Com. v. Holbrook, A.

• Court: Superior Court of Pennsylvania
• Decided: November 25, 2020
• Docket: 2166 EDA 2019
• Status: Unpublished

Opinion

J-A19021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : AARON HOLBROOK : No. 2166 EDA 2019

Appeal from the Order Entered July 17, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001429-2018

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: Filed: November 25, 2020

The Commonwealth appeals from the order dismissing the charges

against Aaron Holbrook pursuant to Rule 600 of the Rules of Criminal

Procedure, the prompt trial rule. See generally Pa.R.Crim.P. 600. The

Commonwealth argues the trial court erred in finding it did not exercise due

diligence in bringing Holbrook to trial within the required time. We affirm.

On October 9, 2017, the police filed a criminal complaint against

Holbrook, charging him with various offenses, including multiple violations of

the Uniform Firearms Act.1 The trial court continued Holbrook’s preliminary

hearing once at the joint request of the parties in October 2017, and twice at

the Commonwealth’s request, in November 2017 and January 2018. Following

a preliminary hearing in February 2018, and formal arraignment in March

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1 See 18 Pa.C.S.A. §§ 6105, 6106, and 6108. J-A19021-20

2018, Holbrook filed a motion to quash, and twice requested continuances of

the hearing on the motion. The court denied the motion after a hearing in May

2018. At a scheduling conference later that month, it set a pre-trial motions

hearing for September 13, 2018, and scheduled trial for October 29, 2018.

Holbrook thereafter filed a motion to suppress2 and a motion for release

on nominal bail. See Pa.R.Crim.P. 600(D) (providing for release on nominal

bail when defendant is held in pretrial incarceration more than 180 days after

filing of complaint). The court granted the motion for release. It then held the

pre-trial motions hearing according to schedule and denied Holbrook’s motion

to suppress. However, on the first scheduled trial date, October 29, 2018,

Holbrook sought and obtained a continuance of the trial. He did the same at

the next scheduled trial date, January 7, 2019, and the court continued the

trial to April 22, 2019.

On that day, the Commonwealth orally asked the court to continue trial

because a necessary witness, a police officer, would be in mandatory training

for the remainder of the week. The court granted the continuance. See N.T,

4/22/19, at 3; see also Docket Entry No. 75, 4/22/19. The court crier

proposed rescheduling trial for July 8, 2019, but the trial judge responded,

“I’m sorry, that’s not a good date for me.” N.T, 4/22/19, at 3. The crier then

suggested July 22, 2019. The Commonwealth responded, “That’s a good date

2 He filed the motion on June 7, 2018.

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for the Commonwealth,” and the court rescheduled trial for that date. Id. at

4. The Commonwealth did not mention any potential Rule 600 issue.

On June 20, 2019, Holbrook filed a motion to dismiss under Rule 600(A).

At a hearing, the parties agreed that prior to the Commonwealth’s April 22,

2019 continuance request, the adjusted run date was June 9, 2019, and that

the only dispute was whether the Commonwealth’s April 22 request had

further extended the run date. See Trial Court Opinion, filed 9/26/19, at 3

(citing N.T., 7/17/19, at 16); see also N.T., 7/17/19, at 6. The officer testified

at the hearing that he had participated in mandatory firearms and plainclothes

training on April 23 through April 26, 2019. N.T., 7/17/19, at 12-14. The

officer could not recall when he had been scheduled for this training, but the

prosecutor asserted that he had first informed her of his training on April 22.

Id. at 12, 16, 18.

Holbrook argued the Commonwealth had not acted with due diligence

in continuing trial past the Rule 600 run date. He pointed out that the

Commonwealth had not alerted the Court to the Rule 600 issue when

requesting the continuance, had not asked for an earlier trial date, and had

not asked to begin the trial on April 22, when the officer was in court and

could give testimony. See id. at 6-8; 21-22.

The Commonwealth responded that the court should rule the delay

excusable, because the officer was a necessary witness and the training had

been mandatory. See id. at 16, 18. The Commonwealth further argued that

when it requested the continuance, it “believed that it had been given the

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earliest possible date . . . subject to the trial court’s calendar[.]” Trial Ct. Op.

at 4 (citing N.T., 7/17/19, at 17-19). Regarding whether the court had

rescheduled trial for the earliest possible date, the prosecutor pointed out that

“the docket doesn’t indicate otherwise[.]” N.T., 7/17/19, at 16.

