Com. v. Saunders, H.

J-A22044-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HOUDINI MASOYAMA SAUNDERS :
:
Appellant : No. 290 MDA 2021

Appeal from the Judgment of Sentence Entered February 1, 2019
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001602-2015

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: FEBRUARY 4, 2022

Appellant, Houdini Masoyama Saunders, appeals nunc pro tunc from the

judgment of sentence entered in the Dauphin County Court of Common Pleas,

following his jury trial convictions for possession of a controlled substance with

intent to deliver (“PWID”) and possession of drug paraphernalia.1 We remand

this case to the trial court for further findings of fact regarding whether

dismissal of the charges was warranted under Pa.R.Crim.P. 600.

The relevant facts and procedural history of this appeal are as follows.

On July 16, 2014, members of the Dauphin County Drug
Task Force conducted a buy/walk operation in Susquehanna
Township. A buy/walk operation is one in which the intent
is to purchase controlled substances from an individual but
then to allow them to leave without being arrested so that
the investigation may continue.

____________________________________________

1 35 P.S. § 780-113(a)(30), (32).
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In the presence of the task force officers, a confidential
informant (“CI”) placed a telephone call to an individual
named Sara and arranged to purchase a brick of heroin. The
exchange was to occur at the Union Square Shopping
Center. Before going to the arranged location, the officers
conducted a thorough search of the CI at a secure location
to assure that he or she did not have any drugs on their
person. Nothing was discovered. From that point forward,
the CI was either in the custody of the officers or under their
constant surveillance. The CI drove to the meeting location
in a vehicle with Sergeant Ashley Baluh, whose job was to
act in an undercover capacity as the CI’s friend.

Twenty-two (22) minutes after placing the phone call, a
black Dodge arrived at the shopping center. The vehicle had
Florida license plates and appeared to be a rental car.
Officer Clee Tilman, a police officer for thirteen (13) years
who was overseeing the operation, testified that his training
and experience have taught him that drug dealers often
utilize rental cars to conduct their deals. A black male was
the sole occupant of the Dodge, and the vehicle parked
“directly near” where the CI and Sergeant Baluh were
parked. The CI exited Sergeant Baluh’s vehicle and entered
the passenger side of the Dodge. The Dodge drove a loop
around the parking lot and then returned to the area near
where it was originally parked. The CI then returned to
Sergeant Baluh’s vehicle and turned over forty-two (42)
bags of heroin. Only three (3) minutes had passed since
the time the Dodge arrived. The Dodge then exited the
shopping center.

With Officer Tilman and Detective Gary Flythe following in
separate vehicles, Officer Ryan Lindsley was directed to
execute a traffic stop of the Dodge to identify the occupant.
Officer Lindsley pulled the Dodge over approximately one
and one-half (1½) miles from the shopping center. Once
the CI exited the Dodge, no one else entered or exited the
vehicle until the traffic stop. Officer Lindsley requested the
driver provide identification and he ultimately issued him a
written warning. He was able to identify the driver as
[Appellant].

(Trial Court Opinion, filed April 5, 2021, at 3-4) (internal record citations

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omitted).

The Commonwealth filed a criminal complaint on October 29, 2014, and

Appellant proceeded to a preliminary hearing on March 12, 2015. Following

the preliminary hearing, the court granted Appellant’s release on unsecured

bail. The court also scheduled Appellant’s formal arraignment for May 11,

2015. On March 16, 2015, Appellant was transported to state prison for a

state parole detainer. Consequently, Appellant did not appear at his formal

arraignment, and the court issued a bench warrant.

On August 17, 2016, Appellant was arrested and detained on the bench

warrant. The court also scheduled Appellant’s next listing for September 14,

2016. Appellant posted bail on August 22, 2016 and subsequently filed pro

se motions to dismiss the charges pursuant to Rule 600 on September 9, 2016

and September 15, 2016.2 The court conducted a Rule 600 hearing on

October 7, 2016, but Appellant did not appear. At the conclusion of the

hearing, the court dismissed the pro se motions and indicated that the next

listing was scheduled for November 16, 2016. (See N.T. First Rule 600

Hearing, 10/7/16, at 3).

On November 17, 2016, the Public Defender’s office filed a motion for

continuance on Appellant’s behalf. The court granted Appellant’s motion and

____________________________________________

2At the time he filed the pro se motions, Appellant had a pending application
with the Public Defender’s office. (See N.T. First Rule 600 Hearing, 10/7/16,
at 2).

