
Relatedly, the construction of Rule 600(C)(1) espoused in the Mills concurrence and championed by Appellant is also harmonious with our prior jurisprudence interpreting Rule 600 and its predecessor. See, e.g., Barbour, 189 A.3d at 947 (“Absent a demonstration of due diligence, establishing that the Commonwealth has done everything reasonable within its power to guarantee that [the] trial begins on time, the Commonwealth‘s failure to bring the defendant to trial before the expiration of the Rule 600 time period constitutes grounds for dismissal of the charges with prejudice.” (citation, quotation marks, and internal citation omitted; brackets original)); Burno, 154 A.3d at 793-94 (noting that, generally, “delays in bringing a capital defendant to trial that result from appellate resolution of pretrial motion rulings” is considered excusable time not attributed to the Commonwealth in Rule 600 time computations, “so long as the Commonwealth acted with due diligence at all relevant times“); Hill, 736 A.2d at 587 (“If a delay is created, in order to establish that the delay is excludable, the Commonwealth must demonstrate, by a preponderance of the evidence, that it exercised due diligence in opposing or responding to the pretrial motion.“); Hawk, 597 A.2d at 1145 (“[W]e find that the Commonwealth should be held to the requirement that it exercise due diligence at all times during the pendency of a case.“).
Accordingly, we hold that, in ruling on a defendant‘s Rule 600 motion to dismiss, a trial court must first determine whether the Commonwealth has met its obligation to act with due diligence throughout the life of the case; if the Commonwealth meets its burden of proving due diligence, only then may the trial court rely upon its own congested calendar or other scheduling problems as justification for denying the defendant‘s motion. Otherwise, the due diligence component of Rule 600 “would have little, if any, meaningful import.” Mills, 162 A.3d at 327 (Wecht, J., concurring).15
Pertinently, in Selenski, we granted allowance of appeal to address the propriety of the Superior Court‘s determination that the Commonwealth acted with due diligence in bringing a defendant to trial on escape charges while it was pursuing an interlocutory appeal in the defendant‘s initial case for homicide. Upon conclusion of the Commonwealth‘s appeal, the defendant filed a motion to dismiss the escape charges under Rule 600, which the trial court granted, concluding that the two cases against the defendant had not been properly consolidated. The Commonwealth appealed, and the
On further review, we affirmed the Superior Court, but nonetheless explained that, while the Superior Court properly determined that the trial court misconstrued Rule 600, it compounded the trial court‘s error by similarly neglecting to consider due diligence and focusing its inquiry, instead, on the principles of joinder. We reasoned that the proper action once the Superior Court identified the lower court‘s misconstruction of the rule “would have been” for it to “remand to the trial court to determine whether the Commonwealth exercised due diligence pursuant to Rule 600.” Id. Nevertheless, in the interest of judicial economy, we declined to remand and opted to “consider, de novo, whether the record support[ed] finding the Commonwealth exercised due diligence.”16 Id. Accordingly, Selenski clearly supports our decision to consider the issue of due diligence de novo, based on the record currently before us.
Moreover, while not binding, our disposition in Akridge, like our decision in Selenski, weighs against remand here. As the parties highlight, in Akridge, we concluded that the Superior Court‘s order of remand for the trial court to further consider the Commonwealth‘s due diligence was improper, given that the Commonwealth had already enjoyed the opportunity to meet its burden of proving due diligence. We found that it would have been unjust to provide the Commonwealth with another attempt to fulfill its burden. Here, we reject the Commonwealth‘s assertion that the record is deficient and that an additional hearing is appropriate to permit it to present evidence with respect to its due diligence. Plainly, the Commonwealth was apprised of Appellant‘s challenges to its due diligence at the two prior Rule 600 hearings, but declined to proffer evidence to
In any case, remand would legitimately serve only to allow the trial court to apply the correct standard – ensuring the burden of proof is on the Commonwealth – given that an additional hearing is not warranted. Indeed, in this regard, the trial court would merely be tasked with reexamining the record and rendering a due diligence determination based thereupon; we are perfectly capable of undertaking such an endeavor in the name of judicial economy and expediency. Accordingly, we find that both Selenski and Akridge amply support our decision to forego a remand and, instead, consider the inquiry of the Commonwealth‘s due diligence de novo.
The Commonwealth‘s further arguments in favor of remand are similarly unpersuasive. To the extent that the Commonwealth attempts to displace blame for its failure to meet its burden of proving due diligence on the trial court, we find that, despite the trial court‘s apparent desire to expedite the June 2, 2016 Rule 600 hearing, the Commonwealth was not precluded from providing explanation or evidence regarding due diligence — a responsibility for which it was undoubtedly aware.17 Similarly, the
Likewise, contrary to the Commonwealth‘s assertion, remand is not necessary to clarify the record with respect to if and when discovery was outstanding in the case. While the Commonwealth asserts that it should be afforded the opportunity to establish that outstanding discovery was either non-mandatory, not requested by the defense, or IGJ material which was not required to be disclosed pursuant to Phila.R.Crim. *556.2, it overlooks that it had the chance at two prior hearings to establish such factors but neglected to offer any due diligence evidence, such as by demonstrating that it was not required to disclose certain items of discovery. To paraphrase Appellant: we are not presented with a defective record in need of clarification; rather, we have a record which documents the Commonwealth‘s failure to meet its burden of proving due diligence. See Appellant‘s Reply Brief at 2. Accordingly, we proceed to address the merits of Appellant‘s Rule 600 motions — specifically, the question of the Commonwealth‘s due diligence.
Thus, in our view, the record thoroughly establishes that the Commonwealth neglected to fulfill its discovery obligations, a failure which we have previously held constitutes a lack of due diligence. Commonwealth v. Edwards, 595 A.2d 52 (Pa. 1991) (finding that the Commonwealth‘s intentional or negligent failure to provide discovery amounted to a lack of due diligence which justified dismissal of the defendant‘s case). As the record here amply demonstrates that the Commonwealth failed to complete its
Order and judgment of sentence reversed. Appellant is discharged.
Justices Saylor, Donohue and Wecht join the opinion.
Justice Dougherty files a dissenting opinion in which Chief Justice Baer and Justice Mundy join.
Notes
(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 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.
(b) The determination of the judge or issuing authority is subject to review as provided in paragraph (D)(3).
(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, or the defendant if unrepresented, 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.