The court granted the motion and dismissed the charges. The trial court

explained that “[a]lthough the officer’s unavailability was beyond the

Commonwealth’s control, once it became apparent that the trial was unlikely

to commence in a timely manner, the Commonwealth was still required to be

diligent in its efforts to ensure that [Holbrook] had a speedy trial within the

confines of Rule 600(A).” Trial Ct. Op. at 4-5. The court stated that

Commonwealth therefore had an obligation “to inquire whether the court could

accommodate an earlier trial date, prior to the adjusted run date,” rather than

“merely accep[t]” the new date. Id. at 5, 7. The court stated that had the

Commonwealth kept track of the Rule 600 date and raised the issue, the court

could have inquired whether another courtroom was available on an earlier

date. Id. at 5-6. The court pointed out the Commonwealth itself could have

sought an earlier date in a different courtroom. Id. at 7-8. The court concluded

that “the Commonwealth failed to present a scintilla of evidence that it put

forth any effort to comply with Rule 600 or exhibited any sense of urgency to

try this case[.]” Id. at 8.

The Commonwealth appealed and presents the following issue: “Did the

trial court err in dismissing the charges against [Holbrook] under Rule 600,

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where the time limit was not violated and the Commonwealth was duly diligent

in any event?” Commonwealth’s Br. at 5.

“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.

Carter, 204 A.3d 945, 947 (Pa.Super. 2019) (quoting Commonwealth v.

Bethea, 185 A.3d 364, 370 (Pa.Super. 2018), appeal denied, 219 A.3d 597

(Pa. 2019)). We have described abuse of discretion as follows:

Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.

Id. (quoting Bethea, 185 A.3d at 370). Our scope of review is limited to the

evidence of record from the Rule 600 hearing, which we view in the light most

favorable to the prevailing party, and the trial court’s findings. Bethea, 185

A.3d at 370.

Rule 600 provides that trial “shall commence within 365 days from the

date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). If trial does

not begin before that deadline, the defendant may move to dismiss the

charges. Pa.R.Crim.P. 600(D)(1). Deciding a Rule 600 motion entails the

following analysis. First, the court must determine the “mechanical run date”

– that is, 365 days from the date of the filing of the complaint. Bethea, 185

A.3d at 371. Second, the court must determine whether any periods of delay

are excludable. Id. Excludable time for this purpose includes several possible

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periods of time: (1) the time between the filing of the written complaint and

the defendant's arrest, if the defendant could not be apprehended because his

whereabouts was unknown and could not be determined by due diligence; (2)

any time for which the defendant expressly waives Rule 600; (3) delay

resulting from the unavailability of the defendant or the defendant's attorney,

and (4) any continuance at the request of the defendant or the defendant's

attorney. Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004).

We “add the amount of excludable time, if any, to the mechanical run date to

arrive at an adjusted run date.” Bethea, 185 A.3d at 371 (quoting

Commonwealth v. Wendel, 165 A.3d 952, 956 (Pa.Super. 2017)) (

emphasis omitted).

If the trial date was after the adjusted run date, we then must determine

whether the additional delay was excusable. Excusable delay for purposes of

Rule 600 is any delay that was outside the control of the Commonwealth and

not the result of the Commonwealth’s lack of diligence. Hunt, 858 A.2d at

1241-42. If the Commonwealth does not bring the defendant to trial within

the time required under Rule 600(A)(2)(a), the trial court must dismiss the

charges. Bethea, 185 A.3d at 371.

The Commonwealth first contends the court erred in dismissing the

charges because, it claims, Holbrook did not file a written Rule 600(A) motion.

As the Commonwealth did not raise this issue before the trial court, or include

it in its Pa.R.A.P. 1925(b) statement, it is waived. See Pa.R.A.P. 302(a),

1925(b)(4)(vii). The Commonwealth further committed waiver by not

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including the issue in its statement of questions involved. See Pa.R.A.P.

2116(a). In any event, a written motion to dismiss appears on the trial court’s

docket and is in the certified record. See Docket Entry, 6/20/19; Mot. for

Dismissal, 6/20/19.

The Commonwealth next argues the court erred in calculating the

adjusted run date because it did not exclude the period between Holbrook’s

filing of a motion to suppress on June 7, 2018, and the court’s denial of that

motion on September 13, 2018. The Commonwealth argues it diligently

responded to the motion and litigated it at the first listing.

The Commonwealth has waived this argument as well, by failing to raise

it during the proceedings below or in its Rule 1925(b) statement. See

Pa.R.A.P. 302(a), 1925(b)(4)(vii). In fact, as the trial court points out in its

Rule 1925(a) opinion, the Commonwealth asserted at the hearing on the

motion to dismiss that the only period in contest was the delay caused by its

final continuance request. See Trial Ct. Op. at 3; N.T., 7/17/19, at 16. The

parties agreed that the court had rescheduled trial for a date exceeding the

previous adjusted run date. See Trial Ct. Op. at 3; N.T., 7/17/19, at 6, 16.