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continued the matter until February 2, 2017. On February 2, 2017, Appellant

requested another continuance. The court granted Appellant’s request and

continued the matter until March 1, 2017.

Thereafter, the record reveals that Appellant’s case was rescheduled on

multiple occasions between March 1, 2017 and January 3, 2018.3 The

rescheduling notice filed on January 3, 2018 listed the matter for March 7,

2018. Prior to that listing, Appellant filed a counseled Rule 600 motion on

February 5, 2018. In it, Appellant argued that over one thousand days had

elapsed since the filing of the criminal complaint, and much of the delay was

directly attributable to the Commonwealth. Appellant emphasized the period

where he was in state prison for the parole detainer, claiming “even a minimal

exercise of due diligence on the part of the Commonwealth would have

revealed [Appellant’s] location.” (Rule 600 Motion, filed 2/5/18, at ¶8).

The court conducted a Rule 600 hearing on March 26, 2018. At the start

of the hearing, the Commonwealth immediately shifted the court’s focus to

one discrete period of delay: “Really, what’s at issue here are 519 days in

which [Appellant] was in the custody of the Department of Corrections. That’s

from March 16th of 2015 through August 16th of 2016.” (N.T. Second Rule

600 Hearing, 3/26/18, at 2). Relying on Commonwealth v. Baird, 601 Pa.

____________________________________________

3 The rescheduling notices contained in the record on appeal do not provide
an explanation regarding what prompted these delays. The docket entries,
however, indicated that Appellant was “not ready” on two occasions: August
2, 2017 and September 29, 2017.

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J-A22044-21

625, 975 A.2d 1113 (2009) and Commonwealth v. Wright, 178 A.3d 884

(Pa.Super. 2018), the Commonwealth argued that the period at issue

amounted to excludable delay. Other than the period where Appellant was in

state custody, the parties did not address any of the other delays that occurred

prior to the filing of the Rule 600 motion. On July 3, 2018, the court denied

Appellant’s Rule 600 motion.

Following trial, a jury convicted Appellant of PWID and possession of

drug paraphernalia. On February 1, 2019, the court sentenced Appellant to

an aggregate term of two (2) to six (6) years’ imprisonment. Appellant timely

filed a notice of appeal, which this Court dismissed on January 2, 2020 due to

Appellant’s failure to file a brief.

On August 31, 2020, Appellant timely filed a pro se petition pursuant to

the Post Conviction Relief Act, at 42 Pa.C.S.A. §§ 9541-9546. The court

appointed counsel, who filed an amended petition on December 17, 2020. On

February 2, 2021, the court reinstated Appellant’s post-sentence and direct

appeal rights nunc pro tunc. Appellant timely filed a post-sentence motion

nunc pro tunc on February 12, 2021, challenging the weight of the evidence

supporting his convictions. On March 2, 2021, the court denied Appellant’s

post-sentence motion nunc pro tunc.

Appellant timely filed a notice of appeal nunc pro tunc on March 3, 2021.

On March 9, 2021, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Appellant timely filed

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his Rule 1925(b) statement on March 30, 2021.

Appellant now raises four issues for our review, which we have

reordered as follows:

Whether the trial court did not properly address trial
counsel’s objection to the proposed jury instructions
regarding burden of proof[?]

Whether the evidence presented by the Commonwealth at
trial was not sufficient to prove Appellant delivered a
controlled substance?

Whether the trial court erred when denying Appellant’s
motion for a new trial based on the weight of the evidence?

Whether the trial court abused its discretion when it denied
Appellant’s motion to dismiss the criminal docket pursuant
to Pa.R.Crim.P. 600?

(Appellant’s Brief at 8).

In his first issue, Appellant asserts that trial counsel objected to the

court’s jury instruction regarding the Commonwealth’s burden of proof.

Following the objection, Appellant complains that the court did not clarify its

instruction or issue a curative instruction based upon counsel’s objection.

Appellant further argues that the trial transcripts “do not reflect that this

objection was addressed by the trial court with the jury….” (Id. at 14).

Appellant concludes that he is entitled to a new trial due to the court’s failure

to address the objection with the jury. We disagree.

“The trial court has considerable discretion in fashioning a jury charge.”

