Com. v. Bowersox, N.

• Court: Superior Court of Pennsylvania
• Decided: May 23, 2023
• Docket: 1655 MDA 2022
• Status: Unpublished

Opinion

J-S08044-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : NATHAN ZACHERY BOWERSOX : No. 1655 MDA 2022

Appeal from the Order Entered November 8, 2022 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000159-2020

BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: MAY 23, 2023

The Commonwealth appeals from an order entered by the Court of

Common Pleas of Cumberland County (trial court) granting the motion of the

defendant, Nathan Zachery Bowersox (Appellee), to dismiss charges against

him for violation of Pa.R.Crim.P. 600. For the reasons set forth below, we

reverse.

On November 8, 2019, Appellee was charged by criminal complaint with

driving under the influence (DUI), possession of methamphetamine,

possession of drug paraphernalia, and driving with a suspended license.1

Criminal Complaint. A preliminary hearing was scheduled for January 17,

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 175 Pa.C.S. § 3802(d)(1)(i)-(iii), 35 P.S. § 780-113(a)(16), 35 P.S. § 780- 113(a)(32), and 75 Pa.C.S. § 1543(b)(1.1)(i), respectively. J-S08044-23

2020, but Appellee failed to appear, despite receiving notice of the preliminary

hearing, and the magisterial district court sent the case to the trial court and

closed its file. 1/20 Magisterial District Judge Docket at 1-2; N.T. Rule 600

and Suppression Motions at 10-11, 13-14. Appellee’s arraignment was

scheduled for March 19, 2020 and a bench warrant for Appellee’s arrest was

issued on January 27, 2020. 1/21/20 Notice of Formal Arraignment; Trial

Court Order, 1/27/20.

Appellee was arrested on the bench warrant on November 5, 2020.

N.T., 11/23/20, at 2. A bench warrant hearing was held on November 23,

2020. At this hearing, the Commonwealth was ready to proceed with the

arraignment; however, Appellee’s counsel requested that the trial court

instead remand the case to the magisterial district court for a preliminary

hearing. Id. at 2-3. The trial court granted Appellee’s request and issued an

order on November 23, 2020 remanding the case to the magisterial district

court for that court to schedule a preliminary hearing. Id. at 5; Trial Court

Order, 11/23/20.

The trial court mailed the November 23, 2020 order to the magisterial

district court on November 30, 2020, but the magisterial district court either

did not receive it or lost it and took no action to schedule the preliminary

hearing. Trial Court Opinion and Order, 11/8/22, at 2; N.T. Rule 600 and

Suppression Motions at 5-7, 12-13; Commonwealth Ex. 1. Nothing further

occurred to advance the case to trial until February 18, 2022, over one year

-2- J-S08044-23

later, when the Commonwealth emailed a copy of the order remanding the

case for a preliminary hearing to the magisterial district court. N.T. Rule 600

and Suppression Motions at 12-13; Commonwealth Ex. 3. After receiving the

copy of this order, the magisterial district court reopened the case file and

scheduled a preliminary hearing for March 17, 2022. N.T. Rule 600 and

Suppression Motions at 13-14. This preliminary hearing was held on March

17, 2022, and the DUI and driving with a suspended license charges were held

for court. 3/22 Magisterial District Judge Docket at 3-4. The magisterial

district court again sent the case to the trial court on March 21, 2022, and the

trial court scheduled Appellee’s trial for July 15, 2022. Trial Court Docket at

9; 5/9/22 Acknowledgement of Arraignment.

On June 8, 2022, Appellee filed a motion to dismiss for violation of Rule

600 and a motion to suppress. The trial court held a hearing on both motions

on August 1, 2022. On November 8, 2022, the trial court granted Appellee’s

motion to dismiss for violation of Rule 600, ruling that the 452 days of delay

between the trial court’s order remanding the case to the magisterial district

court for a preliminary hearing and the Commonwealth’s sending of the order

to the magisterial district court on February 18, 2022 was not excludable and

that the Commonwealth had therefore failed to bring Appellee to trial within

Rule 600’s time limit. Trial Court Order, 11/8/22; Trial Court Opinion and

Order, 11/8/22, at 2-3. The trial court accordingly dismissed the charges

against Appellee with prejudice and dismissed the motion to suppress as moot.

