Opinion
No. 120 EDA 2009.
Filed: June 11, 2010.
Appeal from the Order entered November 14, 2008, In the Court of Common Pleas of Philadelphia County, Criminal, No. CP-51-CR-0009214-2008.
BEFORE: BOWES, GANTMAN, AND KELLY, JJ.
¶ 1 Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Philadelphia County Court of Common Pleas, granting Appellee, Darius Peterson's motion to dismiss filed pursuant to Pa.R.Crim.P. 600. We affirm.
¶ 2 The relevant facts and procedural history of this case are as follows. On March 21, 2006, the Commonwealth filed a criminal complaint against Appellee ("first complaint"), charging him with possession of a controlled substance with intent to deliver ("PWID"), carrying a firearm without a license, and related offenses. On March 24, 2006, Appellee posted bail and was released from custody. On March 27, 2006, the date of Appellee's preliminary hearing, the court appointed the public defender's office to represent Appellee. Additionally, the Commonwealth did not have the field test results for the narcotics seized from Appellee. Thus, the court granted a joint continuance.
¶ 3 At the next listing on June 12, 2006, the Commonwealth was prepared to proceed. Appellee, however, sought to retain private counsel, and the court continued the matter until August 21, 2006. Prior to the next listing, the authorities arrested Appellee in Bucks County for unrelated charges. Due to this arrest, Appellee failed to appear at the August 21, 2006 listing in Philadelphia County. Appellee also failed to notify the Commonwealth of his whereabouts, and the court issued a bench warrant for his arrest. The Commonwealth learned of Appellee's incarceration in December 2006, at which point the court withdrew the bench warrant and rescheduled the preliminary hearing. (N.T. Rule 600 Hearing, 10/28/08, at 16).
Appellee remained incarcerated in Bucks County from June 19, 2006 until October 23, 2006. On October 23, 2006, Bucks County transferred Appellee to the custody of state correctional authorities.
¶ 4 At the next listing on January 16, 2007, the Commonwealth could not proceed because the arresting officer was unavailable. Specifically, the officer had been subpoenaed to testify in another case at a different courthouse. The court continued the case until February 1, 2007. On February 1, 2007, the Commonwealth could not proceed because the arresting officer was unavailable due to training. The court continued the case until February 20, 2007. On February 20, 2007, the Commonwealth could not proceed because the arresting officer left the courtroom before Appellee's case was called. At that point, the court dismissed the first complaint for lack of prosecution.
¶ 5 Over one year later, on March 19, 2008, the Commonwealth filed notice of re-filing of the criminal complaint ("second complaint"). The Commonwealth also asked the court to schedule a preliminary hearing "on the earliest possible date consistent with the court's calendar." (Notice of Re-filing of Criminal Complaint, filed 3/19/08, at 1). The court scheduled the preliminary hearing for April 25, 2008. On April 25, 2008, the Commonwealth could not proceed because the arresting officer was unavailable due to training. Additionally, the authorities did not "bring down" Appellee from state custody.
The Commonwealth did not have to appeal the court's dismissal of the charges prior to re-filing the complaint against Appellee. See Commonwealth v. Jones, 676 A.2d 251 (Pa.Super. 1996), appeal denied, 546 Pa. 691, 687 A.2d 376 (1996) (explaining appeal is only required when re-filing charges would inevitably fail to cure defect which warranted dismissal). Here, the Commonwealth could have cured the defect by merely producing its witness at a subsequent listing after re-filing the charges.
¶ 6 At the next listing on June 17, 2008, Appellee proceeded to his preliminary hearing. On July 31, 2008, the court conducted Appellee's arraignment. On August 26, 2008, the court scheduled a pretrial conference. On September 9, 2008, Appellee filed a motion to dismiss, pursuant to Rule 600. The parties litigated the Rule 600 motion at a hearing on October 28, 2008. On November 14, 2008, the court granted Appellee's Rule 600 motion and dismissed the second complaint with prejudice.
¶ 7 The Commonwealth timely filed its notice of appeal on Monday, December 15, 2008. Also on December 15, 2008, the Commonwealth filed a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
The Commonwealth's notice of appeal was technically due on December 14, 2008, which fell on a Sunday. Thus, the Commonwealth timely filed its notice of appeal on Monday, December 15, 2008.