Commonwealth v. Gomez, 224 A.3d 1095, 1102 (Pa.Super. 2019), appeal

denied, ___ Pa. ___, 236 A.3d 1053 (2020). “The court is free to use its own

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expressions, provided it clearly and accurately conveys the applicable legal

concepts at issue.” Id. “In reviewing instructions to a jury, we consider the

entire charge, ‘not merely discrete portions thereof.’” Id. (quoting

Commonwealth v. Johnson, 630 Pa. 493, 552, 107 A.3d 52, 88-89 (2014)).

“The trial court is not required to give every charge that is requested by the

parties and its refusal to give a requested charge does not require reversal

unless the appellant was prejudiced by that refusal.’” Commonwealth v.

Scott, 73 A.3d 599, 602 (Pa.Super. 2013) (quoting Commonwealth v.

Brown, 911 A.2d 576, 583 (Pa.Super. 2006)).

Our Supreme Court has addressed “burden of proof” and “reasonable

doubt” instructions as follows:

Without impinging on the discretion of the trial courts to
phrase their own instructions, we have acknowledged
charges in other cases that would clearly enable a jury to
determine whether the Commonwealth has met its burden
of proof.

It is true that this Court has never required a single standard
charge on reasonable doubt. However, we also have never
stated that a jury may be given a reasonable doubt charge
that fails to define reasonable doubt.

Moreover, we have repeatedly placed our imprimatur on the
charge expressed in Commonwealth v. Donough, 377 Pa.
46, 51-52, 103 A.2d 694, 697 (1954).

“A standard and approved form of charge on this point
would be: ‘The defendant comes before you presumed
to be innocent and the burden is upon the
Commonwealth to prove his guilt beyond a reasonable
doubt. A reasonable doubt cannot be a doubt fancied
or conjured up in the minds of the jury to escape an
unpleasant verdict; it must be an honest doubt arising

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J-A22044-21

out of the evidence itself, the kind of doubt that would
restrain a reasonable man (or woman) from acting in
a matter of importance to himself (or herself).’”

Commonwealth v. Ragan, 560 Pa. 106, 128-29, 743 A.2d 390, 402 (1999).

Instantly, the relevant portion of the court’s jury instruction provided:

A person accused of a crime is not required to present
evidence or prove anything in their own defense. If the
Commonwealth’s evidence fails to prove that the defendant
is guilty beyond a reasonable doubt, your verdict must be
not guilty. On the other hand, if the Commonwealth’s
evidence does prove beyond a reasonable doubt that the
defendant is guilty, well then, your verdict should be guilty.

Although the Commonwealth has the burden of proving that
the defendant is guilty, this does not mean that the
Commonwealth must prove its case beyond all doubt or to
a mathematical certainty nor must it demonstrate the
complete impossibility of innocence.

A reasonable doubt is a doubt that would cause a reasonably
careful and sensible person to hesitate before acting upon a
matter of importance in their own affairs. A reasonable
doubt must fairly arise out of the evidence presented with
respect to some element of the crime.

A reasonable doubt must be a real doubt. It may not be an
imagined one nor may it be a doubt that was manufactured
to avoid carrying out an unpleasant duty. It must be an
honest doubt arising out of the evidence itself, the kind of
doubt that would restrain a reasonable person from acting
in a manner of importance to themselves.

(N.T. Trial, 1/15-16/19, at 95-96).

The court completed its charge, and the jury exited the courtroom to

commence deliberations. At that point, trial counsel raised the following

objection:

Yes, Your Honor, just on the presumption of innocence,

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J-A22044-21

burden of proof, reasonable doubt instruction, on the
standard instructions actually submitted by [the
Commonwealth], I was taking exception to the lack of the
phrase “a reasonable doubt must fairly arise out of the
evidence that was presented” and this part was omitted “or
out of the lack of evidence presented” and it goes on from
there. But just that portion of the phrase there.

(Id. at 104). The court responded, “So noted.” (Id.) Although the court did

not expressly overrule the objection, the jury returned to the courtroom and

the court did not issue any further instructions.

Our review of the entire jury charge reveals that the court adequately

conveyed the legal concept at issue. See Ragan, supra; Gomez, supra.

Here, the court’s refusal to include the specific language requested by trial

counsel did not result in prejudice to Appellant. See Scott, supra. Thus,

Appellant is not entitled to relief on this claim.

