Com. v. Kennedy, C.

Superior Court of Pennsylvania

Com. v. Kennedy, C.

DecidedJanuary 31, 2025

Docket2163 EDA 2023

StatusUnpublished

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Com. v. Kennedy, C., (Pa. Ct. App. 2025).

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Opinion

J-A20011-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CHARLES KENNEDY : No. 2163 EDA 2023

Appeal from the Order Entered July 24, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000244-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and DUBOW, J.

MEMORANDUM BY LAZARUS, P.J.: FILED JANUARY 31, 2025

The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Philadelphia County, granting Charles

Kennedy’s Motion to Dismiss, with prejudice, pursuant to Pa.R.Crim.P. 600.

After review, we affirm on the basis of the well-written opinion authored by

the Honorable Shanese I. Johnson. See Trial Court Opinion, 10/26/23, at 1-

9.

On August 19, 2021, Kennedy was arrested and charged with drug

offenses and violations of the Pennsylvania Uniform Firearms Act. Thus, as

explained by the trial court, his mechanical run date was August 19, 2022.

See id. at 2-3. Additionally, the trial court concluded that there were 322

additional days of delay attributable either to the trial court or the defense,

which resulted in an adjusted mechanical run date of July 7, 2023. See id.

Nevertheless, Kennedy’s trial did not begin until August 2, 2023. See id. J-A20011-24

Consequently, Kennedy filed his Rule 600 motion, which the trial court granted

prior to the start of trial because the Commonwealth failed to act diligently on

several dates, thereby causing delay. See id. (trial court concluding total of

391 days attributable to Commonwealth delay, and Commonwealth failed to

act diligently on 182 of those days).

The Commonwealth filed the instant timely appeal. Both the

Commonwealth and the trial court have complied with Pa.R.A.P. 1925. The

Commonwealth now raises the following claim for our review: “Did the [trial]

court err by dismissing all charges under Rule 600, where fewer than 365 days

of includable time passed between the filing of the criminal complaint and the

dismissal of the charges?” Commonwealth’s Brief, at 6.

In particular, the Commonwealth challenges ten different instances of

delay as excludable time.1 See id. at 15-21. The Commonwealth contends

that the trial court improperly attributed time to the Commonwealth on the

basis that it had failed to prepare a “Firearms Identification Unit” report (FIU

report) that “did not exist,” failed to secure the testifying officer for multiple

hearing dates, and failed to provide a drug lab report in discovery.

Commonwealth’s Brief, at 15-20.

____________________________________________

1 We note that the trial court only attributed four of the challenged ten instances to the Commonwealth, and the other six were either attributed to the trial court or the defense. See Trial Court Opinion, 10/26/23, at 2-9 (9- day delay due to courthouse flooding attributed to court; 61 days over three delays attributed to court where defendant not brought down for preliminary hearing; 32 days attributed to defense for appointment of new counsel; 112 days attributed to defense for new counsel to prepare for trial).

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As the trial court has aptly summarized our standard of review and

controlling case law, we need not do so here. However, we are cognizant that

our Supreme Court recently decided Commonwealth v. Lear, 325 A.3d 552

(Pa. 2024). In Lear, our Supreme Court created an exception in our Rule 600

precedent and case law, which no longer requires the Commonwealth to act

diligently during “other periods of delay,” which include, but are not limited

to, the COVID-19 pandemic as well as “medical, weather, and security related

emergencies.”2 See id. at 563; see also id. at n.9.

2 In our view, Lear does not abrogate Commonwealth v. Harth, 252 A.3d

600 (Pa. 2021). See Harth, 252 A.3d at 617 (holding “before a trial court excludes time from its Rule 600 time computation on the basis of ‘judicial delay,’” the Commonwealth must “demonstrate that it acted with due diligence”); see also Lear, 325 A.3d at 561-63 (distinguishing Harth as a narrow exception, explaining that Harth does not apply to instances such as COVID-19 pandemic, but otherwise upholding Harth and declining to abrogate). Further, in Lear, our Supreme Court explained that Harth does not apply to “other periods of delay” under Rule 600(C)(1), such as the COVID-19 pandemic, courthouse floods, security issues, or medical emergencies. See id. at n.9. As a result, we do not read Lear to abrogate Harth.

Instantly, the dissent concludes that there are 59 days that are not attributable to the Commonwealth as “other periods of delay” and concludes that, under Lear, we need not address the Commonwealth’s due diligence. See Dissent, at 1-3.

In our view, the dissent’s conclusion can only be supported if the Lear Court had fully abrogated Harth, which it did not. The dissent avoids this conclusion by categorizing 59 days as “other periods of delay.” See Dissent, at 3. However, this reading ignores the still-valid analysis under Harth. Indeed, those 59 days were not the cause of a flood, pandemic, security emergency, or other emergency that otherwise shutdown the courthouse. See Lear, 325 A.3d 563 (discussing COVID-19 Pandemic causing statewide shutdown of (Footnote Continued Next Page)

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Nevertheless, we conclude that, instantly, the trial court has not run

afoul of our Supreme Court’s holding in Lear because, as explained above,

the trial court properly attributed the court delays to the court rather than the

Commonwealth and did not otherwise burden its analysis with now-

unnecessary due diligence analysis for those delays. See Trial Court Opinion,

10/26/23, at 1-9 (discussing and analyzing Commonwealth due diligence for

only Commonwealth delays; noting court delays such as flooding and properly

attributed time to court).

Mindful of the record, the applicable standard of review, the relevant

case law, and the parties’ briefs, we affirm on the basis of the trial court

opinion. See id. at 1-9. Consequently, we afford the Commonwealth no

courthouses and restrictive protocols as outside ambit of Harth exception). Rather, the 59 days of delay were not as expansive or extreme as those contemplated in Lear. Indeed, as the dissent points out, the trial court concluded that there were two facts that caused the delay on both 9/16/21 and 12/14/21: (1) that the Commonwealth was not ready; and (2) that the defense was not brought down for the preliminary hearing. See Trial Court Opinion, 10/26/23, at 6. However, the trial court attributed both of these postponements to the Commonwealth because it failed to act with due diligence. See id. We note that these were not the only two postponements where the defendant was not brought down from the jail. See id. at 3-4 (summarizing postpones 10/14/21, 11/3/21, and 11/24/21, where defendant was not brought down and concluding these were “court” postponements). Therefore, we conclude that these periods were either Commonwealth delays where the Commonwealth failed to exercise the requisite due diligence, or court delays where the Commonwealth failed to exercise due diligence under Harth. Accordingly, we conclude that Harth is applicable and that the trial court appropriately attributed those 59 days to the Commonwealth where it was not acting with requisite due diligence.

-4- J-A20011-24

relief. The parties are directed to attach a copy of the trial court’s opinion in

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