¶ 8 The Commonwealth now raises one issue for our review:
DID THE TRIAL COURT ERR IN DISMISSING THE CHARGES AGAINST [APPELLEE] UNDER RULE 600, WHERE THE RUN DATE WAS NOT VIOLATED?
(Commonwealth's Brief at 10).
¶ 9 "In evaluating Rule 600 issues, our standard of review of a trial court's decision is whether the trial court abused its discretion." Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) ( en banc), appeal denied, 583 Pa. 659, 875 A.2d 1073 (2005). Further, we note:
The proper scope of review . . . is limited to the evidence on the record of the Rule 600 evidentiary hearing, and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party. 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 punish and deter crime.
Id. at 1238-39 (internal citations and quotation marks omitted).
¶ 10 The Commonwealth contends it acted with due diligence in prosecuting the first complaint, and it did not intend to evade the timeliness requirements of Rule 600 by re-filing the charges; nevertheless, a competent judicial authority dismissed the first complaint. Under these circumstances, the Commonwealth asserts the Rule 600 365-day adjusted run date should be calculated from the filing date for the second complaint. Following the filing of the second complaint, the Commonwealth argues the parties created 103 days of excludable and excusable delay. The Commonwealth insists these delays produced an adjusted run date falling 228 days after the court granted Rule 600 relief.
¶ 11 Even if this Court calculates the 365-day adjusted run date from the date of the first complaint, the Commonwealth maintains Appellee's Rule 600 motion was still premature. Following the filing of the first complaint, the Commonwealth claims the parties created 826 days of excludable and excusable delay. The Commonwealth avers these delays yielded an adjusted run date falling 222 days after the court granted Rule 600 relief. The Commonwealth concludes the court erroneously dismissed the charges pursuant to Rule 600, and this Court must reverse and remand the matter for trial. We disagree.
¶ 12 Rule 600 sets forth the speedy trial requirements and provides in pertinent part:
Rule 600. Prompt Trial
* * *
(A)(3) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.
* * *
(C) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant's arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 600;
(3) such period of delay at any stage of the proceedings as results from:
(a) the unavailability of the defendant or the defendant's attorney;
(b) any continuance granted at the request of the defendant or the defendant's attorney.
* * *
(G) For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant's attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain. If, on any successive listing of the case, the Commonwealth is not prepared to proceed to trial on the date fixed, the court shall determine whether the Commonwealth exercised due diligence in attempting to be prepared to proceed to trial. If, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.
Pa.R.Crim.P. 600(A)(3), (C)(1)-(3), (G). "Rule 600 generally requires the Commonwealth to bring a defendant on bail to trial within 365 days of the date the complaint was filed." Hunt, supra at 1240. A defendant on bail after 365 days, but before trial, may apply to the court for an order dismissing the charges with prejudice. Id.; Pa.R.Crim.P. 600(G). To obtain relief, a defendant must have a valid Rule 600 claim at the time he files his motion for relief. Hunt, supra at 1243.
¶ 13 "The mechanical run date is the date by which the trial must commence under Rule 600." Commonwealth v. McNear, 852 A.2d 401, 406 (Pa.Super. 2004).
It is calculated by adding 365 days (the time for commencing trial under Rule 600) to the date on which the criminal complaint is filed. The mechanical run date can be modified or extended by adding to the date any periods of time in which delay is caused by the defendant. Once the mechanical run date is modified accordingly, it then becomes an adjusted run date.
Id.
¶ 14 In the context of Rule 600, the distinction between "excludable time" and "excusable delay" is as follows:
"Excludable time" is defined in Rule 600(C) as the period of time between the filing of the written complaint and the defendant's arrest, . . . any period of time for which the defendant expressly waives Rule 600; and/or such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant's attorney; (b) any continuance granted at the request of the defendant or the defendant's attorney. "Excusable delay" is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth's control and despite its due diligence.
Commonwealth v. Brown, 875 A.2d 1128, 1135 (Pa.Super. 2005), appeal denied, 586 Pa. 734, 891 A.2d 729 (2005) (quoting Hunt, supra at 1241).
¶ 15 Even where a violation of Rule 600 has technically occurred, we recognize:
[T]he motion to dismiss the charges should be denied if the Commonwealth exercised due diligence and . . . the circumstances occasioning the postponement were beyond the control of the Commonwealth.