-3- J-S08044-23

Trial Court Order, 11/8/22. The Commonwealth timely appealed this order on

December 2, 2022, and argues in this appeal that it did not violate Rule 600

because the November 23, 2020 to February 18, 2022 period was excludable

time.

Pennsylvania Rule of Criminal Procedure 600 requires that the

Commonwealth bring a defendant to trial within 365 days from the date on

which the criminal complaint was filed. Pa.R.Crim.P. 600(A)(2)(a);

Commonwealth v. Barbour, 189 A.3d 944, 947 (Pa. 2018). Rule 600

provides that in determining whether the 365-day period has expired, “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” and that

“[a]ny other periods of delay shall be excluded from the computation.”

Pa.R.Crim.P. 600(C)(1); see also Commonwealth v. Harth, 252 A.3d 600,

615 (Pa. 2021).

If the defendant is not brought to trial within the 365-day period

prescribed by Rule 600, he may file a motion at any time before trial

requesting dismissal of the charges against him with prejudice. Pa.R.Crim.P.

600(D)(1); Harth, 252 A.3d at 615. When such a motion is filed, the trial

court is required to conduct a hearing and identify each period of delay and

attribute it to the responsible party to adjust the 365-day period and

determine the date by which the defendant must be tried. Pa.R.Crim.P.

-4- J-S08044-23

600(D)(1); Barbour, 189 A.3d at 947. If the trial court finds that the

defendant was not brought to trial within Rule 600’s time limit, it must dismiss

the charges and discharge the defendant. Harth, 252 A.3d at 615.

We ordinarily review a court’s grant of a Rule 600 motion to dismiss for

abuse of discretion. Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa.

2012); Commonwealth v. Selenski, 994 A.2d 1083, 1087 (Pa. 2010). The

interpretation of Rule 600, however, is an issue of law subject to our plenary

review. Harth, 252 A.3d at 614 n.13; Barbour, 189 A.3d at 954;

Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).

As the trial court correctly concluded, Trial Court Opinion and Order,

11/8/22, at 2, the critical issue here is whether the period from November 23,

2020 to February 18, 2022 is excludable time. If it is not, Rule 600 was clearly

violated, as that period of 452 days by itself exceeds the 365 days within

which the Commonwealth was required to bring Appellee to trial. If it is

excludable, however, the Commonwealth did not fail to bring Appellee to trial

within Rule 600’s time limit. The period from January 17, 2020, when Appellee

failed to appear at his preliminary hearing, until November 5, 2020, when he

was arrested on a bench warrant, was caused by Appellee and is therefore

excludable. Barbour, 189 A.3d at 956 (where defendant fails to appear for

pretrial proceeding despite receiving notice, all time until he is apprehended

is excluded from Rule 600 calculation regardless of Commonwealth’s diligence

or lack thereof in apprehending him); Commonwealth v. Wright, 178 A.3d

-5- J-S08044-23

884, 886-89 (Pa. Super. 2018) (because delay was caused by defendant’s

failure to appear, entire 25-year period before he turned himself in was

excluded even if Commonwealth failed to exercise diligence in locating him).

The total of all other periods of time, if the November 23, 2020 to February

18, 2022 period is excluded, was only 198 days at the time Appellee filed his

Rule 600 motion and would have been 235 days at the date of his scheduled

trial, and is therefore well within Rule 600’s 365-day limit.

The trial court concluded that the period of delay from November 23,

2020 to February 18, 2022 was not excludable, even though it was a result of

a breakdown in court procedures rather than actions by the Commonwealth,

because the Commonwealth failed to show that it acted with due diligence.