In his second and third issues, Appellant argues that he was not the

target of any prior investigation and the police simply “equated suspicious

activity with a vehicle with an out of state license.” (Appellant’s Brief at 17).

Further, Appellant contends that the CI “never made a connection between

the individual the CI called and the individual who delivered the controlled

substance.” (Id.) Appellant emphasizes that the CI never met or identified

Appellant, and the CI’s failure to identify Appellant as part of the drug

distribution operation shocks one’s sense of justice. Appellant concludes the

Commonwealth presented insufficient evidence to support his PWID

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conviction, and the PWID conviction was against the weight of the evidence.4

We disagree.

In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant’s guilt is to be
resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.

The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that
the evidence establishing a defendant’s participation in a
crime is circumstantial does not preclude a conviction where
the evidence coupled with the reasonable inferences drawn
therefrom overcomes the presumption of innocence.
Significantly, we may not substitute our judgment for that
of the fact finder; thus, so long as the evidence adduced,
accepted in the light most favorable to the Commonwealth,
demonstrates the respective elements of a defendant’s
crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.

____________________________________________

4 The arguments in Appellant’s brief do not specifically challenge Appellant’s
conviction for possession of drug paraphernalia. See Appellant’s Brief at 17
(stating “Commonwealth failed to present sufficient evidence that Appellant
delivered a controlled substance,” and regarding weight, “evidence presented
did not establish that … Appellant delivered a controlled substance”).

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J-A22044-21

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019)

(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super.

2013)).

Additionally,

The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one’s sense of justice.

Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

The offense of PWID is defined by statute as follows:

§ 780-113. Prohibited acts; penalties

(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:

* * *

(30) Except as authorized by this act, the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a
person not registered under this act, or a practitioner not
registered or licensed by the appropriate State board, or

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knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).

To establish the offense of PWID, the Commonwealth must prove

beyond a reasonable doubt that the defendant possessed a controlled

substance with the intent to deliver it. Commonwealth v. Jones, 874 A.2d

108, 121 (Pa.Super. 2005).

The trier of fact may infer that the defendant intended to
deliver a controlled substance from an examination of the
facts and circumstances surrounding the case. Factors to
consider in determining whether the drugs were possessed
with the intent to deliver include the particular method of
packaging, the form of the drug, and the behavior of the
defendant.

Id. (quoting Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super.

2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)). “[A]ll of the facts

and circumstances surrounding the possession are relevant and the elements

of the crime may be established by circumstantial evidence.”

Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005), appeal

denied, 586 Pa. 724, 890 A.2d 1057 (2005).

Instantly, the Commonwealth presented testimony from Sergeant

Baluh, who drove the CI to the shopping center to conduct the controlled

purchase of heroin. (See N.T. Trial at 79-80). Prior to departing for the

shopping center, another officer searched the CI to confirm that no contraband

was on the CI’s person. (Id. at 41, 79). Once at the shopping center, the CI

remained in Sergeant Baluh’s vehicle until the target vehicle, a black Dodge,

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arrived. (Id. at 80). The CI entered and exited the Dodge, returned directly

to Sergeant Baluh’s vehicle, and immediately handed the drugs to Sergeant

Baluh. (Id.) Subsequent testing confirmed the presence of heroin in the

drugs obtained from the driver of the Dodge. (Id. at 47).

Officer Tilman and Detective Flythe conducted surveillance during the

controlled purchase. (Id. at 39, 69). Detective Flythe testified that no one

else entered or exited the Dodge after the CI completed the transaction. (Id.

at 73). As the black Dodge pulled out of the parking lot, Officer Tilman

followed the vehicle and requested that Officer Lindsley conduct a traffic stop.

(Id. at 42). Moments later, Officer Lindsley executed the traffic stop and

discovered that Appellant was the driver and sole occupant of the vehicle.

(Id. at 65-66).

Viewing this evidence in the light most favorable to the Commonwealth

as verdict winner, the record supports the inference that Appellant delivered

the heroin to the CI. See Sebolka, supra; Jones, supra. Further, the trial

court concluded that the guilty verdict did not shock one’s sense of justice.

(See Trial Court Opinion at 7). On this record, we cannot say that the court

palpably abused its discretion in ruling on the weight claim. See Champney,

supra. Therefore, Appellant is not entitled to relief on his sufficiency and

weight claims.