Due diligence is a fact-specific concept that must be determined on a case-by-case basis. Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been put forth.
Reasonable effort includes such actions as the Commonwealth listing the case for trial prior to the run date to ensure that [defendant] was brought to trial within the time prescribed by Rule [600].
Brown, supra at 1138 (quoting Hunt, supra at 1241-42) (emphasis in original). "The only occasion requiring charges to be dismissed occurs if the Commonwealth fails to bring the defendant to trial within three hundred sixty-five days, taking into account all excludable time and excusable delay." Commonwealth v. Murray, 879 A.2d 309, 314 (Pa.Super. 2005).
¶ 16 "[Rule 600] has been construed by the Courts of this Commonwealth as preventing the Commonwealth from filing and withdrawing a set of charges and re-filing them later in order to circumvent the 365-day limitation period of the rule and, thereby, extend the time that a defendant could be brought to trial." Commonwealth v. Surovcik, 933 A.2d 651, 654 (Pa.Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008) (citing Commonwealth v. Meadius, 582 Pa. 174, 180, 870 A.2d 802, 805 (2005)).
Therefore, prior to Meadius, this Court employed a two-pronged analysis to determine the proper date to calculate the 365-day period, whereby this Court would calculate the 365-day period from the second filing of charges if the following facts were present: (1) the first complaint was properly dismissed by a competent judicial or magisterial authority; and (2) the Commonwealth's actions precipitating dismissal were undertaken without any intent to evade the rule's mandate. If these facts were not present, the 365-day period was to be calculated using the date of the first filing of charges as the start date.
In addition to the "evasion" prohibition of Pa.R.Crim.P. 600 . . ., the Meadius Court also recognized that Pa.R.Crim.P. 600(G) precludes the withdrawal and re-filing of charges where the Commonwealth failed to exercise "due diligence" in bringing charges against the defendant at the earliest possible time. Further, the lack of "due diligence" provides an independent basis for dismissal under Pa.R.Crim.P. 600(G), regardless of the lack of evasive intent on the part of the Commonwealth.
Id. at 654-55 (internal citations omitted) (emphasis in original).
¶ 17 Instantly, the Commonwealth filed the first complaint against Appellee on March 21, 2006. Therefore, the initial Rule 600 mechanical run date was March 21, 2007. On March 27, 2006, the court appointed counsel for Appellee. At that time, the Commonwealth was also unprepared, because it did not have the results of the field tests. Consequently, the court granted a joint continuance until June 12, 2006. The delay between March 27, 2006 and June 12, 2006 constituted 77 days of excludable delay. See Hunt, supra (explaining joint request for postponement constitutes excludable delay). The new adjusted 365-day run date became June 6, 2007.
¶ 18 On June 12, 2006, the Commonwealth was prepared to proceed. Appellee, however, sought a continuance to retain private counsel. The court continued the matter until August 21, 2006. The delay between June 12, 2006 and August 21, 2006, which Appellee occasioned, constituted 70 days of excludable delay. See Pa.R.Crim.P. 600(C)(3). This delay produced an adjusted run date of August 15, 2007.
¶ 19 Prior to the next listing, the authorities arrested Appellee in Bucks County for unrelated charges. Appellee failed to notify the Commonwealth of his arrest, and the Commonwealth did not learn about Appellee's incarceration until December 2006. In response, the court rescheduled Appellee's preliminary hearing for January 16, 2007. The delay between August 21, 2006 and January 16, 2007 constituted 148 days of excludable delay; Appellee created this delay by failing to inform the Philadelphia authorities about his latest arrest. See id. The new adjusted 365-day run date became January 10, 2008.
¶ 20 On January 16, 2007, the Commonwealth could not proceed because the arresting officer was unavailable. The court continued the case until February 1, 2007. As the Commonwealth had no control over the circumstances resulting in its witness' failure to appear, the 16-day delay between January 16, 2007 and February 1, 2007 is excusable. See Brown, supra. See also Commonwealth v. Corbin, 568 A.2d 635, 638 (Pa.Super. 1990) (explaining "when a witness becomes unavailable towards the end of the . . . run date due to illness, vacation, or other reason not within the Commonwealth's control, the Commonwealth is prevented from commencing the trial within the requisite period despite due diligence, and an extension of time is warranted"). This delay produced an adjusted run date of January 26, 2008.
