COMMONWEALTH OF PENNSYLVANIA v. KHALID M. HARTH
No. 13 EAP 2020
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
June 22, 2021
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. [J-102-2020]
JUSTICE TODD
Appeal from the Judgment of the Superior Court entered on October 16, 2019 at No. 683 EDA 2017 vacating and remanding the Judgment of Sentence entered on February 3, 2017 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0002122-2015.
ARGUED: December 1, 2020
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 invasion and armed robbery 11 days prior. Thereafter, on February 24, 2015, a grand jury indicted Appellant on multiple counts of, inter alia, robbery, burglary, conspiracy to commit robbery, and conspiracy to commit burglary.
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
The Commonwealth subsequently filed another motion for continuance, which the trial court granted on August 21, 2015, without explanation, and rescheduled Appellant‘s trial for January 11, 2016, noting in a docket entry that “IGJ discovery [needed] to be passed.”2 Id. Yet, by order dated December 29, 2015, the trial court rescheduled Appellant‘s trial for January 25, 2016, again providing no explanation. Thereafter, because counsel for Appellant‘s co-defendant was scheduled for trial in an unrelated matter on January 25, 2016, and the Commonwealth refused to sever the defendants’ cases, the trial court again rescheduled the trial for May 23, 2016. Id. at 11.
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 attributable to the Commonwealth. According to ADA Gehrke, Appellant‘s trial was “well within the speedy trial” rule. Id. at 8.
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 exhibits that the defense claimed were previously undisclosed. Hence, Appellant‘s counsel tendered a second motion to dismiss pursuant to Rule 600(A), arguing that the Commonwealth failed to exercise due diligence, as it neglected to share discoverable evidence with the defense, despite having such evidence in its possession since early in the case. The parties briefly discussed the record of outstanding discovery, as well as each party‘s respective intent to utilize the items disclosed that morning in the course of the trial. Thereafter, the trial court indicated that it would take Appellant‘s motion under advisement, and asked the Commonwealth for a final response to the motion. The Commonwealth responded: “I mean, Your Honor, frankly, you already denied the motion. There hasn‘t been a change of circumstance. The last continuance was not on the Commonwealth. So it was denied.” N.T. Trial, 11/28/16, at 24. The Commonwealth provided no explanation with respect to its failure to disclose discovery throughout the life of the case or, more specifically, regarding its failure to provide the defense with the 15 new exhibits which triggered Appellant‘s second Rule 600 motion on the morning of trial.
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.
Appellant filed a timely notice of appeal with the Superior Court, asserting, inter alia, that the trial court erred in denying his Rule 600 motions because his trial commenced more than a year after the Commonwealth filed its criminal complaint. In that regard, Appellant maintained that the trial court incorrectly calculated the number of days which amounted to excusable time; that the Commonwealth‘s delay in disclosing discovery was not excusable; and that discovery was outstanding on the scheduled trial date in May 2016, and remained so in November 2016, when the Commonwealth provided the defense with discovery on the morning of trial.
In its opinion filed pursuant to
Thus, the trial court concluded that the Commonwealth complied with Rule 600 and that Appellant‘s claim to the contrary lacked merit.
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 passed discovery to Appellant as of December 2015 and January 2016.” Id. at 26 (citations omitted). Again, the court concluded that it, therefore, could not determine
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 with respect to whether the Commonwealth had met its discovery obligations throughout the case,” and that it failed to determine when the Commonwealth was legitimately prepared for trial to commence. Id. at 31. In light of the perceived shortcomings of the record in that regard, the Superior Court remanded the case to the trial court to conduct a hearing to clarify the record with respect to: the cause for every continuance; the Commonwealth‘s readiness for trial throughout the life of the case; and the Commonwealth‘s due diligence, or lack thereof. Id. (citing Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010) (stating that, where the Superior Court determined that the trial court misconstrued Rule 600 and failed to focus upon the Commonwealth‘s due diligence, “the proper action would have been a remand to the trial court to determine whether the Commonwealth exercised due diligence pursuant to Rule 600“)). Furthermore, the court directed the trial court to place the burden of proof on the Commonwealth - namely, by requiring the Commonwealth to demonstrate that it acted with due diligence - given that the trial court repeatedly placed the burden on Appellant in addressing his motions.
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 Commonwealth‘s due diligence and its decision to, instead, rely upon its own congested schedule as justification for denying Appellant‘s Rule 600 motions. Indeed, Appellant emphasizes that, despite the defense‘s enduring position that the Commonwealth failed to exercise due diligence in prosecuting the case and in fulfilling its discovery obligations - and Appellant‘s attorneys’ strenuous and repeated arguments in support of that stance at both Rule 600 hearings - the Commonwealth failed to offer any evidence related to its due diligence. While Appellant lauds the Superior Court‘s acknowledgement that the trial court misapprehended the burden of proof in reviewing the Commonwealth‘s due diligence, he maintains that, by predominantly focusing upon the erroneous standard employed by the trial court, the Superior Court overlooked the Commonwealth‘s failure to offer any evidence whatsoever in relation to the question of due diligence. Thus, in essence, Appellant suggests that the Superior Court‘s decision to remand provides the Commonwealth an unwarranted third chance to meet its burden of proving due diligence.