In his final issue, Appellant argues that the Commonwealth filed the

criminal complaint on October 29, 2014, but he did not proceed to a jury trial

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until January 15, 2019. Appellant acknowledges several periods of delay were

attributable to the defense, including multiple requests for continuances in

2016 and 2017. Appellant insists, however, that at least seven hundred and

thirty-five (735) days of delay were not attributable to the defense. Appellant

concludes that the court abused its discretion by denying his Rule 600 motion.

Based upon our review of the record, an additional evidentiary hearing is

required.

The following principles apply to our review of a speedy trial claim:

Our standard of review in a Rule 600 issue is whether the
trial court abused its discretion. Our scope of review when
determining the propriety of the trial court is limited to the
evidence in the record, the trial court’s Rule 600 evidentiary
hearing, and the trial court’s findings. We must also view
the facts in the light most favorable to the prevailing party[.]

Commonwealth v. Risoldi, 238 A.3d 434, 449 n.14 (Pa.Super. 2020),

appeal denied, ___ Pa. ___, 244 A.3d 1230 (2021).

Additionally, when considering the trial court’s ruling, this
Court is not permitted to ignore the dual purpose behind
Rule 600. Rule 600 serves two equally important functions:
(1) the protection of the accused’s speedy trial rights, and
(2) the protection of society. In determining whether an
accused’s right to a speedy trial has been violated,
consideration must be given to society’s right to effective
prosecution of criminal cases, both to restrain those guilty
of crime and to deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed to
insulate the criminally accused from good faith prosecution
delayed through no fault of the Commonwealth.

So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental
speedy trial rights of an accused, Rule 600 must be
construed in a manner consistent with society’s right to

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punish and deter crime. In considering these matters …,
courts must carefully factor into the ultimate equation not
only the prerogatives of the individual accused, but the
collective right of the community to vigorous law
enforcement as well.

Commonwealth v. Martz, 232 A.3d 801, 809-10 (Pa.Super. 2020) (quoting

Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa.Super. 2011)).

Rule 600 sets forth the speedy trial requirements and provides in

pertinent part:

Rule 600. Prompt Trial

(A) Commencement of Trial; Time for Trial

* * *

(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:

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(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.

Pa.R.Crim.P. 600(A)(2)(a), (C)(1), (3)(a).

“Rule 600 generally requires the Commonwealth to bring a defendant

on bail to trial within 365 days of the date the complaint was filed.”

Commonwealth v. Hunt, 858 A.2d 1234, 1240 (Pa.Super. 2004) (en banc).

A defendant on bail after 365 days, but before trial, may apply to the court

for an order dismissing the charges with prejudice. Id. at 1240-41. To obtain

relief, a defendant must have a valid Rule 600 claim at the time he files the

motion to dismiss. Id. at 1243.

[A] defendant is not automatically entitled to discharge
under Rule 600 where trial starts more than 365 days after
the filing of the complaint. Rather, Rule 600 provides for
dismissal of charges only in cases in which the defendant
has not been brought to trial within the term of the adjusted
run date, after subtracting all excludable and excusable
time. The adjusted run date is calculated by adding to the
mechanical run date, i.e., the date 365 days from the
complaint, both excludable time and excusable delay.
“Excludable time” is classified as periods of delay caused by
the defendant. “Excusable delay” occurs where the delay is
caused by circumstances beyond the Commonwealth’s
control and despite its due diligence. “Due diligence is a
fact-specific concept that must be determined on a case-by-
case basis. Due diligence does not require perfect vigilance

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and punctilious care, but rather a showing by the
Commonwealth that a reasonable effort has been put forth.
Due diligence includes, inter alia, listing a case for trial prior
to the run date, preparedness for trial within the run date,
and keeping adequate records to ensure compliance with
Rule 600. Periods of delay caused by the Commonwealth’s
failure to exercise due diligence must be included in the
computation of time within which trial must commence.

Martz, supra at 810-11 (quoting Commonwealth v. Moore, 214 A.3d 244,

248-49 (Pa.Super. 2019), appeal denied, ___ Pa. ___, 224 A.3d 360 (2020))

(internal citations and some quotation marks omitted).

Instantly, the Commonwealth filed the criminal complaint on October

29, 2014. Therefore, the mechanical run date was October 29, 2015.