¶ 21 On February 1, 2007, the Commonwealth could not proceed because the arresting officer was at training. The court continued the case until February 20, 2007. The 19-day delay between February 1, 2007 and February 20, 2007 is excusable. See id. The new adjusted 365-day run date became February 14, 2008. On February 20, 2007, the Commonwealth could not proceed because the arresting officer left the courtroom before Appellee's case was called, and the court (of competent jurisdiction) dismissed the first complaint for lack of prosecution.
¶ 22 The Commonwealth did not file the second complaint until March 19, 2008. At the Rule 600 hearing, the Commonwealth attempted to explain the circumstances surrounding this 393-day delay. The Commonwealth indicated an assistant district attorney had prepared a "re-arrest request" on February 20, 2007, immediately following the dismissal of the first complaint. (N.T. Rule 600 Hearing at 22). A deputy district attorney approved the re-arrest request on March 12, 2007. On March 13, 2007, the deputy district attorney turned over the re-arrest request to a detective. The detective did "a series of things," including "custody checks on [Appellee] to find where he was, preparing a writ to have him brought down to Philadelphia to effectuate re-arrest." ( Id. at 23). Nevertheless, the Commonwealth did not immediately effectuate the re-arrest:
[U]nder the old re-arrest procedure, not the re-file procedure we have now, but the old re-arrest procedure, the defendant . . . had to be physically present in Philadelphia and actually reprocessed. And [the assistant district attorneys] could testify to those facts and explain to the court the procedure that was taken and which was part of the reason why we switched over to the method of refiling. But in order for [Appellee] to be re-arrested, he had to be brought in from state custody to Philadelphia. So in order to do that, the Commonwealth . . . had to prepare a writ and speak with . . . the individual in charge of getting bed space available in the county prisons in order to bring a defendant in from state prison to have them stay here for the purpose of re-arresting them.
( Id. at 23-24).
¶ 23 The court, however, suggested the Commonwealth's explanation for the re-arrest delay was unavailing:
My understanding of the law . . . is that what's at play is the filing of the criminal complaint, and that can be reduced [to] Rule 600 itself, which talks about the filing of a written complaint. . . . It does not talk about re-arrest. It talks about when the Commonwealth actually files a criminal complaint. . . .
* * *
So what you're telling me about is the difficulties of a re-arrest. . . . So be that as it may, I'm not sure it has any legal ramifications in this case at all anyway, but I do not believe that the difficulties under prior procedure of a re-arrest explains the delay in filing, there mere filing of a second complaint.
( Id. at 25-26). The Commonwealth responded by reiterating that under its prior procedures, it could not "reactivate the case" until Appellee was "physically arrested and processed." ( Id. at 26).
¶ 24 Upon review of the record from the Rule 600 hearing, the court found the Commonwealth had not acted with due diligence when it waited for over one year until March 19, 2008 to re-file the charges in a second complaint. Thus, the court deemed the 393-day delay between February 20, 2007 and March 19, 2008 as neither excludable nor excusable. We agree with this determination. The Commonwealth's elaborate explanation of its re-arrest procedures does not explain its delay in the filing of the second complaint or provide a basis to evade Appellee's speedy trial rights under Rule 600. See Hunt, supra; Brown, supra. Although it might help to explain some difficulties inherent in executing a re-arrest, the fact that Appellee was in state custody simply had no real bearing on the Commonwealth's ability to re-file the charges. Meadius and Surovcik recognize Rule 600 has been construed to prevent the withdrawal and re-filing of charges, where the Commonwealth failed to exercise due diligence in bringing the charges against the defendant at the earliest possible time. Further, the Commonwealth's lack of due diligence in filing the second complaint provides an independent basis for dismissal under Pa.R.Crim.P. 600(G), regardless of the lack of evasive intent on the part of the Commonwealth. See Surovcik, supra. Consequently, we agree with the trial court to calculate the Rule 600 adjusted run date from the filing date for the first complaint. See id.