Trial Court Opinion and Order, 11/8/22, at 2. If this delay were solely a judicial

delay for which the defendant bore no responsibility, the trial court’s

conclusion would be correct.

Where a delay is not caused by the defendant, it is not excludable from

the Rule 600 calculation unless the Commonwealth shows by a preponderance

of the evidence that it acted with due diligence to bring the defendant to trial

within Rule 600’s time limit. Harth, 252 A.3d at 617-18; Bradford, 46 A.3d

at 701-02; Commonwealth v. Thompson, 136 A.3d 178, 182-83 (Pa.

Super. 2016). In Bradford, our Supreme Court held that delay caused by

failure to transmit the case between a magisterial district court and a common

pleas court was excludable based on evidence that the Commonwealth acted

-6- J-S08044-23

with due diligence because it had a system to monitor cases to bring them to

trial within Rule 600’s time limit and the breakdown in court procedures

prevented that tracking system from operating. 46 A.3d at 695-96, 704-05.

Here, in contrast, the Commonwealth introduced no evidence that it took any

steps between November 23, 2020 and February 18, 2022 to monitor whether

the case was moving forward to trial, no evidence that it had any system to

track the case, and no evidence that the communications failure between the

magisterial district court and the trial court affected its ability to track the

case. The trial court therefore correctly concluded that the Commonwealth

had not shown the due diligence that it must show to exclude judicial delay

from the Rule 600 calculation.

The 452-day delay in this case, however, was not merely a judicial

delay, it was also caused by Appellee. Delays caused by the defendant do not

count toward Rule 600’s 365-day limit for bringing a defendant to trial.

Barbour, 189 A.3d at 955-56, 958. Where the defendant has delayed his

trial by failing to appear for a court hearing of which he had notice, no

assessment of the Commonwealth’s diligence is necessary to exclude that

delay from the Rule 600 computation. Barbour, 189 A.3d at 956; Wright,

178 A.3d at 887-89; Commonwealth v. Vesel, 751 A.2d 676, 680 (Pa.

Super. 2000).

The reason that this case did not move forward between November 23,

2020 and February 18, 2022 is that the preliminary hearing had not been held.

-7- J-S08044-23

That preliminary hearing would have been held in January 2020 and this

period of delay never would have occurred if Appellee’s conduct had not

delayed the proceedings. The preliminary hearing was originally scheduled

for January 17, 2020, but Appellee failed to appear despite receiving notice.

1/20 Magisterial District Judge Docket at 1; N.T. Rule 600 and Suppression

Motions at 10-11; N.T., 11/23/20, at 2. The case in fact proceeded toward

trial at that time, as the magisterial district court sent the case to the trial

court and scheduled Appellee’s arraignment when he failed to appear on

January 17, 2020. 1/20 Magisterial District Judge Docket at 1-2.

In addition, the delay after Appellee’s apprehension occurred as a result

of a request by Appellee and not as a result of the Commonwealth failing to

move the case forward. The Commonwealth was prepared to proceed with

the arraignment after Appellee was apprehended. N.T., 11/23/20, at 2. The

event that led to the breakdown in court operations and the 452-day delay

was the remand to the magisterial district court that was requested by

Appellee. Id. at 2-3. The delay caused by Appellee therefore did not end on

November 5, 2020 when he was apprehended or on November 23, 2020, it

continued until the remand and preliminary hearing that he requested were

completed on March 17, 2022.

Because the delay between November 23, 2020 and February 18, 2022

was caused by Appellee, the trial court erred in failing to exclude those 452

days of this delay from its Rule 600 calculation. As discussed above, once

-8- J-S08044-23

that erroneously included time is excluded, the record is clear that the

Commonwealth did not fail to bring Appellee to trial within Rule 600’s 365-day

time limit. Accordingly, we reverse the trial court’s order dismissing the

charges against Appellee and remand this case for further proceedings,

including addressing Appellee’s motion to suppress.

Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/23/2023

-9-