Appellant proceeded to a preliminary hearing on March 12, 2015. Following

the preliminary hearing, the court granted Appellant’s release on unsecured

bail, and it scheduled the formal arraignment for May 11, 2015. The certified

record includes numerous documents signed by Appellant, which demonstrate

that he received notice of the arraignment date. (See Bail Bond Form, dated

3/12/15, at 1; Bail Release Conditions, dated 3/12/15, at 1; Surety

Information Page, dated 3/12/15, at 1; Notice of Formal Arraignment, dated

3/12/15, at 1).

Prior to the arraignment, Appellant was transported to state prison for

a state parole detainer. Consequently, Appellant did not appear at his formal

arraignment, and the court issued a bench warrant on May 11, 2015.

Appellant was not arrested on the bench warrant until August 17, 2016. The

period of Appellant’s unavailability between May 11, 2015 and August 17,

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2016 constituted 464 days of delay. In evaluating this period, the court relied

on Baird, supra and Wright, supra to find that the delay was excludable:

In Wright, after twenty-five (25) years had passed since
the issuance of a bench warrant for failure to appear, the
defendant, who had been charged with Driving Under the
Influence and Reckless Driving, moved to dismiss the
charges pursuant to Rule 600. The trial court granted the
defendant’s motion to dismiss, and the Commonwealth
appealed, asserting that the court abused its discretion
when [the defendant] admitted he had notice of the court
proceeding in question, but willfully failed to appear.
Relying on [Baird, supra], the Commonwealth argued it
had no requirement to seek out [the defendant] during the
twenty-five (25) year period, where all excludable time
resulted from [the defendant’s] failure to appear [due to
unrelated arrests and incarceration]. The Superior Court
agreed, and reversed the order granting dismissal.

* * *

In this case, [Appellant] was granted unsecured bail at his
Preliminary Hearing on March 12, 2015. [Appellant] signed
paperwork to this effect, where his residential address was
listed not once, but twice, and the second notation is in
[Appellant’s] own handwriting. Additionally, [Appellant]
signed the surety information page, which also listed the
same residential address. [Appellant] had notice of his
Formal Arraignment date, which was May 11, 2015.
[Appellant] had a state parole detainer and, a few days after
the Preliminary Hearing on March 12, 2015, he was
transported to state prison. The District Attorney of
Dauphin County was not made aware he was sent to state
prison. A warrant was issued for [Appellant’s] failure to
appear. Further, [Appellant] failed to advise the Clerk of
Courts of his change of residence at this docket.

Here, like in Baird and Wright, because [Appellant] had
reasonable notice of the court proceedings but failed to
appear, the Commonwealth’s due diligence in attempting to
locate him need not be assessed. [Appellant] undertook to
accept the status of bail and assumed responsibility for
making himself available. [Appellant] argues that this case

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is distinguishable from Wright because here there was
never a break in custody and [Appellant] was always under
the Commonwealth’s dominion. We decline to follow this
reasoning, as [Appellant] was not held continuously on this
docket. Rather, going back to the crux of the issue,
[Appellant] signed his bail piece stating and acknowledging
his responsibility to appear and notice was given of the
arraignment date; he took no effort to appear, nor did his
defense counsel.

(Trial Court Opinion at 10, 12) (internal citations omitted). Under the

applicable standard of review, we cannot say that the court abused its

discretion in reaching this conclusion. See Risoldi, supra. See also Wright,

supra (holding twenty-five-year period between when bench warrant was

issued after defendant’s failure to appear at court proceeding and when

defendant turned himself in to police was excludable; Rule 600 clock begins

to “run again” when defendant is subsequently apprehended for charge at

issue; trial court erred in shifting burden to Commonwealth to demonstrate

due diligence under such circumstances).

Nevertheless, our analysis does not end here, as there were several

more pretrial delays requiring evaluation. After Appellant’s arrest on the

bench warrant, the court scheduled a listing for September 14, 2016. Prior to

that listing, Appellant filed a pro se Rule 600 motion. The court conducted a

Rule 600 hearing on October 7, 2016, but Appellant did not appear. At the

conclusion of the hearing, the court dismissed the pro se motion and indicated

that the next listing was scheduled for November 16, 2016. On November 17,

2016, the Public Defender’s office filed a motion for continuance on Appellant’s

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behalf. The court granted Appellant’s motion and continued the matter until

February 2, 2017. On February 2, 2017, Appellant requested another

continuance. The court granted Appellant’s request and continued the matter

until March 1, 2017. Because Appellant caused the delays between September

14, 2016 and March 1, 2017, this period was excludable from the calculation

of the adjusted run date. See Martz, supra.