The Commonwealth relies on Commonwealth v. Leatherbury, 499 Pa. 450, 453 A.2d 957 (1982), for the proposition that the time between the dismissal of the first complaint and the filing of a second complaint is excludable. Although this case has not been expressly overruled, Leatherbury pre-dates later cases qualifying it. See, e.g., Commonwealth v. Schafer, 576 A.2d 392, 393 n. 5 (Pa.Super. 1990), appeal denied, 527 Pa. 644, 593 A.2d 417 (1991). Moreover, Leatherbury does not state a bright line rule that the time between the dismissal of the first complaint and the filing of the second complaint is excludable. Further, the facts of Leatherbury are distinguishable from the instant case, both as to the length of time between dismissal of the first complaint and filing of the second complaint and the reasons for the delay.
¶ 25 After the Commonwealth initiated the second complaint on March 19, 2008, the court scheduled a preliminary hearing for April 25, 2008. On April 25, 2008, the Commonwealth could not proceed because the officer was unavailable. The court continued the case until June 17, 2008. As the Commonwealth had no control over the circumstances resulting in its witness' failure to appear, the 53-day delay between April 25, 2008 and June 17, 2008 is excusable. See Brown, supra; Corbin, supra. This delay yielded a final adjusted run date of April 7, 2008. Thereafter, the court conducted the preliminary hearing and arraignment, and Appellee filed his Rule 600 motion on September 9, 2008.
¶ 26 Allowing the Commonwealth latitude, the following chart summarizes the delays in bringing this case to trial: DATES ACTIVITY DAYS EXCLUDABLE ADJUSTED DELAY OR EXCUSABLE RUN DATE 6/6/07 8/15/07 1/10/08 1/26/08 2/14/08 4/7/08
3/21/06- First complaint filed, Appellee 6 No 3/21/07 3/27/06 posted bail, and preliminary hearing scheduled. 3/27/06- Court appointed public defender 77 Excludable; 6/12/06 to represent Appellee and joint request Commonwealth did not have created delay. field test results. Court granted joint continuance. 6/12/06- Commonwealth was prepared to 70 Excludable; 8/21/06 proceed, but Appellee requested Appellee continuance to retain private created delay. counsel. 8/21/06- Appellee did not appear due to 148 Excludable; 1/16/07 his incarceration in Bucks Appellee failed County and state prison for to notify unrelated charges. Court authorities of rescheduled hearing. his location 1/16/07- Commonwealth could not 16 Excusable; 2/1/07 proceed, because arresting witness' failure officer was unavailable. Court to appear was rescheduled hearing. beyond control of Commonwealth 2/1/07- Commonwealth could not 19 Excusable; 2/20/07 proceed, because arresting witness' failure officer was unavailable. Court to appear was rescheduled hearing. beyond control of Commonwealth 2/20/07- Court dismissed first complaint 393 No 2/14/08 3/19/08 for lack of prosecution. Commonwealth did not file second complaint until 3/19/08. 3/19/08- Commonwealth filed second 37 No 2/14/08 4/25/08 complaint and preliminary hearing scheduled. 4/25/08- Commonwealth could not 53 Excusable; 6/17/08 proceed, because arresting witness' failure officer was unavailable. to appear was Appellee not brought down from beyond control state custody. Court of rescheduled hearing. Commonwealth 6/17/08- Court conducted Appellee's 44 No 4/7/08 7/31/08 preliminary hearing. 7/31/08- Court conducted Appellee's 26 No 4/7/08 8/26/08 arraignment. 8/26/08- Court scheduled pretrial 14 No 4/7/08 9/9/08 conference. Appellee filed Rule 600 motion on 9/9/08.¶ 27 Importantly, Appellee filed his Rule 600 motion on September 9, 2008, five months after the date we have calculated as the final adjusted run date (April 7, 2008). See Hunt, supra. Therefore, Appellee had a viable Rule 600 claim when he filed his motion to dismiss. See id. Under these circumstances, the court properly granted Appellee's Rule 600 motion. Id. Accordingly, we affirm the order granting Rule 600 relief.
¶ 28 Order affirmed.
¶ 29 JUDGE BOWES FILES A DISSENTING OPINION.
¶ 1 As I disagree with the majority's conclusion that the Commonwealth violated Pa.R.Crim.P. 600 ("Rule 600"), I respectfully dissent. Contrary to the majority, my review of the record and the applicable legal authority does not support the trial court's determination that the prosecution violated Rule 600 in the case sub judice.