Moreover, Holbrook’s filing of a motion to suppress did not cause any

delay here. By the time he filed the motion, the court had already set dates

both for a pre-trial motions hearing and trial itself, and the court ruled on

Holbrook’s motion to suppress according to that schedule. See

Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999) (holding delay caused

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by the filing of pretrial motion is only attributable to defense if it postponed

start of trial).

The Commonwealth’s final argument is that the court erred in failing to

excuse the delay caused by the Commonwealth’s last continuance, on April

22, 2019, due to the officer’s training, because the delay was beyond the

Commonwealth’s control. See Commonwealth’s Br. at 19-20. The

Commonwealth argues it presented evidence that the officer had plainclothes

training from April 23 to April 30, 2019, and that due to a recent rash of thefts,

the training was both mandatory and necessary. Id. at 20-21.

The Commonwealth further claims the court abused its discretion by

holding it was not diligent for seeking a docket notation stating the delay

caused by the officer training was excusable. Id. at 23. The Commonwealth

also argues the court abused its discretion in finding it did not act with due

diligence by failing to seek an earlier trial date in a different courtroom. Id. In

addition, the Commonwealth asserts that the court had no basis to conclude

it was unaware of the impending Rule 600 deadline when it requested the

continuance, as “the issue never came up at the time of the continuance.” Id.

at 24.

“Due diligence is fact-specific, to be determined case-by-case; it does

not require perfect vigilance and punctilious care, but merely a showing the

Commonwealth has put forth a reasonable effort.” Commonwealth v.

Selenski, 994 A.2d 1083, 1089 (Pa. 2010). “[T]he Commonwealth must do

everything reasonable within its power to guarantee that a trial begins on

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time,” Commonwealth v. Colon, 87 A.3d 352, 359 (Pa.Super. 2014)

(quoting Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.Super.

2007)), and it bears the burden of proving by a preponderance of the evidence

that it exercised due diligence. Commonwealth v. Plowden, 157 A.3d 933,

941 (Pa.Super. 2017).

Due diligence in the Rule 600 context requires the Commonwealth,

among other things, to seek to list a case for trial before the Rule 600 deadline.

See Ramos, 936 A.2d at 1102. Where compliance with the Rule is a potential

issue, the Commonwealth must be proactive and bring the scheduling problem

to the court’s attention. See Commonwealth v. Aaron, 804 A.2d 39, 44

(Pa.Super. 2002) (en banc).3 Dismissal is appropriate where the

Commonwealth fails to monitor the Rule 600 deadline adequately, and

passively relies upon the court to schedule trial before the deadline.

Commonwealth v. Sloan, 67 A.3d 1249, 1254 (Pa.Super. 2013).

As the trial court concluded, while the officer’s training schedule may

have been beyond the Commonwealth’s control, the Commonwealth was still

required to prove that once it discovered the need for a continuance, it raised

the Rule 600 issue and asked the court to reschedule trial for a date before ____________________________________________

3 See also Commonwealth v. Staten, 950 A.2d 1006, 1010 (Pa.Super. 2008) (stating we “will find that the Commonwealth acted with due diligence if, prior to the expiration of the mechanical run date, the prosecutor indicates readiness to try the case and requests the earliest possible trial date consistent with the [trial] court’s business”) (quoting Commonwealth v. Preston, 904 A.2d 1, 13 (Pa.Super. 2006) (brackets omitted)).

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the run date. Although the Commonwealth was not required to submit a

written request for an earlier date in another courtroom, or to request a docket

notation to memorialize its attempts, it bore the burden of proving that the

delay occurred despite its due diligence.4 The Commonwealth failed in carrying

this burden, as nothing suggests that it made any attempt to alert the trial

court to the looming Rule 600 problem or secure a trial date within the

required time. Rather, as the Commonwealth itself observes, “the issue never

came up at the time of the continuance.” Commonwealth’s Br. at 24. This is

insufficient. See Sloan, 67 A.3d at 1254; Staten, 950 A.2d at 1010; Aaron,

804 A.2d at 44. The trial court did not abuse its discretion in concluding that

the Commonwealth was not duly diligent and we affirm the order dismissing

the charges.

Order affirmed.

President Judge Panella joins the memorandum.

Judge McCaffery concurs in the result.

4 But cf. Pa.R.Crim.P. 600(C)(3)(a) (requiring judge to record identity of the party requesting a continuance, the party to whom resulting delay will be attributed, and whether time is excludable).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/25/20

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