The following chart summarizes the delays in bringing the case to trial

at this point:

DATES ACTIVITY DAYS EXCLUDABLE ADJUSTED
DELAY RUN DATE

10/29/14- Commonwealth filed criminal 134 No 10/29/15
3/12/15 complaint; court conducted
preliminary arraignment

3/12/15- Court conducted preliminary 60 No 10/29/15
5/11/15 hearing; court granted
Appellant’s release on
unsecured bail; court scheduled
formal arraignment for 5/11/15

5/11/15- Prior to formal arraignment, 464 Excludable; 2/4/17
8/17/16 Appellant was transported to Appellant failed
state prison for a state parole to appear at
detainer; Appellant did not court
appear for formal arraignment; proceeding,
court issued bench warrant due despite having
to Appellant’s failure to appear reasonable
notice

8/17/16- Appellant was arrested and 28 No 2/4/17
9/14/16 detained on the bench warrant;
docket indicates Appellant
posted bail on 8/22/16

9/14/16- Appellant filed pro se Rule 600 63 Excludable; 4/8/17
11/16/16 motions; Appellant did not Appellant’s

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appear at Rule 600 hearing; pretrial filing
court dismissed pro se Rule 600 created delay
motion; court did not issue
bench warrant, as it decided to
wait and see if Appellant
appeared at next scheduled
listing on 11/16/16

11/16/16- Appellant requested 78 Excludable; 6/25/17
2/2/17 continuance; court granted continuance
continuance until 2/2/17; requested
Appellant expressly agreed to
waive this period for Rule 600
purposes

2/2/17- Appellant requested 27 Excludable; 7/22/17
3/1/17 continuance; court granted continuance
continuance until 3/1/17; requested
Appellant expressly agreed to
waive this period for Rule 600
purposes

Thereafter, the record reveals that Appellant’s case was rescheduled on

at least six (6) occasions during the 341-day period between March 1, 2017

and the filing of Appellant’s Rule 600 motion on February 5, 2018. The docket

entries indicate that Appellant’s unavailability created one stretch of delay:

the 105-day period from August 2, 2017 through November 15, 2017.

Nevertheless, this still leaves 236 days of delay where the record is silent as

to causation. Depending on how many of these 236 days were excludable,

Appellant might have had a valid Rule 600 claim on the date he filed his motion

to dismiss. See Hunt, supra.

Significantly, the court did not record which party caused these 236 days

of delay, and it did not determine whether the time should have been included

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in the computation of the adjusted run date. See Pa.R.Crim.P.

600(C)(3)(a)(ii). The transcript from the 2018 Rule 600 hearing and the

analysis in the trial court’s Rule 1925(a) opinion do not address the 236 days

of delay, and the court did not assess the Commonwealth’s due diligence in

bringing the case to trial during this period. See Martz, supra. Based upon

the foregoing, the trial court failed to provide an adequate analysis regarding

all periods of pretrial delay in the instant case.

Under such circumstances, the most prudent course of action is to

remand the matter for the limited purpose of conducting a supplemental Rule

600 hearing where the court can consider the delays that occurred following

Appellant’s 2016 release from state custody. See Commonwealth v.

Thompson, 93 A.3d 478 (Pa.Super. 2014) (remanding for trial court to

determine whether certain period of delay was attributable to Commonwealth

for Rule 600 purposes). Compare Commonwealth v. Harth, ___ Pa. ___,

___, 252 A.3d 600, 620 (2021) (holding that remand was unnecessary and,

in service of judicial economy, Supreme Court would review record de novo

and render due diligence determination; regarding remand, “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

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an endeavor in the name of judicial economy and expediency”). 5 After it

receives additional evidence and argument from the parties, the court should

identify each period of delay and determine whether it is excludable under

Rule 600, as well as whether the Commonwealth acted with due diligence.

Case remanded. Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/04/2022

____________________________________________

5 We note that in Harth, the trial court relied upon its own congested schedule
as justification for denying the defendant’s Rule 600 motion. In the instant
case, however, the court did not consider the role that its schedule might have
played in creating the 236 days of delay at issue. Instead, Appellant’s Rule
600 hearing focused exclusively on the period where Appellant was in state
prison on a state parole detainer. Thus, Appellant’s case is distinguishable
from Harth and remand for further, albeit limited, proceedings is required.

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