¶ 2 The majority succinctly summarized the factual and procedural posture of this matter. Hence, I will not revisit those facts herein; however, I highlight the following facts that are relevant to the Commonwealth's position that it did not violate Rule 600. This case involves two separate criminal complaints. The Commonwealth filed the original complaint on March 21, 2006. On February 20, 2007, a court of competent jurisdiction dismissed that complaint. The Commonwealth did not withdraw that complaint nor was it dismissed at the request of the Commonwealth. Thereafter, on March 19, 2008, 393 days after the original dismissal, the Commonwealth re-filed the charges against Appellee. The trial court herein dismissed the second criminal complaint, finding that the Commonwealth did not exercise due diligence in re-filing that complaint. ¶ 3 Preliminarily, I note that the plain language of Rule 600 does not implicate a due diligence inquiry until, as calculated from the filing of an existing complaint, the applicable period of time has elapsed and a defendant files a motion to dismiss the charges. Indeed, the language of Rule 600 specifically applies to defendants on bail. However, once a complaint has been dismissed, no charges are pending, the person is no longer a defendant, nor on bail, and Rule 600 would not ordinarily apply. ¶ 4 Nevertheless, our Supreme Court in Commonwealth v. Meadius, 870 A.2d 802 (Pa. 2005), extended the application of Rule 600 to situations where the prosecution has withdrawn an original complaint and subsequently re-filed that complaint. Accordingly, although a Rule 600 due diligence analysis customarily applies to the time period from when the Commonwealth files the active complaint, our courts have construed the rule to prevent "the Commonwealth from filing and withdrawing a set of charges and re-filing them later in order to circumvent the 365-day limitation period of the rule." Commonwealth v. Surovcik, 933 A.2d 651, 654 (Pa.Super. 2007) (citing Meadius, supra). Hence, when the Commonwealth withdraws a criminal complaint and an identical complaint is re-filed, the run date for purposes of Rule 600 may begin from the date the Commonwealth filed the original complaint.
Rule 600(A)(3) provides in pertinent part:
(3) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.
Pa.R.Crim.P. 600(A)(3).
Additionally, Rule 600(G) states:
(G) For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant's attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
Pa.R.Crim.P. 600(G).
¶ 5 The case herein, however, has two key distinguishing factors from Meadius, supra, and Surovcik, supra. First, the Commonwealth did not withdraw the charges at any point, nor did the Commonwealth request that the court dismiss the charges; rather, a competent judicial authority dismissed the complaint without regard to the Commonwealth's position. Both Meadius and Surovcik pertain to cases in which the Commonwealth withdrew the complaint or specifically requested that the court dismiss the charges.
¶ 6 Second, the argument leveled by the defendants in those cases was "that the Commonwealth did not exercise due diligence with respect to this prosecution prior to its withdrawal and re-filing." Surovcik, supra at 655 (emphasis added); see also Meadius, supra at 807 ("we cannot say that the trial court erred in charging the Commonwealth with responsibility for the multiple delays leading up to the withdrawal of charges"). The argument made by Appellee in the instant case and contained in the majority opinion is that the Commonwealth did not exercise due diligence after the dismissal of the first complaint. See Majority Opinion, at 12-15; see also Appellee's brief at 5.
¶ 7 Accordingly, I believe that the majority's conclusion in the underlying case rests upon an improper extension of the rationale of Meadius, supra and Surovcik, supra. The majority opinion in Meadius was limited to the situation where the Commonwealth filed a criminal complaint, withdrew that complaint, filed a second complaint listing identical charges, and did not bring the defendant to trial within one year of the first filing. The factual discussion in Meadius focused exclusively on the Commonwealth's actions prior to the withdrawal of the first complaint. See Meadius, supra at 807-808. The Court held that the Commonwealth did not exercise due diligence in prosecuting the first complaint, it did not speak to the issue of whether the Commonwealth, pursuant to Rule 600, must exercise due diligence in refiling a second complaint.
Meadius was a four-to-three decision with the dissenting justices concluding that there was no authority within Rule 600 for calculating the applicable time periods from a non-existent complaint.