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 Superior Court‘s opinion reflects the clear evidence on the record that the Commonwealth failed to turn over mandatory discovery until the eve of trial, several months past the Rule 600 deadline.” Appellant‘s Brief at 15.
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
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 Pa.R.Crim.P. 1100 - the precursor to Rule 600. While acknowledging that Akridge is a
non-binding per curiam decision, Appellant nonetheless observes that, therein, we found that “a ‘second bite’ of the Commonwealth‘s evidentiary burden on the ‘due diligence’ requirement of Rule 1100 [was] in contradiction to the mandates we set forth in Commonwealth v. Ehredt, [401 A.2d 358 (Pa. 1979)].” Akridge, 422 A.2d at 487. Appellant proffers that Ehredt supports the notion that remand is inappropriate where the Commonwealth fails to offer evidence of its due diligence in the first instance, noting that we cautioned in that case that the Commonwealth may not meet its burden of proof by way of bald assertions. See Ehredt, 401 A.2d at 360-61.9
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
reasoned therein that “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.” Appellant‘s Brief at 24 (quoting Mills, 162 A.3d at 326 (Wecht, J., concurring)). Appellant asserts that, here, consistent with Justice Wecht‘s methodology, the trial court was
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 trial court‘s busy schedule, without proving that it was nevertheless prepared to proceed, would deprive the due diligence component of the rule of meaning. Appellant‘s Brief at 26 (citing Mills, 162 A.3d at 326-27 (Wecht, J., concurring)). As such, Appellant implores us to “promote the more efficient resolution of Rule 600 motions by explicitly adopting the paradigm outlined in Justice Wecht‘s concurring opinion in Mills,” thereby providing “clear guidance” to the lower courts and ensuring that the Commonwealth “is held accountable for its obligation to diligently bring defendants to trial in a timely fashion,” while continuing to protect the Commonwealth from unjustifiable discharge of a case where it has acted diligently. Id. at 27.
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
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 discovery was complete and that it would not hold its own unavailability against the Commonwealth in ruling on Appellant‘s Rule 600 motion. See N.T. Hearing, 6/22/16, at 6-7. The Commonwealth maintains that,
[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
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 scheduled trial. The Commonwealth contends that it had no notice of the defense‘s intent to raise a second Rule 600 issue, and thus “had no opportunity to find out more information about the discovery,” such as what items were disclosed by the prosecutor who was originally assigned to the case. Id. at 18. As a result, the Commonwealth asserts that it was deprived of a full and fair opportunity to prove its due diligence.
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 (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 remand in Akridge solely provided the Commonwealth with a second chance to meet its obligations, whereas here the remand was to direct the trial court to apply the proper legal analysis in making its Rule 600 decision.”12 Commonwealth‘s Brief at 21.
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
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
diligence must be proven by the Commonwealth, and assessed by the court, before “judicial delay” becomes a consideration in the time calculation for
Hence, consideration of the standard enunciated by Justice Wecht in Mills is not beyond the scope of our grant of allocatur, and Appellant‘s request for us to consider formal adoption of that standard is fairly encompassed by the question pending before us. We will address that aspect of the appeal first.13
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
As noted above, the most recent version of
In Mills, supra, we examined the meaning of “delay” in the computational instructions in
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
On appeal, we rejected the construction of
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 judgments without first considering the Commonwealth‘s due diligence obligation.” Id. at 326 (Wecht, J., concurring). Indeed, Justice Wecht reasoned:
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 [
Presently, we find that the methodology enunciated by Justice Wecht in Mills encapsulates
Indeed, the text of
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
Relatedly, the construction of
Accordingly, we hold that, in ruling on a defendant‘s
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
On further review, we affirmed the Superior Court, but nonetheless explained that, while the Superior Court properly determined that the trial court misconstrued
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
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
Our review of the record reflects that: the Commonwealth filed a complaint against Appellant on January 22, 2015; the trial court initially directed the Commonwealth to complete its disclosure of discovery by June 22, 2015, Criminal Docket at 7; on June 22, 2015, the Commonwealth was not prepared to fulfill its discovery obligations, id.; the Commonwealth requested a continuance on July 28, 2015 related to its discovery obligations, and the trial court granted a continuance until July 30, 2015, id.; and the trial court granted the Commonwealth an additional continuance on August 21, 2015, noting that “IGJ discovery [needed] to be passed,” id. at 9. Further, the record demonstrates that on May 23 and 24, 2016, “[a]dditional [d]iscovery [was] outstanding,” id. at 12, while the Commonwealth disclosed “audio discovery . . . at the bar of the [c]ourt” on May 25, 2016, id. at 13. Finally, the record establishes that on November 28, 2016, the morning on which Appellant‘s trial was to begin, the Commonwealth presented a discovery packet, which included 15 previously undisclosed exhibits, to the defense, prompting Appellant to lodge a second
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
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.
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(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.
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(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.