¶ 8 Similarly, in Surovcik, the court considered whether the Commonwealth exercised diligence with respect to the prosecution "prior to the withdrawal of the original charges." Surovcik, supra at 655. This is where the trial court and the majority have erred. Instead of focusing on whether the prosecution exercised due diligence prior to the charges being dismissed, not withdrawn, the trial court and the majority focused on the Commonwealth's explanation for delaying the re-filing. See Majority Opinion at 12-15.
¶ 9 I acknowledge that language contained in Surovcik states that the Commonwealth must act "with due diligence in bringing charges . . . at the earliest possible time." Surovcik, supra at 656. That language, however, must be evaluated in its context. This Court, in analyzing the argument set forth by the defendant in Surovcik, focused on whether the prosecution acted with due diligence prior to withdrawing the charges. Insofar as Surovcik can be read to infer a duty of due diligence after the dismissal of a complaint, when no prosecution is pending, such an interpretation is contrary to Meadius, supra, and the plain language of Rule 600. Additionally, in Surovcik, unlike the underlying case, the Commonwealth could have proceeded with the prosecution of the case at the time it withdrew the charges.
Again, I note that in the present case, the charges were dismissed, not withdrawn by the Commonwealth.
¶ 10 Meadius, supra, and Surovcik, supra, stand for the position that the Commonwealth must exercise due diligence prior to the withdrawal of an original complaint; consequently, I believe that the proper focus of this Court should be on whether the Commonwealth exercised due diligence in prosecuting the original complaint, not on whether it exercised due diligence in re-filing the second complaint. If the Commonwealth exercised due diligence in prosecuting the original criminal complaint, then the time period between the dismissal of the first complaint and the re-filing of the second complaint is irrelevant for purposes of Rule 600. See Meadius, supra.
The time period between the first filing and the re-filing cannot technically be considered excludable time. In Commonwealth v. Booze, 953 A.2d 1263 (Pa.Super. 2008), we delineated the difference between excludable time and excusable delay, stating:
Under Rule 600, there is a distinction between excludable time and excusable delay:
"Excludable time" is defined in Rule 600(C) as the period of time between the filing of the written complaint and the defendant's arrest, . . . any period of time for which the defendant expressly waives Rule 600; and/or such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant's attorney; (b) any continuance granted at the request of the defendant or the defendant's attorney. "Excusable delay" is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth's control and despite its due diligence.
Booze, supra at 1272-1273.
¶ 11 Although the majority has not discussed at length whether the prosecution exercised due diligence in prosecuting the original complaint, it found only six days of non-excludable time and/or excusable delay between the filing of the first complaint and the dismissal of that complaint. See Majority Opinion, at 16. Moreover, unlike the case of Surovcik, supra, the Commonwealth could not have proceeded with the prosecution of its case at the time of the first dismissal as it was missing its key witness. Therefore, it is evident that the learned majority concluded that the Commonwealth exercised due diligence in prosecuting the first complaint; it simply decided that the Commonwealth did not exercise due diligence in re-filing the charges.
¶ 12 Since the prosecution was duly diligent in prosecuting the original complaint and did not withdraw the charges, Meadius, supra, and Surovcik, supra, are inapplicable and the proper run date should be from the filing of the subsequent complaint. Further, 365 non-excludable days did not pass between the filing of the second complaint and the dismissal of that complaint; thus, the trial court erred in dismissing the case pursuant to Rule 600.
¶ 13 In sum, I believe it is error to extend the rationale of Meadius, supra, and Surovcik, supra, to a situation in which the Commonwealth has not withdrawn the charges or requested that the charges be dismissed, and the prosecution exercised due diligence in prosecuting the original complaint. The logical extension of the majority's holding today is that the Commonwealth, pursuant to Rule 600, must exercise due diligence in refiling a criminal complaint or may be barred from re-prosecuting a person after the dismissal of charges. However, the language of Rule 600 does not pertain to such a situation, nor was the rationale in Meadius and Surovcik related to the Commonwealth's exercise of due diligence after the dismissal of criminal charges. As the clear language of Rule 600 does not compel today's result nor does our case law interpreting Rule 600, I am compelled to dissent.
Indeed, the rationale of the majority would require the prosecution to exercise due diligence in prosecuting a non-existent case.